95-3866. Department Hearings and Appeals Procedures; Cooperative Relations; Grazing AdministrationExclusive of Alaska  

  • [Federal Register Volume 60, Number 35 (Wednesday, February 22, 1995)]
    [Rules and Regulations]
    [Pages 9894-9971]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 95-3866]
    
    
    
    
    [[Page 9893]]
    
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    Part II
    
    
    
    
    
    Department of the Interior
    
    
    
    
    
    _______________________________________________________________________
    
    
    
    Office of the Secretary
    
    
    
    Bureau of Land Management
    
    
    
    _______________________________________________________________________
    
    
    
    43 CFR Parts 4, 1780, and 4100
    
    
    
    Department Hearings and Appeals Procedures; Cooperative Relations; 
    Grazing Administration; Exclusive of Alaska; Final Rule
    
    Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / 
    Rules and Regulations 
    [[Page 9894]] 
    
    DEPARTMENT OF THE INTERIOR
    
    Office of the Secretary
    
    43 CFR Part 4
    
    Bureau of Land Management
    
    43 CFR Parts 1780 and 4100
    
    [WO-400-1110-00 24 1A]
    RIN 1004-AB89
    
    
    Department Hearings and Appeals Procedures; Cooperative 
    Relations; Grazing Administration--Exclusive of Alaska
    
    AGENCY: Office of the Secretary and the Bureau of Land Management, 
    Interior.
    
    ACTION: Final rule.
    
    -----------------------------------------------------------------------
    
    SUMMARY: This final rule amends the regulations that govern how the 
    Secretary of the Interior, through the Bureau of Land Management (BLM), 
    administers livestock grazing. This rule applies to all lands on which 
    BLM administers livestock grazing. This rule also amends the Department 
    of the Interior's appeals regulations pertaining to livestock grazing 
    to provide consistency with administrative remedies provided for in the 
    grazing regulations, increases public participation in the management 
    of the public grazing lands, and amends the regulations on cooperative 
    relations to reflect changes in the organization of certain advisory 
    committees. The changes will improve the management of the Nation's 
    public rangeland resources.
    
    DATES: This rule will be effective August 21, 1995.
    
        Section 4130.8-1(d) will not be implemented until the grazing year 
    beginning March 1, 1996.
    
    ADDRESSES: Inquiries should be sent to the Director, Bureau of Land 
    Management, U.S. Department of the Interior, Room 5555, Main Interior 
    Building, 1849 C Street NW., Washington, DC 20240.
    
    FOR FURTHER INFORMATION CONTACT: Charles Hunt, 202-208-4256.
    
    SUPPLEMENTARY INFORMATION:
    
    I. Introduction
    II. Major Elements of the Department's Program To Promote Healthy 
    Rangelands
    III. Summary of Rules Adopted
    IV. General Comments
    V. Section-by-Section Analysis and Responses to Public Comments
    VI. Procedural Matters
    VII. Regulatory Text
    
    I. Introduction
    
        This rule governs the Bureau of Land Management's (BLM) 
    administration of livestock grazing on public rangelands. The 
    provisions of this rule will ensure proper administration of livestock 
    grazing on the public rangelands. Many of the provisions will result in 
    greater consistency between the administration of grazing on public 
    rangelands by BLM and administration of grazing on National Forest 
    System lands by the United States Forest Service (Forest Service). The 
    rule is promulgated under the principal authorities of the Federal Land 
    Policy and Management Act (FLPMA) of 1976 (43 U.S.C. 1739, 1740), and 
    the Taylor Grazing Act of 1934 (TGA) (43 U.S.C. 315a-r).
        An advance notice of proposed rulemaking was published in the 
    Federal Register on August 13, 1993 (58 FR 43208). A notice of intent 
    to prepare an associated environmental impact statement (EIS) was also 
    published in the Federal Register on July 13, 1993 (58 FR 37745). The 
    Department also developed a booklet entitled Rangeland Reform '94, 
    describing the Department of the Interior's (Department) proposal. 
    Approximately 35,000 copies were distributed in late August and 
    September of 1993 to all BLM grazing permittees and lessees, interested 
    Congressional staff, and other interested parties. The Department 
    received a total of about 12,600 letters from about 8,000 persons on 
    the advance notice of proposed rulemaking, notice of intent to prepare 
    an EIS, and the Rangeland Reform '94 summary booklet. The Department 
    considered these comments in identifying and refining key components of 
    the rangeland improvement effort and in preparing a proposed rule and a 
    draft EIS.
        During a three-month period beginning November 17, 1993, Secretary 
    of the Interior Bruce Babbitt (Secretary) met on 20 occasions around 
    the West with groups that included western governors, State and local 
    officials, ranchers, environmentalists and other public land users. He 
    visited local groups in Colorado, Wyoming, and Oregon who were already 
    engaged in addressing how land management decisions should be made, and 
    participated in extensive discussion about the components of rangeland 
    improvement. These meetings resulted in many productive suggestions 
    that were reflected in the proposed rule. Additionally, at the 
    invitation of Colorado's Governor Roy Romer, the Secretary met on nine 
    separate occasions with a group of Colorado State and local officials, 
    ranchers, conservationists and other land users in Denver and Gunnison, 
    Colorado, for discussions regarding a process for building a consensus-
    driven local approach to rangeland management. Similar meetings and 
    follow-up discussions took place in Idaho, Oregon, and Nevada, in 
    addition to meetings in Arizona, New Mexico, Utah and Wyoming. These 
    meetings with the Secretary involved hundreds of hours of discussion.
        On March 25, 1994, the Department published proposed rules in the 
    Federal Register (59 FR 14314), with a 120 day comment period to July 
    28, 1994. Subsequently, at the request of commenters, the comment 
    period was extended through September 9, 1994.
        On May 13, 1994, the Department published in the Federal Register 
    (59 FR 25118) a notice of availability of the draft EIS. Approximately 
    11,000 copies of the draft EIS were mailed to State and Federal 
    legislators, western governors, major industry and environmental 
    groups, the media, individuals who had commented on the advance notice 
    of proposed rulemaking, and anyone else who requested a copy. All BLM 
    permittees and lessees were mailed an executive summary, and provided a 
    copy of the full document on request. Copies were also available 
    through all BLM State Offices as well as Forest Service Regional 
    Offices. The draft EIS analyzed in detail the proposed action and 
    alternatives for improving the management of the Nation's public 
    rangelands, including the proposed rule changes. On June 8, 1994, BLM 
    and the Forest Service held 48 hearings throughout the West on the 
    draft EIS and the proposed rulemakings; one hearing was also held that 
    day at BLM's Eastern States Office in Virginia. Hearings were preceded 
    by open houses staffed by Federal personnel to answer individual 
    questions about the proposed rule. The location and procedures for the 
    open houses and hearings were published in the May 16, 1994, Federal 
    Register and announced in news releases. More than 1,900 people 
    testified at the hearings. A transcript was made of each hearing. The 
    transcripts are part of the public comment record and were considered 
    during preparation of this final rule.
        The Department received and considered more than 20,000 letters 
    from over 11,000 persons on the notice of proposed rulemaking and the 
    draft EIS. These letters included over 38,000 individual comments. The 
    specific aspects of the notice of proposed rulemaking generating the 
    most comments were the definitions, grazing fees, standards and 
    guidelines for grazing, and Resource Advisory Councils (RACs). The 
    objectives statement, mandatory qualifications, cooperative range 
    improvement [[Page 9895]] agreements, water rights, permits, and 
    prohibited acts also generated a great number of comments. Many letters 
    expressed opinions that the overall rangeland improvement proposal was 
    a disincentive for good stewardship, would have major economic impacts 
    on rural western communities, and would result in the ``taking'' of 
    private property. Others supported aspects of the proposal, such as 
    broadening participation in the decisionmaking process, requiring 
    permittees or lessees to be good stewards, cancellation of permits for 
    nonuse, and nonmonetary settlement of minor violations. All original 
    letters and transcripts have been kept on file in sequential order.
        On December 30, 1994, the Department published in the Federal 
    Register a notice of availability of the Final EIS (FEIS). The agency 
    mailed over 14,000 individual copies to Federal agencies, United States 
    Senators and Representatives, the western governors, major 
    environmental and industry groups, individuals who commented either on 
    the draft EIS or the notice of proposed rulemaking or testified at the 
    field hearings, and anyone else who requested copies. Copies are 
    available from any BLM Resource Area office or Forest Service Forest 
    Office throughout the western States.
    
    II. Major Elements of the Department's Program to Promote Healthy 
    Rangelands
    
        This section presents the general provisions of the Department's 
    program to improve the public land grazing program.
    
    Public Participation in Rangeland Management
    
        Allowing more Americans to have a say in the management of their 
    public lands is an important element of improving the management of the 
    public rangelands. The American rangelands can be--and are--used for 
    far more than grazing. Hiking, birding, camping, fishing, hunting, 
    mountain biking and mineral development activities are among the 
    activities that are compatible with sound grazing practices. Section 
    102(a)(8) of FLPMA makes it clear that the Secretary is to manage the 
    public lands in a manner that will protect the quality of scientific, 
    scenic, historical, ecological, environmental, air, atmospheric, water 
    resource, and archeological values.
        The Department believes that the public interest will be best 
    served if a wide range of interests are represented when decisions are 
    being made. Thus, increased public participation is essential to 
    achieving lasting improvements in the management of our public lands.
        Under FLPMA, the Secretary is required to involve the public in 
    many phases of public land management, including the development of 
    regulations (section 102) and plans and programs (section 202). Section 
    309 authorizes the Secretary to provide for public participation in the 
    preparation and execution of plans and programs for the management of 
    public lands by establishing advisory councils that conform to the 
    requirements of the Federal Advisory Committee Act (FACA).
        Consistent with these provisions, the proposed rule gave extensive 
    consideration to public participation in rangeland management. It 
    proposed the creation of RACs in most BLM administrative districts 
    which would be involved in the development of standards and guidelines 
    for grazing. The RACs would have had the option of establishing 
    rangeland resource teams and technical review teams for the purpose of 
    providing input to be used by the RACs in developing recommendations. 
    The RACs could request that the Secretary respond directly to their 
    concerns if the council believed its advice was being arbitrarily 
    disregarded. RAC members would be required to avoid conflicts of 
    interest and to disclose direct or indirect interests in Federal 
    grazing permits or leases, and to have experience or knowledge of the 
    geographic area under the purview of the council.
        Many comments were received on the concept of public participation. 
    Almost all commenters supported the central principle--that public 
    participation in decisionmaking on rangeland management should be 
    enhanced. Comments on specific details of the proposal varied widely. 
    Many commenters stressed their belief that the proposal was too complex 
    and the resulting structure would create major administrative and 
    resource needs without significant benefits. Other major comment themes 
    addressed representation of various interests on all levels, 
    requirements that members have local expertise, residency requirements, 
    ability of the committees to participate in the development of 
    standards and guidelines, the opportunity for the councils to request 
    the Secretary to review issues, and the applicability of the FACA to 
    the rangeland resource teams and technical review teams, among others. 
    These comments are discussed in more detail in the section-by-section 
    analysis of this preamble.
        The proposed rule also included a detailed discussion of a model 
    for enhanced community-based involvement in rangeland management 
    prepared by the Colorado Working Group on rangeland improvement. This 
    Working Group was convened by Governor Roy Romer, and met between 
    November 1993 and January 1994. Although the Working Group considered 
    this an experimental approach that might not be applicable to other 
    western States, the Working Group's model contained a number of 
    excellent ideas, which, in the Department's judgement, other States 
    might find useful in developing their own structures for public 
    participation. During the comment period, the Department also received 
    a number of suggestions concerning public participation from Governor 
    Mike Sullivan of Wyoming who had convened a Steering Committee on the 
    Management of Federal Lands. While the Committee noted that it did not 
    reach unanimity on all issues, the model for public participation 
    proposed by the group also contained many excellent ideas. The Wyoming 
    and Colorado documents were extremely helpful to BLM in formulating 
    this final rule, and the Department appreciates the work of the 
    individuals who participated in these efforts. Two models of public 
    participation included in the final rule were based heavily on the 
    Wyoming and Colorado proposals. The Wyoming and Colorado proposals 
    suggested that increased flexibility was needed in the development of 
    final requirements for public participation in rangeland management. In 
    response to these and other comments the Department has attempted to 
    develop a final rule that provides maximum flexibility for structuring 
    the public participation process.
        FLPMA directs the Secretary to establish advisory councils of not 
    less than 10 and not more than 15 members. Members must be appointed 
    from among representatives of the various major citizens' interests 
    concerned with problems relating to land use planning, or with the 
    management of the public lands located within the area for which an 
    advisory council is established. At least one member must be a publicly 
    elected official. The Department envisions that the RACs formed in each 
    State under the final rule will fulfill these statutory requirements. 
    The RACs would also be subject to FACA (5 U.S.C. Appendix).
        The rules as finalized today are designed to implement certain 
    basic requirements that are essential to fulfilling the requirements of 
    FACA, FLPMA, and the needs of the [[Page 9896]] Department's program to 
    improve management of the public rangelands:
    
    --A RAC of 10-15 members, as required by Sec. 309 of FLPMA;
    --Openness and balance as required by FACA, assuring participation of 
    commodity, environmental, and other interests;
    --Consensus decisionmaking, with a majority of each group required to 
    send recommendations forward;
    --A RAC that is strictly advisory, as required by FACA and other 
    statutes.
    
        Consistent with many comments received, the rule provides a high 
    degree of flexibility so that decisions can be made locally about how 
    to structure the councils. Section 1784.6-1 of this final rule sets 
    forth basic requirements that must be met by all councils. Three 
    general interest groups will be represented, from which 10 to 15 
    members must be chosen in a balanced fashion. The first group includes 
    various commodity industries, such as grazing and mineral interests, 
    and other interests that benefit from use of public lands, such as 
    outfitters. The second group includes nationally or regionally 
    recognized environmental or resource conservation groups, wild horse 
    and burro interest groups, archeological and historical interests, and 
    representatives of dispersed recreational activities, such as birders 
    or hikers. The third group includes persons who hold State, county, or 
    local elected office, the public-at-large, Indian tribes within or 
    adjacent to the area covered by the advisory council, natural resource 
    or natural science academia, and State agencies responsible for the 
    management of fish and wildlife, water quality, water rights, and State 
    lands.
        RAC members will be appointed by the Secretary. This is a 
    requirement of both FLPMA and FACA. Governors of States in which the 
    councils will be organized will be requested to provide a list of 
    nominees for the Secretary's consideration. The Secretary encourages 
    Governors to formulate nominations through a process open to the 
    public. In addition, a public call for nominations will be made through 
    a notice in the Federal Register and other appropriate publications. 
    Persons can nominate themselves for membership. Membership of each RAC 
    will reflect a balance of views to ensure that the council represents 
    the full array of issues and interests within the area covered by the 
    council associated with public land use, management, protection and an 
    understanding of the Federal laws and regulations governing public 
    lands. Individuals can qualify to serve on a RAC if they possess 
    relevant experience or expertise and have a commitment to collaborative 
    effort, successful resolution of resource management issues and 
    application of the relevant law. Members must have experience or 
    knowledge of the geographic area under the purview of the council, must 
    be residents of a State in which the area covered by a RAC is located, 
    and must be supported by letters of recommendation from the groups or 
    interests they will represent. An individual may serve on only one RAC. 
    All members must receive training on issues related to rangeland 
    management.
        All RACs will be required to have specified quorum and voting 
    rules, including the requirement that a majority of members from each 
    category support a proposal before a recommendation can be forwarded to 
    the authorized officer. Travel and per diem will be paid, and BLM will 
    provide administrative support for the councils. A BLM employee will be 
    named ``designated Federal officer'' as required by FACA.
        All members of the council will be subject to conflict of interest 
    provisions. To facilitate implementation of Federal conflict of 
    interest requirements, council members will have to disclose their 
    direct or indirect interest in BLM leases, licenses, permits or 
    contracts. This does not mean that individuals with such interests 
    cannot serve on councils; however, no member can participate in 
    specific issues in which he or she has an interest.
        The role of the RAC is to provide advice to BLM. Each RAC will 
    focus on the full array of multiple use issues associated with public 
    lands within its area of jurisdiction. They will consult on the 
    preparation of standards and guidelines for grazing administration. The 
    RACs will advise the Secretary and BLM--and other agencies as 
    appropriate--on matters relating to multiple use issues associated with 
    public lands and resources. They will also provide advice on 
    preparation, amendment, and implementation of land use management plans 
    and activity plans and consult in planning for range development and 
    improvement programs. RACs will not provide advice on internal BLM 
    management concerns such as personnel or budget expenditures.
        Final Sec. 1784.6-2 provides three models that supply additional 
    detail on the structuring of public participation. Decisions about 
    which model will be used in particular areas will be made by the State 
    Directors of BLM, in consultation with affected Governors and other 
    interested parties. Model A is based heavily on the suggestions made by 
    the Colorado Working Group. It includes three levels of groups--the RAC 
    itself, local five member rangeland resource teams appointed by the RAC 
    based either on its own initiative or as a result of local requests, 
    and technical review teams established directly by BLM to solve 
    specific, short-term technical issues. The RACs would have 15 members 
    and would be established on BLM District boundaries, ecoregions, or 
    resource areas. A 60% vote of the RAC membership (including a majority 
    of each category of users) would be required to send suggestions to 
    BLM.
        Model B is based heavily on the suggestions made by the Wyoming 
    Steering Committee. It includes 3 levels of groups--the 15 member RAC, 
    formed on either a Statewide or ecoregion basis, a more local 10 member 
    rangeland resource team formed by the RAC, and technical review teams 
    established directly by BLM to solve specific, short-term technical 
    issues. In addition to requiring membership to be balanced among the 
    commodity, environmental and local interest groups specified in 
    Sec. 1784.6-1(c), the RAC would include individuals representing 
    wildlife, grazing, minerals and energy, and established environmental 
    interests. An 80% vote of the RAC membership (including a majority of 
    each interest group) would be required to send suggestions to BLM.
        Model C was developed by BLM in response to additional issues 
    raised by the commenters. In addition to the requirements specified in 
    Sec. 1784.6-1, this model accommodates formation of the RACs, and any 
    type and number of subgroups as needed. The RAC can be formed along 
    State, BLM district, or ecoregion boundaries. A majority of each of the 
    three categories of users must vote affirmatively to send suggestions 
    to BLM. General function subgroups at the local level can be formed on 
    the initiative of the RAC or by local initiative. Special function 
    groups formed to solve special technical problems would be constituted 
    by BLM on its own initiative or in response to requests from RACs or 
    any of the subgroups under the RACs.
        The Department expects that most, if not all, public land managed 
    by BLM will fall under the purview of one of these councils. Exceptions 
    will be made where BLM State Director determines that there is 
    insufficient interest to form a council or that it would be impossible 
    for such a council to have effective participation due to the location 
    of the public lands with respect to the population. Implementation of 
    the principles discussed above will result in [[Page 9897]] enhanced 
    public involvement in rangeland management, as envisioned throughout 
    FLPMA.
        The Department intends to start using the RACs for advice shortly 
    after the rule becomes effective on August 21, 1995. This will require 
    the selection of the advisory council model for each State and the 
    nomination of advisory council members within the six-month period 
    before this rule becomes effective. The decision regarding which 
    advisory council model will be implemented in each State will be based 
    on recommendations from BLM State Directors following consultation with 
    the respective Governors and input from the public. Once the preferred 
    model is identified, the internal process of developing the council 
    charters can begin. The Department will also seek nominations for 
    membership on the advisory councils from Governors and through a public 
    call for nominations, pursuant to 43 CFR 1784.4-1. Finally, charters 
    for the advisory councils will be drafted and reviewed by the 
    Department, the Office of Management and Budget, and the General 
    Services Administration. The timely establishment of the advisory 
    councils will help ensure that there is adequate time for the councils 
    to participate in developing State or regional standards and 
    guidelines.
    
    Range Improvements and Water Rights
    
        The final rule conforms with common law concepts regarding 
    retention of the title of permanent improvements in the name of the 
    party that holds title to the land. Accordingly, after August 21, 1995, 
    the title to all new grazing-related improvements constructed on public 
    lands, or improvements related to the vegetation resource of public 
    lands, except temporary or removable improvements, will be in the name 
    of the party that holds title to the land, i.e. the United States. This 
    provides consistent direction within BLM and makes BLM practice 
    consistent with that of the Forest Service. Permanent range 
    improvements will be approved through a cooperative range improvement 
    agreement. A permittee's, lessee's, or cooperator's interest for 
    contributed funds, labor, and materials will be documented. This 
    documentation is necessary to ensure proper credit for purposes of 
    reimbursement pursuant to section 402(g) of FLPMA, which requires 
    compensation for the permittee's or lessee's authorized permanent 
    improvements whenever a permit or lease is cancelled, in whole or in 
    part, in order to devote the lands to another public purpose. Title to 
    improvements existing before the effective date of this rule is not 
    affected.
        The final rule adopts without change the language of the proposed 
    rule relating to water rights. The final rule provides consistent 
    direction for BLM regarding water rights on public lands for livestock 
    watering purposes. It is intended to make BLM's policy consistent with 
    Forest Service practice, and with BLM policy on asserting water rights 
    for livestock grazing prior to changes in the early 1980's. This 
    section provides that the United States will acquire, perfect, 
    maintain, and administer water rights obtained on public land for 
    livestock grazing on public land in the name of the United States to 
    the extent allowed by State law. Some States, such as Wyoming, grant 
    public land livestock grazing water rights in the name of the landowner 
    but also, in situations where the grazing lessee or permittee of State 
    or Federal public land applies for a water right on that land, 
    automatically include the State or Federal landowner as co-applicant. 
    After consideration of public comment and further analysis, we have 
    determined that co-application or joint ownership will be allowed where 
    state policy permits it; for example, the Wyoming policy is consistent 
    with the rule. Development of new water sources on public lands 
    associated with a grazing permit or lease will be subject to 
    cooperative range improvement agreements as provided in section 
    Sec. 4120.3-2.
        The rule adopted today will be prospective. The final rule does not 
    create any new Federal reserved water rights, nor will it affect valid 
    existing water rights. Any right or claim to water on public land for 
    livestock watering on public land by or on behalf of the United States 
    will remain subject to the provisions of 43 U.S.C. 666 (the McCarran 
    Amendment) and section 701 of FLPMA (43 U.S.C. 1701 note; disclaimer on 
    water rights). Finally, the final rule does not change existing BLM 
    policy on water rights for uses other than public land grazing, such as 
    irrigation, municipal, or industrial uses.
    
    Administrative Practices
    
        With this final rule, BLM has made a number of changes to improve 
    the administration of grazing on lands managed by BLM. These changes 
    principally affect public participation in range decisions, 
    administrative appeals and implementation of decisions, 
    disqualification of applicants for grazing permits and leases based on 
    a prior record of noncompliance, acts prohibited by the regulations, 
    and the definition and implementation of conservation use.
        Interested public. An important element of rangeland improvement 
    involves facilitating effective public participation in the management 
    of public lands. To implement this goal, the term ``affected 
    interests'' is removed throughout the rule and replaced with the term 
    ``interested public.'' The rule also removes the authorized officer's 
    discretion to determine whether an individual meets the standards for 
    ``affected interest'' status. The final rule adopts the definition of 
    ``interested public'' as set forth in the proposed rule.
        This change provides a consistent standard for participation by the 
    public in decisions relating to grazing. Any party who writes to the 
    authorized officer to express concern regarding the management of 
    livestock grazing on specific grazing allotments will be recognized as 
    a member of the ``interested public.''
        Requirements for consultation with the interested public have been 
    added in various sections of the rule, including those that deal with 
    permit issuance, renewal and modification, increasing and decreasing 
    permitted use, and development of activity plans and range improvement 
    programs.
        Appeals. Comments on the appeals procedures contained in the 
    proposed rule suggested that the provisions were not clear. A number of 
    changes have been made in the final rule to clarify the provisions. 
    Most importantly, the final rule now references existing procedures in 
    43 CFR part 4, rather than repeating language from that part.
        Under the final rule, persons choosing to appeal a decision of the 
    authorized officer will normally be provided a 30-day period in which 
    to file an appeal. Appellants may also petition the Director of the 
    Office of Hearings and Appeals (OHA), or the Interior Board of Land 
    Appeals (IBLA) to stay the decision until the appeal is decided. Where 
    a petition for stay has been filed with an appeal, the Department's OHA 
    has 45 days from the expiration of the 30-day appeal period either to 
    grant or deny the petition for stay, in whole or in part. Thus, in 
    cases where a person has filed a petition for stay of the decision of 
    the authorized officer along with an appeal, and where the request for 
    stay is denied, implementation of the decision would be delayed up to 
    75 days. In the event a stay of the decision is granted in whole or in 
    part, the decision will be stayed until such time as a determination on 
    the appeal is made.
        This rule clarifies that the authorized officer can issue final 
    decisions and [[Page 9898]] place them in effect immediately when it is 
    necessary to protect rangeland resources from damage in situations 
    described under Sec. 4110.3-3(b). The rule also adds a provision that 
    decisions to close areas to specified kinds of livestock use when it is 
    necessary to abate unauthorized use, as provided in Sec. 4150.2(d), may 
    be issued as final decisions. In these cases, the permittee or lessee 
    will still have 30 days to appeal the decision and petition for a stay, 
    and the OHA will have 45 days to evaluate the petition; however, the 
    decision will be in effect on the date specified in the decision and 
    will remain in effect unless a stay is granted.
        The objective of placing decisions in immediate effect under the 
    circumstances specified in the rule is to provide for timely action to 
    benefit rangelands and to reduce administrative delays. The rule does 
    not take away the ability of affected parties to file an appeal, as 
    provided by Section 9 of TGA, or to request a stay of the decision 
    until such time as the appeal is decided. The Department believes 
    making decisions under Secs. 4110.3-3(b) and 4150.2(d) effective 
    immediately under the standards provided for in this final rule is 
    critical to meeting the goals of sound rangeland management.
        Qualifications. The final rule makes no substantive change from the 
    proposed rule. It includes a provision to disqualify applicants for new 
    or additional grazing permits and leases if: (1) The applicant or 
    affiliate has had any Federal grazing permit or lease, or any State 
    grazing permit or lease within the grazing allotment for which a 
    Federal permit or lease is sought, cancelled for violation of the 
    permit or lease within the 36 calendar months immediately preceding the 
    date of application; or (2) the applicant or affiliate is barred from 
    holding a Federal grazing permit or lease by order of a court of 
    competent jurisdiction.
        These requirements do not apply to applicants for renewal of 
    grazing permits or leases. The final rule gives the authorized officer 
    the authority to consider whether an applicant for renewal is in 
    substantial compliance with the terms and conditions of the permit or 
    lease for which renewal is sought.
        Prohibited acts. The final rule adopts provisions of the proposed 
    rule, except that provisions from Sec. 4170.1-3, as proposed, have been 
    moved to a new paragraph in Sec. 4140.1. Minor clarifying changes are 
    also made. As in the proposed rule, Subpart 4140, ``Prohibited Acts,'' 
    is revised to modify the list of actions that are defined as prohibited 
    acts. Penalties applicable to prohibited acts are set forth in 
    Sec. 4170.
        The proposed rule amended the list of prohibited acts to include 
    violations of Federal and State laws and regulations concerning water 
    pollution, certain predator control activities; application or storage 
    of pesticides, herbicides or other hazardous materials; alteration or 
    destruction of natural stream courses; wildlife destruction; and 
    removal or destruction of archeological resources. It also added 
    violations of State laws regarding the stray of livestock to the list.
        The final rule adopts these provisions. It does not attempt to list 
    in the text of the regulations all of the specific Federal and State 
    laws which, if violated, could constitute prohibited acts. A list of 
    such laws was included in the preamble to the proposed rule at 59 FR 
    14323-4. It is not the intent of this rule for the authorized officer 
    to take direct enforcement action under the provisions of these laws; 
    or to take enforcement steps involving the grazing permit or lease for 
    any and all violations, no matter how de minimis or technical; or for 
    violations of laws that, while they do deal with violations of State 
    and Federal laws dealing with water pollution and other matters, do not 
    reflect meaningfully upon the ability of the permittee or lessee to be 
    a good steward of the public lands. The final rule clarifies that 
    violations of these State and Federal laws would constitute prohibited 
    acts only where three conditions are met: (1) The violations involve or 
    affect BLM lands; (2) the violation is related to grazing use 
    authorized by a permit or lease, and (3) the permittee or lessee has 
    been convicted or otherwise found to be in violation of the State or 
    Federal laws by final court or agency action. The final rule also moves 
    similar provisions regarding the Bald Eagle Protection Act, the 
    Endangered Species Act (ESA), and the Wild Free-roaming Horse and Burro 
    Act from Sec. 4170 to Sec. 4140 to increase clarity and readability.
        Conservation use. The final rule adopts the proposed definition 
    with one clarifying change. Conservation use benefits the range by 
    facilitating improvement in forage conditions, watersheds, riparian 
    areas, and so on. It provides flexibility that is needed to enable 
    permittees or lessees to undertake activities on a portion or all of an 
    allotment to promote resource protection or enhancement, which includes 
    making progress toward resource condition objectives.
        The Department believes that this provision will provide permittees 
    and lessees with an additional tool to manage grazing operations 
    properly, provided that the conservation use is consistent with land 
    use plans. Allotments in conservation use will not be subject to 
    grazing fees since no forage will be consumed by livestock. However, 
    permittees and lessees requesting conservation use will be required to 
    maintain existing improvements so that when the allotment is returned 
    to actual use such improvements will be in good working order. A 
    service charge can be charged for conservation use, as it is for actual 
    use. Conservation use will be initiated by request of the permittee or 
    lessee. The BLM will not impose conservation use on an unwilling 
    permittee or lessee.
        The advantage of conservation use to the operator is that it allows 
    increased flexibility. The operator will be able to enjoy the benefits 
    of a long-term rest of the allotment from grazing while preserving the 
    ability to resume grazing in the future. During the conservation use, 
    BLM will not consider allowing another operator to use any resulting 
    forage.
        Resource Management Requirements, Including Standards and 
    Guidelines. The final rule adopts the substance of the provisions 
    proposed in subpart 4180. The Department has reorganized and rewritten 
    the subpart to improve clarity and incorporate more fully a watershed 
    management approach.
        The Fundamentals of Rangeland Health. The final rule establishes 
    the fundamentals of rangeland health for grazing administration 
    (formerly referred to as the national requirements). These fundamentals 
    address the necessary physical components of functional watersheds, 
    ecological processes required for healthy biotic communities, water 
    quality standards and objectives, and habitat for threatened or 
    endangered species or other species of special interest. The Department 
    believes that these provisions are critical to ensuring that BLM's 
    administration of grazing helps preserve currently healthy rangelands 
    and restore healthy conditions to those areas that currently are not 
    functioning properly, especially riparian areas.
        Where it is determined that existing grazing management needs to be 
    modified to ensure that the conditions of healthy rangelands set forth 
    in Sec. 4180.1. Fundamentals of rangeland health, are met or 
    significant progress is being made to meet these conditions, the 
    authorized officer must take appropriate action as soon as practical, 
    but not later than the start of the next grazing season. This may 
    include actions such as reducing livestock [[Page 9899]] stocking 
    rates, adjusting the season or duration of livestock use, or modifying 
    or relocating range improvements.
        State or Regional Standards and Guidelines. Standards and 
    guidelines are to be developed for an entire State or for an area 
    encompassing portions of more than one State, except where the 
    geophysical or vegetal character of an area is unique and the health of 
    the rangelands will not be ensured by using standards and guidelines 
    developed for a larger geographical area. The geographical area covered 
    will be determined by BLM State Directors in consultation with affected 
    RACs.
        State or regional standards and guidelines will be developed, under 
    the umbrella of the fundamentals and consistent with the guiding 
    principles of this final rule, 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. The preparation of standards and guidelines 
    will involve public participation and consultation with RACs, Indian 
    tribes, and Federal agencies responsible for the management of lands 
    within the affected area.
        The guiding principles for the development of standards presented 
    in this final rule pertain to the factors needed to help achieve 
    rangeland health. More specifically, the factors relate to watershed 
    function, threatened or endangered species and candidate species, 
    habitat for native plant and animal populations, water quality and the 
    distribution of nutrients and energy flow. The guiding principles for 
    guidelines direct the identification of acceptable or best grazing 
    management practices that will result in or ensure significant progress 
    towards fulfillment of the standards.
        State or regional standards and guidelines will provide the 
    resource measures and guidance needed to develop terms and conditions 
    of permits, leases, and other authorizations, AMPs and other activity 
    plans, cooperative range improvement agreements and to issue range 
    improvement permits in a manner that will result in maintaining or 
    making significant progress toward healthy, functional rangelands.
        Once standards and guidelines are in effect, the authorized officer 
    is required to take appropriate action under 43 CFR part 4100 as soon 
    as practical, but not later than the start of the next grazing year, 
    upon determining that existing grazing management practices are 
    significant factors in failing to meet the standards and conform with 
    the guidelines. Appropriate actions may include reducing livestock 
    stocking rates, adjusting the season or duration of livestock use, or 
    modifying or relocating range improvements.
        Fallback Standards and Guidelines. The Department recognizes the 
    importance of putting standards and guidelines in place in a timely 
    manner, and has provided a mechanism for doing so in this rule. This 
    final rule includes a provision for fallback standards and guidelines 
    that would become effective 18 months after this rule becomes effective 
    in the event that State or regional standards and guidelines have not 
    been developed and put into effect. They will remain in effect until 
    State or regional standards and guidelines are in effect.
        The fallback standards and guidelines address largely the same 
    factors that are provided in the guiding principles for the development 
    of the State or regional standards and guidelines. The fallback 
    standards include more detail regarding the conditions that would exist 
    under each of the factors when rangelands are in a healthy, functional 
    condition than do the guiding principles for State or regional 
    standards discussed above. Similarly, the fallback guidelines include 
    grazing management practices while the guiding principles for State or 
    regional guidelines refer more generally to the types of concerns to be 
    addressed. The BLM State Directors can adjust the fallback standards 
    and guidelines, subject to approval of the Secretary, to fit State or 
    local conditions.
        Fallback standards and guidelines will be applied in the same 
    manner as standards and guidelines developed for a particular State or 
    region, which are discussed above.
        NEPA and Implementation of Standards and Guidelines. The 
    fundamentals of rangeland health proposed in this rule, and all 
    standards and guidelines whether fallback, State, or regional, will be 
    implemented subject to the National Environmental Policy Act of 1969 
    (NEPA) and applicable land use planning regulations. The fundamentals 
    of rangeland health, the guiding principles for the development of 
    State and regional standards and guidelines and the fallback standards 
    and guidelines were analyzed in the FEIS for this final rulemaking. Any 
    additional NEPA analysis required during development of State or 
    regional standards and guidelines could tier to the analysis of the 
    fundamentals of rangeland health and standards and guidelines presented 
    in the FEIS.
        BLM planning regulations direct that actions be in conformance with 
    BLM land use plans. In some instances, the standards and guidelines may 
    be consistent with existing land use plans and implementation may 
    proceed without further action. In many cases, however, land use plans 
    will require modification to ensure conformance with the land use plan 
    and the standards and guidelines. The Department intends to develop 
    State or regional standards and guidelines, complete plan conformance 
    tests, and undertake necessary plan amendments within 18 months of the 
    effective date of this rule. State or regional standards and guidelines 
    will be implemented as they are finalized and approved by the 
    Secretary.
    
    The Federal Grazing Fee and Subleasing
    
        Grazing fees. The fee portion of the proposed rule generated 
    numerous public comments with diverse and conflicting views about the 
    impact of an increased fee and the calculation of the fee formula. The 
    Department has decided not to promulgate the fee increase provision of 
    the proposed rule in order to give the Congress the opportunity to hold 
    additional hearings on this subject and to enact legislation addressing 
    appropriate fees for grazing on public lands. Other changes not 
    pertaining to fees proposed in section 4130.7-1, redesignated as 
    Sec. 4130.8-1 in the final rule, remain a part of this rulemaking 
    package.
        As proposed, this section would have been amended by revising the 
    grazing fee formula, with a provision for phasing in the grazing fee 
    increase over the years 1995 through 1997. The proposed rule provided 
    for a 30% incentive fee reduction. The incentive was to have been 
    implemented after BLM developed separate rules describing the 
    eligibility criteria for this incentive based fee. The proposed rule 
    also provided that the full fee increase would not go into effect in 
    the event that a separate final rule prescribing qualification criteria 
    for the incentive-based fee was not completed. Multiple-year billing 
    would have been allowed in certain circumstances. In addition, the 
    proposed rule provided for a 25 percent cap on changes in the 
    calculated fee from year to year. These proposals are not adopted in 
    the final rule.
        As adopted by today's action, Section 4130.8-1 clarifies the 
    definition of billing unit, provides for assessing a surcharge in 
    certain instances for the public landlord's share of authorized 
    pasturing agreements associated with public land grazing, and clarifies 
    that grazing use occurring before a bill is paid is an unauthorized use 
    that may be dealt with under the settlement and penalties sections of 
    this rule and may [[Page 9900]] result in the limitation of flexibility 
    otherwise provided under an allotment management plan.
        Subleasing. The Department's proposed rule would have imposed a 
    surcharge on authorized leasing or subleasing in two situations: (1) 
    the subleasing of public land grazing privileges associated with the 
    leasing of privately-owned base property; (2) the pasturing of 
    livestock owned by someone other than the grazing permittee or lessee 
    where the permittee or lessee controls such livestock. This proposal 
    was made in response to findings of the General Accounting Office (GAO) 
    (see, e.g., RCED-86-168BR), and the Office of the Inspector General 
    (OIG) (see report #92-1-1364) that permittees and lessees who sublease 
    are unduly benefitting from their permits or leases. Sons and daughters 
    of grazing permittees and lessees were exempted from the surcharge.
        In response to comments that putting a surcharge on authorized 
    subleasing would adversely affect the ability of new ranchers with 
    limited capital to enter the livestock business, the Department has not 
    included the surcharge associated with the authorized leasing or 
    subleasing of public land grazing privileges associated with base 
    property in the final rule. However, in order to address the 
    Secretary's intent to establish a fair and reasonable return to the 
    public, the surcharge on pasturing agreements is adopted in the final 
    rule. The Department recognizes the need to avoid penalizing children 
    of grazing permittees and lessees who graze cattle under their parents' 
    permits or leases and has included an exemption from the surcharge for 
    pasturing for sons and daughters of public land permittees and lessees. 
    The Department believes that, as landlord of the public lands, it must 
    obtain a fair share, on behalf of the American public, of any income 
    received by the permittee for pasturing cattle belonging to others. 
    Additionally, the policy of charging a surcharge for pasturing is 
    consistent with standard practices on most State grazing lands.
        Commenters also stated that the proposed method for calculating the 
    surcharge did not reflect local conditions. The Department has 
    addressed this concern by modifying the method for calculating the 
    surcharge on pasturing agreements. The final rule provides that the 
    surcharge on pasturing agreements will be equal to 35 percent of the 
    difference between the Federal grazing fee per AUM and the prior year's 
    private lease rate for the appropriate State for forage used by 
    livestock owned by another party other than the permittee or lessee. A 
    surcharge of 35 percent of the difference between the Federal grazing 
    fee and the private lease rate for the appropriate State will recover 
    an appropriate ``landlord's share'' and will result, on the average 
    across all States, in a surcharge approximating the surcharge presented 
    in the proposed rule and analyzed in the EIS for this rule. Pasturing 
    agreements must have authorization from the authorized officer. Under 
    this final rule, to calculate the surcharge BLM will use the per animal 
    unit month (AUM) private grazing land lease rate for the appropriate 
    State as reported annually by the National Agricultural Statistics 
    Service (NASS).
    
    III. Summary of Rules Adopted
    
        These final rules revise Parts 4, 1780, and 4100 of Title 43. The 
    following summary highlights changes from the current regulations, most 
    of which were also included in the proposed rule. The following 
    provisions are included:
    
    Part 4 of Title 43--Department Hearings and Appeals Procedures
    
        Section 4.477, Effect of decision suspended during appeal, is 
    revised to reflect that grazing decisions will no longer be suspended 
    automatically when an appeal is filed. Instead, final grazing decisions 
    will be subject to the provisions of 43 CFR 4.21, which governs the 
    effect of administrative decisions pending appeal before the 
    Department's OHA.
    
    Part 1780--Cooperative Relations
    
        Section 1784.0-5 is amended by replacing the term ``Authorized 
    representative'' with the term ``Designated Federal officer.'' These 
    changes provide consistency with the terminology of FACA.
        Section 1784.2-1, Composition, is amended to remove the eligibility 
    requirement for grazing advisory board members. The final rule also 
    adds a requirement that advisory committee members have demonstrated a 
    commitment to collaborate in seeking solutions to resource management 
    issues.
        Section 1784.2-2, Avoidance of conflict of interest, is amended to 
    provide that no advisory committee member, including members of RACs, 
    can participate in any matter in which such member is directly 
    interested, and must disclose his or her direct or indirect interest in 
    Federal permits, leases, licenses, or contracts administered by BLM.
        Section 1784.3, Member service, establishes that appointments to 
    advisory committees will be for two-year terms unless otherwise 
    specified in the committee charter or appointing document. Specific 
    references to grazing advisory board, district advisory council and 
    National Public Lands Advisory Council appointments and terms and 
    election procedures have been removed. The rule also provides that 
    travel and per diem will be paid to committee members but not to 
    members of any subgroups formed under the committees.
        Sections 1784.5-1, Functions and 1784.5-2, Meetings, are amended by 
    replacing the term ``authorized representative'' with the term 
    ``designated Federal officer.'' These changes provide consistency with 
    the terminology of FACA.
        Section 1784.6-1, Resource Advisory Councils--Requirements, 
    establishes requirements for RACs. It provides that, with certain 
    exceptions, councils will be established to cover all BLM lands. RACs 
    will provide advice to the BLM official to whom they report regarding 
    the preparation, amendment and implementation of land use plans and the 
    development of standards and guidelines. The councils will also assist 
    in establishing other long-range plans and resource management 
    priorities, including plans for expending range improvement funds. RACs 
    will not provide advice on personnel management, nor on the allocation 
    and expenditure of funds subsequent to budget planning.
        Appointments to RACs will be made by the Secretary. In making 
    appointments, the Secretary will consider nominations from the Governor 
    of the affected State and nominations received in response to a public 
    call for nominations. All nominations will be required to be 
    accompanied by letters of recommendation from interests or 
    organizations to be represented, and members must be residents of a 
    State in which the area covered by the council is located.
        Council members will be selected in a balanced manner from persons 
    representing interest groups. There are 3 general groups: Commodity 
    Industries--including ranching and developed recreational activities; 
    Recreational/Environmental--nationally or regionally recognized 
    environmental or resource conservation groups, wild horse and burro 
    interest groups, archeological and historical interests, dispersed 
    recreational activity interests--such as bicyclists and hikers; and 
    Local Area Interest--persons who hold State, [[Page 9901]] county, or 
    local elected office, representatives of the public-at-large, Indian 
    tribes within or adjacent to the area, natural resource or natural 
    science academia, and State agencies responsible for the management of 
    natural resources, water quality, water rights, and State lands. At 
    least one of the members appointed to each council must hold elected 
    State, county, or local office. An individual may not serve on more 
    than one RAC at any given time. Council members must have demonstrated 
    experience or knowledge of the geographic area for which the council 
    provides advice and a commitment to collaborative decisionmaking.
        All members of RACs must attend a course of instruction in the 
    management of rangelands that has been approved by BLM State Director.
        Each RAC will have requirements for quorums and for making 
    recommendations to the Department. Councils can request that the 
    Secretary respond directly where the council believes its advice has 
    been arbitrarily disregarded by the BLM manager. If requested, the 
    Secretary will respond directly to a council's concerns within 60 days. 
    Such a request would require agreement by all members of the council. 
    The Secretary's response will not constitute a decision on the merits 
    of any issue that is or might become the subject of an administrative 
    appeal and will not preclude an affected party's ability to appeal a 
    decision of the authorized officer.
        Administrative support for a council will be provided by the office 
    of the designated Federal officer.
        Section 1784.6-2, RACs--Optional features, establishes optional 
    features for RACs. Three different models are provided, and BLM State 
    Director, in consultation with the Governor and other interested 
    parties, will determine which model will best suit the needs of the 
    State. General characteristics of the three models are presented above, 
    in the section on ``Public Participation in Rangeland Management'' 
    under the discussion of ``Major Elements of the Department's Program to 
    Promote Healthy Rangelands.'' The first model is based largely on the 
    model developed by the Colorado Working Group. The second model is 
    based largely on the model developed by the Wyoming Steering Committee. 
    The third model was developed by BLM after consideration of public 
    comment.
        Previous sections 1784.6-1, National Public Lands Advisory Council, 
    1784.6-4, District advisory councils, and 1784.6-5, Grazing advisory 
    boards, are removed.
    
    Part 4100--Grazing Administration--Exclusive of Alaska
    
    Subpart 4100--Grazing Administration--Exclusive of Alaska; General
        Section 4100.0-2, Objectives, is amended by revising the statement 
    of objectives to include promoting healthy, sustainable public 
    rangelands; accelerating restoration and improvement of public 
    rangelands to properly functioning conditions; promoting the orderly 
    use, improvement and development of the public lands; establishing 
    efficient and effective administration of grazing of public rangelands; 
    and providing for a sustainable western livestock industry and 
    communities that are dependent upon productive, healthy public 
    rangelands.
        Section 4100.0-5, Definitions, is amended by removing the 
    definition of ``Affected interests,'' ``Grazing preference,'' and 
    ``Subleasing''; revising the definitions of ``Active use,'' ``Actual 
    use,'' ``Allotment management plan (AMP),'' ``Consultation, cooperation 
    and coordination,'' ``Grazing lease,'' ``Grazing permit,'' ``Land use 
    plan,'' ``Range improvement,'' ``Suspension,'' and ``Utilization''; and 
    by adding in alphabetical order the definitions of ``Activity plan,'' 
    ``Affiliate,'' ``Annual rangelands,'' ``Conservation use,'' ``Ephemeral 
    rangelands,'' ``Grazing preference or preference,'' ``Interested 
    public,'' ``Permitted use,'' ``Temporary nonuse,'' and ``Unauthorized 
    leasing and subleasing.''
        Section 4100.0-7, Cross-references, is amended to guide the public 
    to the applicable sections of 43 CFR part 4 when considering an appeal 
    of a decision relating to grazing administration, to 43 CFR part 1600 
    regarding the development of land use plans, and to 43 CFR part 1780 
    regarding advisory committees.
        Section 4100.0-9, Information collection, is added to conform to 
    the requirements of the Paperwork Reduction Act (44 U.S.C. 3501 et 
    seq.). The section discloses to the public the estimated burden hours 
    needed to comply with the information collection requirements in this 
    rule, why the information is being collected, and what the information 
    will be used for by BLM.
    Subpart 4110--Qualifications and Preference
        Section 4110.1, Mandatory qualifications, is amended to require 
    that applicants for renewal or issuance of new grazing permits or 
    leases, and any affiliates of such applicants, must be determined by 
    the authorized officer to have a satisfactory record of performance. 
    Applicants and any affiliates for renewal must be determined to be in 
    substantial compliance with the terms and conditions of the permit or 
    lease for which renewal is sought, and with applicable regulations. 
    Applicants and any affiliates who have had a Federal grazing permit or 
    lease, or a State grazing permit or lease for lands within the Federal 
    grazing allotment for which application is made, cancelled within 36 
    months preceding application shall be deemed not to have a satisfactory 
    record of performance. Applicants and their affiliates that are barred 
    from holding a Federal grazing permit or lease by court order are also 
    disqualified from receiving a new permit or lease. The amendments to 
    this section also clarify that mortgage insurers, natural resource 
    conservation organizations, and private parties whose primary source of 
    income is not the livestock business, but who meet the criteria of this 
    section, are qualified for a grazing permit or lease.
        Section 4110.1-1, Acquired lands, is amended to clarify that 
    existing grazing permits and leases on lands acquired by BLM are 
    subject to the permit or lease terms and conditions that were in effect 
    at the time of acquisition. Following expiration of the pre-existing 
    permit or lease, applicants for grazing permits or leases will be 
    subject to the provisions of Sec. 4110.1 of this final rule.
        Section 4110.2-1, Base property, is amended to clarify that base 
    property must be capable of serving as a base for livestock operations 
    but it need not actually be in use for livestock production at the time 
    the authorized officer finds it to be base property. Further, the final 
    rule makes clear that where authorized water developments on public 
    lands that have been previously recognized as base property require 
    reconstruction or replacement in order to continue to service the same 
    area, and the reconstructed or new development has been authorized 
    through a cooperative range improvement agreement, the permittee's or 
    lessee's interest in the new or reconstructed water development will 
    continue to be recognized as base property.
        Section 4110.2-2, Specifying permitted use, is retitled to reflect 
    the redefinition of the term ``grazing preference,'' and amended to 
    replace the term ``grazing preference'' with ``permitted use.'' Also, 
    the section is amended to clarify that levels of grazing use on 
    ephemeral or annual ranges are established on the basis of the amount 
    [[Page 9902]] of forage that is temporarily available pursuant to 
    vegetation standards prescribed by land use plans or activity plans.
        Section 4110.2-3, Transfer of grazing preference, is amended to 
    reflect the new requirements of Sec. 4110.1-1 pertaining to the 
    applicant's history of performance and by adding a new paragraph (f) to 
    require that new permits or leases stemming from transfer of the base 
    property be for a minimum of three years, unless a shorter term is 
    approved by the authorized officer.
        Section 4110.2-4, Allotments, is amended to clarify that 
    designation and adjustment of allotment boundaries includes the 
    authority for, and the practice of, combining or dividing allotments 
    when determined by the authorized officer to be necessary to achieve 
    resource condition objectives or to enhance administrative efficiency. 
    The section clarifies that modification of allotments must be done 
    through agreement or decision of the authorized officer, following 
    consultation, cooperation and coordination with involved persons, 
    including the interested public.
        Section 4110.3, Changes in permitted use, is amended by replacing 
    the term ``grazing preference'' with ``permitted use,'' and by 
    clarifying that changes in permitted use will be supported by 
    monitoring data, field observations, land use planning decisions, or 
    data collected through other studies.
        Section 4110.3-1, Increasing permitted use, is amended by including 
    the requirement that a permittee, lessee, or other applicant must be 
    determined to be qualified under subpart 4110, by substituting the term 
    ``permitted use'' in place of ``grazing preference,'' and by clarifying 
    the requirements for consultation. Also, reference to a permittee's or 
    lessee's demonstrated stewardship is added to factors to be considered 
    in allocating available forage.
        Section 4110.3-2, Decreasing permitted use, is amended by revising 
    the heading, revising paragraph (b) to expand the list of methods for 
    determining when a reduction in grazing use is necessary, and by 
    deleting paragraph (c), which contained provisions for suspended use. 
    The amendment adds ecological site inventory and other recognized 
    methods for determining forage production as methods of identifying 
    when use exceeds the livestock carrying capacity of the area 
    considered. Monitoring remains as a means of determining forage 
    production. The amendment also adds a reference to the fundamentals of 
    rangeland health and standards and guidelines.
        Section 4110.3-3, Implementing reductions in permitted use, is 
    retitled and previous paragraph (a) and other requirements for phased-
    in reductions in permitted use are removed. Previous paragraph (b) is 
    amended to remove the term ``suspension of preference'' and add in its 
    place the term ``reductions in permitted use.'' The phrase ``when 
    continued grazing use poses a significant risk of resource damage from 
    these factors'' is amended to read ``when continued grazing use poses 
    an imminent likelihood of significant resource damage.'' This clarifies 
    that modifications in grazing use and notices of closure can be 
    implemented where continued grazing use poses an imminent likelihood of 
    significant resource damage. Additionally, paragraph (b) provides, by 
    reference to Sec. 4110.3-2, for the application of the fundamentals of 
    rangeland health and standards and guidelines and the use of other 
    methods, in addition to monitoring, for determining the need for an 
    initial reduction, and clarifies the action of the field manager, 
    requirements for consultation, cooperation and coordination with 
    involved persons, including the interested public. Previous paragraph 
    (c) is redesignated as paragraph (b) and amended to remove the word 
    ``temporary'' to recognize that the influences of natural events such 
    as drought can significantly affect vegetation health and productivity 
    for several months or years after a drought has passed. Redesignated 
    paragraph (b) retains the special provisions for making decisions 
    effective upon issuance or on the date specified in the decision when 
    action is needed to protect rangeland resources.
        Paragraph (a) of Sec. 4110.4-2, Decreases in land acreage, is 
    amended by removing reference to suspended use. Reductions in 
    authorized use under preference permits or leases will no longer be 
    recognized as suspended use.
    Subpart 4120--Grazing Management
        Section 4120.2, Allotment management plans and resource activity 
    plans, is amended by revising the heading and by adding a reference to 
    other activity plans that may prescribe grazing management. The final 
    rule clarifies that draft AMPs or other draft activity plans may be 
    prepared by other agencies or permittees or lessees, but that such 
    plans do not become effective until approved by the authorized officer. 
    AMPs must include standards and guidelines. Paragraph (a) is also 
    amended by replacing the reference to district grazing advisory boards 
    with RACs and including State resource management agencies in the 
    activity planning process.
        The final rule also provides that permits and leases must include 
    in their terms and conditions a requirement for conformance with AMPs 
    or other applicable activity plans. Further, it provides that 
    flexibility granted to permittees or lessees under a plan will be 
    determined on the basis of demonstrated stewardship. The rule clarifies 
    the existing provision that the inclusion of lands other than public 
    lands in an AMP or other activity plan is discretionary. Finally, this 
    section references the NEPA analysis and related public participation 
    that is required for the planning and revision of allotment or activity 
    plans, and provides that the decision document that follows the 
    environmental analysis serves as the proposed decision for purposes of 
    subpart 4160.
        Section 4120.3-1, Conditions for range improvements, is amended by 
    specifying in paragraphs (b) and (e) that ``cooperative agreements'' 
    refers to cooperative range improvement agreements, and by inserting a 
    new paragraph (f) addressing reviews of decisions associated with range 
    improvement projects. The amendment clarifies the process for 
    administering protests and appeals of decisions and provides that 
    appeals are subject to the administrative remedies process set forth in 
    43 CFR part 4160.
        The heading of Sec. 4120.3-2, Cooperative range improvement 
    agreements, is revised to clarify that this section deals with 
    cooperative range improvement agreements as opposed to ``cooperative 
    agreements'' with other Federal or State agencies. The section is 
    amended to clarify that title will be in the United States for all new 
    permanent grazing-related improvements constructed on public lands.
        Title to temporary grazing-related improvements used primarily for 
    livestock handling or water hauling can still be held by the permittee 
    or lessee. The amendment will not affect ownership or rights currently 
    held in a range improvement.
        The provisions pertaining to title do not affect the existing 
    practice of retaining a record of permittee or lessee contributions to 
    specific authorized range improvement projects. This record will be 
    used in determining compensation due the permittee or lessee in the 
    event a permit or lease is cancelled in order to devote the public 
    lands to another public purpose, including disposal of the lands. This 
    record may also be considered during [[Page 9903]] the transfer of 
    grazing preference to ensure that all interests in range improvements 
    have been assigned to the transferee.
        The amendment does not change agreements currently in effect. The 
    amendment also clarifies that permanent water improvement projects will 
    be authorized through cooperative range improvement agreements.
        Section 4120.3-3, Range improvement permits, is amended to make it 
    clear that a permittee or lessee may hold title to removable livestock 
    handling facilities and to temporary improvements such as troughs for 
    hauled water or loading chutes. The amendment will not affect ownership 
    or rights currently held in a range improvement.
        The final rule provides that BLM may mediate disputes when 
    necessary about reasonable compensation for the operation and 
    maintenance of facilities when another operator is authorized temporary 
    use of forage that the preference permit holder cannot use. Finally, 
    the rule removes as unnecessary the provision that permittees or 
    lessees can control their livestock's use of ponds or wells.
        A new section Sec. 4120.3-8, Range improvement fund, is added to 
    address the distribution and use of the ``range betterment'' funds 
    appropriated by Congress through section 401(b) of FLPMA for range 
    improvement expenditures by the Secretary. The range betterment fund 
    has been called the range improvement appropriation by Congress, and is 
    known by that title in BLM. The final rule provides for distribution of 
    the funds by the Secretary, with one-half of the range improvement fund 
    to be made available to the State and District from which the funds 
    were derived. The remaining one-half is to be allocated by the 
    Secretary on a priority basis. All range improvement funds will be used 
    for on-the-ground rehabilitation, protection and improvements of public 
    rangelands.
        The final rule further clarifies that range improvement includes 
    activities such as planning, design, layout, modification, as well as 
    maintaining, monitoring and evaluating the effectiveness of specific 
    on-the-ground range improvements in achieving resource condition and 
    management objectives.
        The final rule also requires consultation with affected permittees, 
    lessees, and the interested public during the planning of range 
    development and improvement programs. RACs will also be consulted 
    during the planning of range development and improvement programs, 
    including the development of budgets for range improvement and the 
    establishment of range improvement priorities.
        Section 4120.3-9, Water rights for the purpose of livestock grazing 
    on public lands, is added to provide consistent direction for BLM 
    regarding water rights on public lands for livestock watering purposes. 
    This section provides that the United States will acquire, perfect, 
    maintain, and administer any rights to water obtained on public land 
    for livestock watering on public land in the name of the United States 
    to the extent allowed by State law.
        The rule adopted today will be prospective. The final rule does not 
    create any new Federal reserved water rights, nor will it affect valid 
    existing water rights. The provisions of this final rule are not 
    intended to apply to the perfection of water rights on non-Federal 
    lands. Any right or claim to water on public land for livestock 
    watering on public land by or on behalf of the United States will 
    remain subject to the provisions of 43 U.S.C. 666 (the McCarran 
    Amendment) and section 701 of FLPMA (43 U.S.C. 1701 note; disclaimer on 
    water rights). Finally, the final rule does not change existing BLM 
    policy on water rights for uses other than public land grazing, such as 
    irrigation, municipal, or industrial uses.
        Section 4120.5 is added to recognize and encourage cooperation 
    with, among others, State, county, Indian tribal, and local government 
    entities and Federal agencies.
        Section 4120.5-1, Cooperation with State, county, and Federal 
    agencies, is amended to recognize existing cooperation with State 
    cattle and sheep boards, county and local noxious weed control 
    districts, and State agencies involved in environmental, conservation, 
    and enforcement roles related to these cooperative relationships.
    Subpart 4130--Authorizing Grazing Use
        This section is reordered to follow a more logical sequence. This 
    discussion will use the new numbers and cross reference the old 
    numbers. A table showing old and new numbers is included in the 
    section-by-section discussion of this subpart.
        Section 4130.1, Applications, is added. This action merely adds a 
    title for purposes of the reorganization of the subpart.
        Section 4130.1-1, Filing applications, is renamed from the proposed 
    ``Applications'' and amended slightly to accommodate the new category 
    of use, conservation use, which is adopted in this final rule.
        Section 4130.1-2, Conflicting applications, is amended to add 
    criteria to be considered in granting a use authorization or permit or 
    lease. The rule incorporates the history of applicants' and affiliates' 
    compliance with the terms and conditions of Federal and State grazing 
    permits and leases and demonstrated stewardship of the public lands as 
    criteria for granting permits or leases where there is more than one 
    qualified applicant.
        Section 4130.2, Grazing permits or leases, is amended so that 
    permits and leases will continue to be offered for 10-year terms except 
    in specified circumstances. The final rule also clarifies that all 
    grazing permits and leases issued, including the transfer or renewal of 
    permits and leases, will include terms and conditions addressing the 
    fundamentals of rangeland health and standards and guidelines proposed 
    under subpart 4180, as well as terms and conditions establishing 
    allowable levels, seasons and duration of use, and other factors that 
    will assist in achieving management objectives, provide for proper 
    range management, or assist in the orderly administration of the public 
    rangelands. The final rule also provides that the authorized officer 
    must consult with interested parties prior to the issuance or renewal 
    of grazing permits and leases and prohibits the offering or granting of 
    permits and leases to applicants who refuse to accept the terms and 
    conditions of the offered permit or lease.
        The final rule clarifies the process of application for and 
    granting of conservation use and temporary nonuse. Conservation use is 
    established as one of the allowable uses for which a permit or lease 
    may be granted when it is in conformance with the applicable land use 
    and activity plans and the appropriate standards and guidelines.
        Forage made available as a result of temporary nonuse may be 
    authorized for temporary use by another operator. Forage used for 
    conservation purposes would not be available to other livestock 
    operators. The procedures guiding approval of nonuse have been 
    developed in response to a recommendation from the March 19, 1986, 
    OIG's review of the grazing management program.
        Section 4130.3, Terms and conditions, is amended through a minor 
    addition to reflect the requirement to conform with the fundamentals of 
    rangeland health and standards and guidelines of subpart 4180.
        Section 4130.3-1, Mandatory terms and conditions, is amended 
    through minor additions and deletions which [[Page 9904]] clarify that 
    use must not exceed the livestock carrying capacity of the allotment, 
    and by removing unnecessary references to previous sections. The 
    section is further amended to add a paragraph (c) that requires that 
    the fundamentals of rangeland health and the appropriate standards and 
    guidelines be reflected in the terms and conditions of permits, leases 
    and other authorizations.
        Section 4130.3-2, Other terms and conditions, is amended to provide 
    for proper rangeland management and to remove unnecessary language. The 
    final rule allows terms and conditions to provide for improvement of 
    riparian area functions and protection of rangeland resources and 
    values consistent with applicable land use plans. Paragraph (h) 
    affirmatively states that BLM will have reasonable administrative 
    access across the permittee's or lessee's owned or leased private lands 
    for the management and protection of public land.
        Section 4130.3-3, Modification, is amended to clarify consultation 
    requirements in the modification of terms and conditions of permits and 
    leases. The rule provides for greater State and public participation 
    when changes are proposed that are not within the scope of the existing 
    permit or lease. The rule also provides for increased State and public 
    participation during the evaluation of monitoring results or other data 
    that provide a basis for decisions regarding grazing use or management.
        Section 4130.4, Authorizations within terms and conditions of 
    permits and leases, is amended to allow field managers to make 
    temporary changes in authorized use that are within the scope of 
    existing permits and leases.
        Section 4130.5, Free-use grazing permits, is modified to reflect 
    new circumstances under which the authorized officer may grant free-use 
    permits. This new provision was contained in Sec. 4130.7-1 of the 
    proposed rule.
        The final rule provides that free use can be permitted where the 
    primary objective of authorized grazing use or conservation use is the 
    management of vegetation to meet resource objectives other than the 
    production of livestock forage, to conduct scientific research or 
    administrative studies, or to control noxious weeds.
        Section 4130.6-1, Exchange of use grazing agreements, is amended to 
    specify that exchange of use grazing agreements must be consistent with 
    management objectives and compatible with existing livestock 
    operations. The agreements will be required to address the fair sharing 
    of maintenance and operation of range improvements and will be approved 
    for the same term as any leased lands that are offered.
        Section 4130.6-2, Nonrenewable grazing permits and leases, is 
    modified to require the authorized officer to consult with the affected 
    permittee or lessee, the State, and the interested public before 
    issuing a nonrenewable permit.
        Section 4130.6-3, Crossing permits, is modified to specify that 
    crossing permits are a form of temporary use authorization.
        Section 4130.7. Ownership and identification of livestock, is 
    amended to make it clear that, before grazing livestock owned by 
    persons other than the permittee or lessee, the permittee or lessee 
    must have an approved use authorization and must have submitted a copy 
    of the documented agreement or contract that includes information 
    required for BLM's administration of permits and leases and management 
    of rangeland resources.
        Sons and daughters of permittees or lessees are exempted from the 
    provisions of this section in specified circumstances. This is 
    necessary to allow sons and daughters, who are grazing livestock on 
    public lands under their parents' permit or lease in specified 
    circumstances, to avoid the pasturing surcharge provided in 
    Sec. 4130.8.
        Section 4130.8-1, Payment of fees, is amended to make clear the 
    definition of a billing unit, to provide for the assessment of a 
    surcharge for authorized pasturing of another owner's livestock and to 
    clarify that grazing use that occurs before a bill is paid is an 
    unauthorized use, may be dealt with under the settlement and penalties 
    sections of these regulations. Also, the section is amended to clarify 
    that delays in payment of actual use billings and noncompliance with 
    the terms and conditions of permits or leases may result in the loss of 
    after-the-grazing-season billing privileges authorized under an AMP. 
    For administrative convenience, the assessment of pasturing surcharges 
    will not begin until the start of the next grazing year, March 1, 1996.
        The final rule recognizes two types of authorized subleasing. The 
    first is the sublease of public land grazing privileges along with the 
    base property associated with the permit or lease. Such a sublease of 
    the public land grazing privileges must be accompanied by a lease or 
    sublease of the associated base property and the BLM authorized officer 
    must approve the transfer of the grazing permit or lease. Such 
    transfers shall be for a minimum of three years unless it is determined 
    by the authorized officer that a shorter period is consistent with 
    management and resource condition objectives. The second is a pasturing 
    agreement under which livestock not owned by the permittee or lessee, 
    but under the control of the permittee or lessee, is allowed to graze 
    on the public lands that are subject to a permit or lease. The BLM 
    authorized officer must approve such pasturing agreements. Other types 
    of subleasing arrangements will be considered unauthorized. A surcharge 
    for the lease or sublease of public land grazing privileges associated 
    with base property is not adopted in the final rule.
        The final rule provides for the collection of a surcharge for 
    authorized pasturing activities associated with a Federal permit or 
    lease. The final rule provides for a surcharge of 35 percent of the 
    difference between the grazing fee per AUM rate and the prior year's 
    private lease rate for the appropriate State as determined by the NASS 
    for forage used by livestock owned by another party other than the 
    permittee or lessee.
        The final rule excludes from the pasturing surcharge sons and 
    daughters of permittees or lessees grazing livestock on public lands as 
    part of an educational or youth program pertaining to livestock 
    rangeland management, or when establishing a livestock herd in 
    anticipation of assuming part or all of the family ranch operation.
        Section 4130.8-3, Service charge, is amended to include temporary 
    nonuse and conservation use in the list of items for which BLM may 
    assess a service charge. The service fee will offset the costs of 
    processing such applications.
    Subpart 4140--Prohibited Acts
        Section 4140.1, Prohibited acts on public lands, is amended to 
    clarify that failure to make substantial use as authorized is a 
    prohibited act, but that approved temporary nonuse, conservation use, 
    and use temporarily suspended are not prohibited acts.
        This section also clarifies that it is prohibited to use public 
    lands for grazing without a permit or lease and an annual grazing 
    authorization. Furthermore, mere receipt of a grazing fee bill does not 
    authorize grazing use of the range; the bill must actually be paid. 
    (However, Sec. 4140.1(c) specifically provides for civil penalties only 
    where violations, including unauthorized use resulting from payment by 
    a check that is not honored, are repeated and willful.) The final rule 
    also makes it clear that the permittee is responsible for controlling 
    livestock so cattle do not [[Page 9905]] stray onto ``closed to range'' 
    areas where grazing is prohibited by local laws, such as formally 
    designated agriculture districts or municipalities. The final rule 
    specifies that permittees or lessees are subject to penalties if they 
    violate Federal or State laws pertaining to protection of bald eagles, 
    endangered or threatened species, and wild horses and burros; the 
    placement of poisonous bait or hazardous devices designed for the 
    destruction of wildlife; application or storage of pesticides, 
    herbicides or other hazardous materials; alteration of stream courses 
    without authorization; pollution of water sources; illegal take; 
    destruction or harassment of fish and wildlife; and illegal removal or 
    destruction of archeological or cultural resources when public lands 
    are involved or affected.
        Other changes in the section clarify that it is unlawful to harm 
    livestock authorized to graze on public land, and to interfere with 
    other lawful uses of the land. These provisions include a prohibition 
    on obstructing free transit across public land.
        Finally, provisions which specify that violations subject to 
    penalty under Sec. 4170.1-1 are limited to those where public land 
    administered by the Bureau of Land Management is involved or affected, 
    the violation is related to grazing use authorized by permit or lease, 
    and the permittee or lessee has been convicted or otherwise found to be 
    in violation of any of these laws or regulations by a court or by final 
    determination of an agency charged with the administration of these 
    laws or regulations, and no further appeals are outstanding, are moved 
    from proposed Sec. 4170-1-3 and incorporated into this final section.
    Subpart 4150--Unauthorized Grazing Use
        Section 4150.1, Violations, is reorganized for clarity and amended 
    to add the requirement that the authorized officer must determine 
    whether a violation is nonwillful, willful, or repeated willful. This 
    clarifies subsequent sections of the rule.
        Section 4150.2, Notice and order to remove, is amended to provide 
    authority for the authorized officer to exercise discretion in 
    determining how nonwillful violations will be settled, close areas 
    temporarily for a period of up to 12 months to specified classes and 
    kinds of livestock in order to abate unauthorized use, and allow 
    notices of closure to be issued as final decisions.
        Section 4150.3, Settlement, is amended to provide the authorized 
    officer with the authority to consider nonmonetary settlement for 
    unintentional incidental trespasses, in cases when the authorized 
    officer determines the livestock operator is not at fault, when an 
    insignificant amount of forage has been consumed, when damage to the 
    public lands has not occurred, and when nonmonetary settlement is in 
    the best interest of the United States. The method for determining 
    settlement amounts is amended. Settlement for nonwillful violations 
    equals the value of forage based on the monthly rate per AUM for 
    pasturing livestock on private, nonirrigated land in the State in which 
    the violation occurred.
    Subpart 4160--Administrative Remedies
        Subpart 4160, Administrative remedies, is amended to improve 
    organization, clarify administrative processes and requirements, 
    provide for application of the Departmental rule located at Sec. 4.21 
    of this title regarding effectiveness of a decision pending appeal and 
    procedures for obtaining a stay, and provide for the issuance of 
    decisions that take effect immediately.
        Section 4160.1, Proposed decisions, is amended to clarify that a 
    final decision may be issued without first issuing a proposed decision 
    when action under paragraph 4110.3-3(b) of this part is necessary to 
    protect rangeland resources, or when action is taken under paragraph 
    4150.2(d) to close an area to unauthorized grazing use. Other 
    provisions clarify the information that must be contained in a proposed 
    decision, and specify that decisions will be served by certified mail 
    or personal delivery.
        Sections 4160.1-1 and 4160.1-2 are removed.
        Section 4160.3, Final decisions, is amended to clarify the process 
    for filing an appeal and a petition for a stay of a final decision. It 
    provides that decisions will be implemented at the end of the 30-day 
    appeal period except where a petition for stay has been filed with OHA, 
    in which case OHA will have up to 45 days to act on the petition. If 
    the petition is granted, the decision will be stayed until resolution 
    of the appeal.
        The final rule also clarifies the amount of grazing use that is 
    authorized when a decision has been stayed by OHA. Where an appellant 
    has had no authorized grazing use during the preceding year, the 
    authorized grazing use must be consistent with the decision, pending a 
    final determination on appeal. Where a decision proposes a change in 
    the amount of authorized grazing use, the authorized grazing use during 
    the time an appeal is pending will not exceed the appellant's 
    previously authorized use.
        Finally, this section provides authority to the authorized officer 
    for making decisions effective immediately, unless a stay is granted, 
    when it is necessary to protect rangeland resources under the standards 
    imposed by Sec. 4110.3-3(b), or to facilitate abatement of unauthorized 
    use by closing an area temporarily to grazing use under Sec. 4150.2 of 
    this part.
        Section 4160.4, Appeals, provides instructions regarding the filing 
    of appeals and petitions to stay decisions. When a final decision is 
    issued, any person whose interest has been adversely affected may file 
    an appeal and a petition for stay of the decision within 30 days from 
    the date of receipt of a final decision, or 30 days from the date a 
    proposed decision becomes final in the absence of a protest. Under the 
    process of Sec. 4.21 of this title, OHA is allowed 45 days from the end 
    of the appeal period to review a petition for stay.
    Subpart 4170--Penalties
        Section 4170.1-1, Penalty for violations, is amended to provide for 
    a penalty for unauthorized leasing and subleasing in the amount of two 
    times the private grazing land lease rate for the state in which the 
    violation occurred as supplied annually by the NASS, as well as 
    reasonable expenses incurred by the United States in detecting, 
    investigating, and resolving the violation.
        Section 4170.1-2, Failure to use, is amended to provide that if a 
    permittee or lessee has, for 2 consecutive grazing fee years, failed to 
    make substantial use as authorized in the lease or permit, or has 
    failed to maintain or use water base property in the grazing operation, 
    the authorized officer, after consultation with the permittee or 
    lessee, may cancel whatever amount of permitted use the permittee or 
    lessee has failed to use.
        Section 4170.1-3, Federal or State animal control and environmental 
    protection or resource conservation regulations or laws, is removed. 
    The substance of this section is incorporated in Sec. 4140.1(c) of this 
    final rule.
        Section 4170.2-1, Penal provisions under TGA, is revised slightly 
    to specify that any person who willfully commits an act prohibited 
    under Sec. 4140.1(b), or who willfully violates approved special rules 
    and regulations, is punishable by a fine of not more than $500.
        Section 4170.2-2, Penal provisions under FLPMA, is amended to adopt 
    the alternative fines provisions of Title 18 U.S.C. section 3571. 
    [[Page 9906]] 
    Subpart 4180--Fundamentals of Rangeland Health and Standards and 
    Guidelines for Grazing Administration
        Section 4180.1, The fundamentals of rangeland health (titled 
    National Requirements for Grazing Administration in the proposed rule) 
    for grazing administration, are added to establish fundamental 
    requirements for achieving functional, healthy public rangelands. These 
    fundamentals address the necessary physical components of functional 
    watersheds, ecological processes required for healthy biotic 
    communities, water quality standards, and habitat for threatened or 
    endangered species or other species of special interest.
        Where it is determined that existing grazing management needs to be 
    modified to ensure that the conditions of healthy rangelands set forth 
    in Sec. 4180.1, Fundamentals of rangeland health, are met or 
    significant progress is being made to meet the fundamentals, the 
    authorized officer must take appropriate action as soon as practical, 
    but not later than the start of the next grazing season. This may 
    include actions such as reducing livestock stocking rates, adjusting 
    the season or duration of livestock use, or modifying or relocating 
    range improvements.
        Section 4180.2, Standards and guidelines for grazing 
    administration, is added to direct that standards and guidelines will 
    be developed for an entire State or for an area encompassing portions 
    of more than one State, except where the geophysical or vegetal 
    character of an area is unique and the health of the rangelands will 
    not be ensured by using standards and guidelines developed for a larger 
    geographical area. The geographical area covered will be determined by 
    BLM State Directors in consultation with affected RACs. Once standards 
    and guidelines are in effect, the authorized officer shall take 
    appropriate action as soon as practical, but not later than the start 
    of the next grazing year upon determining that existing grazing 
    management practices are significant factors in failing to ensure 
    significant progress toward the fulfillment of the standards and toward 
    conformance with the guidelines. The preparation of standards and 
    guidelines will involve public participation and consultation with 
    RACs, Indian tribes, and Federal agencies responsible for the 
    management of lands within the affected area.
        Section 4180.2(d) lists factors that, at a minimum, must be 
    addressed in the development of State or regional standards. The 
    guiding principles for the development of standards pertain to the 
    factors needed to help achieve rangeland health. More specifically, the 
    factors relate to watershed function, threatened or endangered species 
    and candidate species, habitat for native plant and animal populations, 
    water quality and the distribution of nutrients and energy flow. 
    Section 4180.2(e) lists guiding principles to be addressed in the 
    development of guidelines.
        The rule provides that where State or regional standards and 
    guidelines are not completed and in effect by February 12, 1997, the 
    fallback standards and guidelines included in the text of the rule will 
    be implemented. The fallback standards and guidelines address largely 
    the same factors that are provided in the guiding principles for the 
    development of the State or regional standards and guidelines. The 
    fallback standards include more detail regarding the conditions that 
    would exist under each of the factors when rangelands are in a healthy, 
    functional condition than do the guiding principles presented in 
    Sec. 4180.2(d). Similarly, the fallback guidelines include grazing 
    management practices while the guiding principles of Sec. 4180.2(e) 
    refer more generally to the types of concerns to be addressed in the 
    development of State or regional guidelines.
        Standards and guidelines will be applied through terms and 
    conditions of grazing permits, leases and other authorizations, through 
    AMPs and other activity plans, and through the conditions of 
    cooperative range improvement agreements and range improvement permits. 
    The Department recognizes that rangelands within a given area may be in 
    functional, healthy conditions even though individual isolated sites do 
    not meet the standards or guidelines. However, the Department believes 
    that general failure to meet the benchmarks across a broader area, such 
    as a typical BLM grazing pasture or BLM allotment, would be reliable 
    evidence that the area is not in healthy, functional condition.
    
    IV. General Comments
    
        Numerous comments addressed the overall rulemaking. These comments 
    asserted several central themes which crosscut different sections of 
    the rulemaking. Accordingly, BLM has decided to address these central 
    issues in this portion of the preamble. Within the context of such 
    discussion, particular sections of the proposed and final rules will be 
    referred to as necessary. Nevertheless, in these responses, BLM focuses 
    upon central issues that were of concern to commenters throughout the 
    proposal. Comments that were more specific to a particular section are 
    discussed in the following section entitled Section-by-Section Analysis 
    and Responses to Public Comments.
    
    Rangeland Reform Is Not Needed
    
        Some commenters took the position that general rangeland 
    improvement is unnecessary. Their view was that current legislation, 
    regulations, and procedures provide enough latitude and capability for 
    the government to administer the public rangelands properly, therefore 
    there is no justification for designing and implementing the rangeland 
    improvement program. They stated that the initiative should be dropped 
    or abandoned immediately. They asserted that the government has not 
    shown that the proposal will benefit the western range and many of the 
    elements of the rule are more appropriately dealt with in manuals, 
    instruction memos, and policy guidance.
        In addition, the comment was often made that the National Research 
    Council study commissioned by the National Academy of Sciences reports 
    that the conditions of rangeland health in the West are largely 
    unknown. If the conditions are unknown, stated the commenters, it is 
    impossible to demonstrate a need for the proposed rule. Some commenters 
    stated that the entire proposal and EIS were politically driven and did 
    not relate to the resource protection issues of public land 
    administration.
        The Department believes that there is a need for changes in public 
    rangeland grazing administration. The Department has been collecting 
    data on the condition of the rangelands for over 60 years. The 
    Department does have considerable information on all BLM lands, based 
    on these years of data collection, although the same level of detailed 
    knowledge may not be available on every allotment. The information 
    available is sufficient to identify trends in rangeland health across 
    the western rangelands.
        The status and trends of the western rangelands upon passage of the 
    Public Rangelands Improvement Act (PRIA) in 1978 indicated that western 
    rangelands were producing below their potential and that rangelands 
    would remain in unsatisfactory condition or decline further unless the 
    unsatisfactory conditions could be addressed and corrected by intensive 
    public rangelands maintenance, management and improvement. Congress 
    articulated its view in PRIA that such unsatisfactory conditions on 
    public rangeland present a risk for soil loss, siltation, 
    [[Page 9907]] desertification, water loss, loss of wildlife and fish 
    habitat, loss of forage for livestock and other grazing animals, 
    degradation of water quality, flood danger, and threats to local 
    economies. In addition, BLM National Public Lands Advisory Council 
    recommended in 1992 that ``* * * foremost consideration needs to be 
    given to protecting the basic components of soil, water and vegetation. 
    Without assurances for the future well-being of these basic natural 
    resources, there is little to squabble about.''
        BLM's research has concluded that in the long term under current 
    management practices 22 million acres of BLM uplands would be 
    functioning but susceptible to degradation, and about 20 million acres 
    would be nonfunctioning. The vegetation in some areas would change from 
    potential natural communities to mid seral or late seral stages because 
    of overgrazing, fire, or drought. Conditions would be worse in riparian 
    and wetland areas. The overall trends would be a slow, steady, long-
    term decline in conditions. Approximately 466,000 acres of riparian 
    areas (43 percent of the total) on BLM land would be functioning but 
    susceptible to degradation, and 219,000 acres (21 percent) would be 
    nonfunctioning. The results of these studies are reported in detail in 
    the FEIS on this rulemaking. These studies show that without some 
    changes in the current program conditions in critical riparian areas 
    would continue to decline.
        The program of rangeland improvement responds to the needs of BLM 
    to ensure the efficient administration and management of public 
    rangelands, as well as to the findings expressed by Congress most 
    recently in PRIA, the National Public Lands Advisory Council, and the 
    Western Governors' Association. The program has included and will 
    continue to include significant public involvement. The FEIS associated 
    with the rulemaking examined several alternatives, including continuing 
    grazing administration under current rules and procedures. The impact 
    analysis in Chapter 4 of the EIS demonstrates there would be 
    substantial improvement in riparian areas, uplands, and only slightly 
    reduced forage availability under the alternative adopted today when 
    compared to a continuation of current management.
        Some commenters asserted that rangeland improvement is unnecessary 
    because it will not improve the condition of the public rangelands. The 
    Department disagrees. Commenters argued that few permittees or lessees 
    are poor stewards of the public rangelands. They stated that the 
    program will alienate many conscientious ranchers. The commenters 
    asserted that the agencies and public may lose the service and support 
    of these users in maintaining and improving the conditions of the 
    public rangelands, and that rangeland conditions are likely to degrade. 
    Therefore, they claimed, the initiative should be abandoned. However, 
    the Department believes that improving administration of public 
    rangelands will improve their condition, which will benefit all uses, 
    including livestock grazing. This is discussed more fully in the FEIS 
    on this rulemaking.
        The standards and guidelines in the final rule are aimed at 
    improving the ecological health of the rangelands. The analysis in the 
    FEIS indicates there will be significant improvements.
        The Department recognizes that the majority of public land grazing 
    permittees and lessees are conscientious stewards. However, it also 
    notes that line managers need clear authority and guidance to help 
    correct problems in grazing use and to improve the degraded condition 
    of some areas expeditiously. This program is intended to facilitate 
    cooperation between BLM employees and public land users in making those 
    improvements. Also, by making BLM and Forest Service management more 
    similar, it will be easier for permittees and lessees to comply with 
    land use requirements. Good stewards will not be adversely affected by 
    this initiative and will have an opportunity to work with the 
    Department to sustain the economic vigor of their industry while 
    maintaining or improving the ecological health of the public lands. The 
    Department recognizes that it is in the best interests of the users, 
    the public, and BLM to cooperate in meeting these objectives.
        Commenters also stated that the Department has gone through the 
    formalities of public input but has failed to make public the findings 
    and statistics of the letters and meetings. During development of the 
    final rule, the Department considered all comments, and as a result has 
    modified the language of the proposed rule. All comments received are 
    available for review in BLM's administrative record. The section-by-
    section portion of this preamble explains the changes made to the 
    proposed rule in this final rule.
    
    Rangeland Improvement Is Inconsistent With Current Laws
    
        Conflicts with TGA, FLPMA, and other laws. A number of comments 
    questioned whether the proposed amendments to the grazing rule conflict 
    directly with TGA, FLPMA, PRIA and other related Federal laws. The 
    BLM's main statutory authorities for regulating grazing on the public 
    lands are TGA, FLPMA and PRIA. In TGA Congress directed the Secretary 
    to bring order to the management of the public rangelands and improve 
    range conditions.
        Specifically, Section 2 of TGA provides:
    
        The Secretary of the Interior shall make provision for the 
    protection, administration, regulation, and improvement of such 
    grazing districts * * * and he shall make such rules and regulations 
    * * * and do any and all things necessary to accomplish the purposes 
    of this Act * * * namely to regulate their occupancy and use, to 
    preserve the land and its resources from destruction or unnecessary 
    injury, to provide for the orderly use, improvement, and development 
    of the range * * *.
    
        The TGA authorizes the Secretary to, among other things, establish 
    fees, issue permits and leases and prescribe terms and conditions for 
    them, issue range improvement permits, and provide for local hearings 
    on appeals. The emphasis on disposal of Federal lands changed with the 
    Classification and Multiple Use Act in 1964 and FLPMA in 1976. In FLPMA 
    Congress articulated the national policy that ``the public lands be 
    retained in Federal ownership.'' 43 U.S.C. 1701. FLPMA also directs 
    that land management be on the basis of multiple use and sustained 
    yield, thus clarifying that other uses of public lands are equally 
    appropriate. FLPMA did not repeal TGA, but did provide additional 
    management direction. For example, section 402 of FLPMA provides that 
    grazing permits and leases shall be:
    
        [S]ubject to such terms and conditions the Secretary concerned 
    deems appropriate and consistent with the governing law, including, 
    but not limited to the authority of the Secretary concerned to 
    cancel, suspend, or modify a grazing permit or lease for any 
    violation of a grazing regulation or of any term or condition of 
    such grazing permit or lease.
    
        In 1978 Congress again focused on the public rangelands when it 
    passed PRIA. In Section 2 of that Act Congress found that ``vast 
    segments'' of the public rangelands were ``producing less than their 
    potential for livestock, wildlife habitat, recreation, forage and water 
    and soil conservation benefits,'' and so were considered to be in an 
    unsatisfactory condition.'' Congress went on in Section 2 to reaffirm a 
    national commitment to ``manage, maintain and improve the condition of 
    the public rangelands so that they become as productive as feasible for 
    all rangeland values.'' The [[Page 9908]] Department has concluded that 
    the amendments to the grazing rule are within the statutory authority 
    granted by Congress to the Secretary to administer the public lands 
    under TGA, FLPMA, PRIA, and related acts.
        NEPA issues. A number of commenters asserted that the draft EIS was 
    inadequate. The commenters asserted that more local EISs were required. 
    The FEIS prepared for the rangeland improvement program describes the 
    environmental impacts that would result from several proposed 
    alternatives for managing BLM administered rangeland and for changing 
    the fees charged to permittees and lessees. Any subsequent narrower 
    decisions, such as the state or regional standards and guidelines or, 
    if necessary, more local determinations, will tier to the broader 
    national FEIS. Tiering is appropriate when a subsequent EIS or 
    environmental assessment is prepared on an action included in the 
    overall EIS, in this case, the FEIS prepared for the overall program. 
    Additional NEPA analysis will be conducted as appropriate as local or 
    regional decisions are made.
        FACA Issues. A number of commenters stated that some of the 
    proposals relating to RACs, especially the provisions regarding task 
    forces of those councils, were violations of FACA. The Department 
    disagrees. The final rules adopted today provide that any subcommittee 
    will report directly to the chartered advisory council. The advisory 
    council will then independently review the input from the subcommittee 
    prior to presenting any consensus advice to the agency. As long as 
    subcommittees report to the agency through the chartered advisory 
    committee, and do not provide advice directly to the agency, their 
    operation is consistent with the requirements of FACA.
        Takings. Some commenters asserted that various sections of the 
    proposed rule raise the possibility of a ``taking'' of private property 
    rights without ``just compensation.'' The United States Constitution 
    gives Congress the ``Power to dispose of and make all needful Rules and 
    Regulations respecting the Territory or other Property belonging to the 
    United States.'' Article IV, Sec. 3, cl. 2. The power includes 
    authority to control the use and occupancy of Federal lands, to protect 
    them from trespass and injury and to prescribe the conditions upon 
    which others may obtain rights in them. Utah Power & Light Co. v. 
    United States, 243 U.S. 389, 405 (1917).
        In a series of laws, Congress has delegated primary responsibility 
    and authority to manage livestock grazing on public lands to the 
    Secretary, acting through BLM. The basic laws are TGA, FLPMA and PRIA. 
    In authorizing the issuance of grazing permits in TGA, Congress 
    expressly provided that the ``issuance of a permit * * * shall not 
    create any right, title, interest, or estate in or to the [public] 
    lands.'' 43 U.S.C. 315b. In FLPMA, Congress authorized the Secretary to 
    ``cancel, suspend, or modify a grazing permit or lease, in whole or in 
    part, pursuant to the terms and conditions'' of the permit or lease. 43 
    U.S.C. Sec. 1752(a). The same section also authorizes the Secretary to 
    ``cancel or suspend a grazing permit or lease for any violation of a 
    grazing rule or of any term or condition of such permit or lease.'' 
    These statutes are implemented by BLM's regulations at 43 CFR Part 4100 
    et seq., including the amendments adopted here.
        The Fifth Amendment to the United States Constitution provides in 
    relevant part that no person shall be denied property without due 
    process of law, and no private property shall be taken for public use, 
    without just compensation. This Amendment protects private property. 
    Because Congress made clear in TGA that grazing permits create no 
    private property interest in public lands, the Fifth Amendment's 
    protection is not implicated. The Courts have long held that no taking 
    of private property occurs in the course of lawful administration and 
    regulation of Federal grazing lands because the grazing permit 
    represents a benefit or privilege bestowed by the Federal government 
    upon a private individual and not a compensable property interest under 
    the Fifth Amendment.
        Thus, an authorized officer's decision to change permitted use 
    (Sec. 4110.3), decrease permitted use (Sec. 4110.3-2), implement a 
    reduction in permitted use (Sec. 4110.3-3), decrease land acreage 
    (Sec. 4110.4-2), approve an AMP (Sec. 4120.2), or approve a cooperative 
    range improvement agreement (Sec. 4120.3-2) does not give rise to a 
    takings claim.
        Some commenters asserted that permittees and lessees should be 
    compensated for any indirect adverse impact that cancellation, 
    nonrenewal, suspension or modification of grazing permits might have on 
    the permittee's base property. While base property is private property 
    protected by the Fifth Amendment, the United States Supreme Court, in 
    an opinion by Chief Justice Rehnquist, specifically considered and 
    rejected the argument that the increment of value added to a private 
    ranch by a public land grazing permit is a compensable property 
    interest, United States v. Fuller, 409 U.S. 488 (1973).
        Even if, in other words, cancellation, nonrenewal, suspension, or 
    changes in the terms and conditions of a grazing permit might have some 
    negative effect on the value of the base property, the Supreme Court 
    has made clear this is not a ``taking.''
        Some commenters asserted that the proposal to clarify title to 
    future permanent range improvements on the public lands in the name of 
    the United States constitutes a ``taking'' of private property. The BLM 
    has concluded that proper management of the public lands requires title 
    to permanent improvements on the public lands to remain with the land 
    and be held in the name of the United States. This clarification brings 
    BLM in line with Forest Service policy. This provision is prospective 
    in application; that is, it will not affect ownership or rights that 
    may currently be held in a range improvement. In FLPMA, Congress 
    provided for limited compensation for permanent improvements when a 
    permit or lease is cancelled in whole or in part, in order to devote 
    the public lands to another public purpose, including disposal. 43 
    U.S.C. 1752(g). To be faithful to this Congressional directive, the 
    amendment requires the authorized officer to retain a record of 
    permittee or lessee contributions to specific authorized range 
    improvement projects. This record will be available for use in 
    determining any compensation owed the permittee or lessee in the event 
    a permit or lease is cancelled in order to devote the public lands to 
    another public purpose.
        Comments were also received on a proposed amendment to require 
    permittees or lessees, as a term or condition of a grazing permit or 
    lease, to allow BLM reasonable administrative access across non-Federal 
    lands under its control for the orderly management and protection of 
    the public lands. Sometimes, because of the location and configuration 
    of public and non-Federal lands, BLM personnel need reasonable access 
    across non-Federal lands under the control of permittee or lessee to 
    access Federal land in order to carry out its management 
    responsibilities on public land. Providing for such access is a 
    reasonable condition to attach to the permit or lease authorizing 
    livestock grazing on public lands.
        Administrative appeals procedures. Many commenters raised questions 
    of fairness and appeals; many of these commenters referred to these as 
    ``due process'' issues. The existing administrative and applicable 
    judicial protections afforded permittees and [[Page 9909]] lessees 
    pertaining to the issuance, modification, suspension, cancellation, 
    renewal and general administration of grazing permits and leases will 
    continue. For example, some commenters read the proposal to amend 
    Sec. 4.477 to require a permittee to choose between the evidentiary 
    hearing provided by TGA and a stay of a final decision. A permittee 
    will not have to choose between an appeal and requesting a stay. Both 
    will be available.
        The provisions adopted today make the procedures for appealing a 
    final decision consistent with standard Departmental procedures for 
    other types of appeals. Any person whose interest is adversely affected 
    by a decision of the authorized officer has full appeal rights. 
    Standing to maintain an appeal will continue to be determined by OHA. 
    Except in situations where immediate action is needed for resource 
    protection in accordance with the standards set forth in Secs. 4110.3-
    3(b) and 4150.2(d), BLM will issue proposed decisions, which may be 
    protested. Except in situations where immediate action is needed for 
    resource protection in accordance with the standards set for in 
    Secs. 4110.3-3(b) and 4150.2(d), no decisions will be effective until 
    after the 30-day appeal period. The applicant can also file a petition 
    for a stay of the decision while final determinations on appeal are 
    being considered. If a petition for a stay is filed along with the 
    appeal, the decision may be temporarily stayed for up to 45 days after 
    the end of the 30-day period for filing an appeal while the petition is 
    being considered. If a stay is granted, it will suspend the effect of 
    the decision until final disposition of the appeal. Finally, parties 
    have the option to seek administrative or judicial review of a decision 
    that is put into immediate effect.
    
    V. Section-by-Section Analysis and Responses to Public Comments
    
    Part 4 of Title 43--Department Hearings and Appeals Procedures
    
    Section 4.477  Effect of Decision Suspended During Appeal
        The proposed rule would have revised the heading of this section to 
    reflect that grazing decisions would no longer automatically be 
    suspended when an appeal is filed as provided in the proposed revision 
    of 43 CFR subpart 4160, and would also have removed other references to 
    suspension of the decision of the authorized officer upon appeal.
        Comments on this section addressed several major issues. Some 
    commenters asserted that the proposal did not provide adequate 
    opportunity for administrative appeals and violated various statutory 
    provisions. Some read the proposal to require a permittee to choose 
    between the evidentiary hearing provided by TGA and a stay of a final 
    decision. Other commenters were concerned about possible fiscal impacts 
    of the provision. Other commenters stated that the proposed provision 
    would speed implementation of needed grazing decisions.
        The provisions adopted today make the procedures for appealing a 
    final decision consistent with standard Department procedures for other 
    types of appeals. These procedures are detailed in regulations of the 
    Department's OHA, Title 43 of the Code of Federal Regulations, Part 4, 
    Subpart B. Any person whose interest is adversely affected by a 
    decision of the authorized officer still has full appeal rights. Except 
    in situations where immediate action is needed for resource protection 
    in accordance with the standards set forth in Secs. 4110.3-3(b) and 
    4150.2(d), decisions will not be in effect until after the 30-day 
    appeal period. An appellant can also file a petition for a stay of the 
    decision while final determinations on appeal are being considered. If 
    a petition for a stay is filed along with the appeal, the decision will 
    be temporarily stayed for up to 45 days after the end of the period for 
    filing an appeal (for a total of up to 75 days) while the petition is 
    being considered. If a stay is granted, it will suspend the effect of 
    the decision until final disposition of the appeal.
        The provision will not require an appellant to choose between this 
    process and the hearing on the evidence granted by TGA. The hearings 
    referenced in this provision do include a review of the evidence on the 
    case. A permittee will not have to choose between having such a hearing 
    and requesting an appeal. Both will be available.
        In accordance with the above discussion, the Department has decided 
    to adopt the provision as proposed. The phrase ``pertaining to the 
    period during which a final decision will not be in effect'' is added 
    to clarify that the reference to Sec. 4.21(a) relates to those specific 
    provisions.
    
    Part 1780--Cooperative Relations
    
    Section 1784.0-5  Definitions
        The proposed section would have replaced the term ``authorized 
    representative'' with ``designated Federal Officer'' to make the 
    terminology of the rule more consistent with the terminology of FACA 
    and 41 CFR 101-6.1019.
        The Department received very few comments on this initial section 
    of the discussion of cooperative relations. The most common issue 
    raised was the abolition of grazing advisory boards (GABs). This issue 
    is covered below under the discussion of Sec. 1784.6-5.
        Some comments suggested that the change from ``authorized 
    representative'' to ``designated Federal officer'' was designed to give 
    greater authority and stature to Federal personnel.
        Each RAC or other advisory committee will have a ``designated 
    officer of the Federal Government,'' as required by section 10(d) of 
    FACA, who will chair or attend each meeting. The regulations 
    implementing FACA, 41 CFR subpart 101, use the term ``designated 
    Federal officer'' and prescribe the authority and responsibility of 
    that position. As required by FACA, this officer will call the meetings 
    of the committees and will develop the agendas of the meetings.
        In accordance with the above discussion, the Department has 
    concluded that the final rule will include these changes as proposed, 
    because it intends that cooperative relations be conducted in 
    conjunction with FACA and the language and requirements of this final 
    rule should be consistent with FACA.
    Section 1784.2-1  Composition
        Under the proposed rule, this section would have been amended by 
    eliminating paragraph (b), and amending existing paragraph (c), which 
    is redesignated new paragraph (b). Previously, paragraph (b) 
    established an eligibility requirement for grazing advisory board 
    members. This requirement would no longer have been necessary with the 
    discontinuance of the grazing advisory boards.
        New paragraph (b) would have added to existing education 
    requirements for committee membership new requirements that individuals 
    can qualify to serve on advisory committees if they have experience or 
    knowledge of the geographic area covered by the committee, and they 
    have demonstrated a commitment to collaborate in seeking solutions to 
    resource management issues.
        Many commenters expressed confusion about the Department's use of 
    the terms ``board,'' ``council'' and ``committee.'' In this final rule, 
    ``council'' is used to refer exclusively to the RACs. ``Committee'' is 
    used in Secs. 1784.0-5, 1784.2-1, 1784.2-2, 1784.3, 1784.5-1, and 
    1784.5-2. These [[Page 9910]] sections have application to all types of 
    advisory committees, not just RACs. A RAC is a type of advisory 
    committee. Sections 1784.6-1 and 1784.6-2 concern RACs. ``Board'' is 
    not used in this final rule.
        Many commenters on this section supported the concept of broadening 
    membership on the councils. Commenters noted that because useful 
    knowledge and expertise is widely distributed in society, membership of 
    advisory committees should be broadened to take advantage of this.
        Some commenters specifically objected to changing this section. 
    There were a number of comments about the specific composition of the 
    councils. Most of these comments were also addressed to subsequent 
    sections, especially Sec. 1784.6-1. Since these comments related to the 
    Department's proposals concerning the makeup of the RACs, they are 
    discussed under that section, below.
        Some commenters made an identical suggestion to change the last 
    clause of Sec. 1784.2-1(b) by striking the requirement that council 
    members have ``demonstrated a commitment to collaborate in seeking 
    solutions to resource management issues.'' One comment stated that 
    commitment without necessary concurrent expertise is useless, and that 
    accommodation for regional differences in a broad range of specific 
    information on each area should be a necessity. A number of commenters 
    questioned who or what should determine adequate experience, and others 
    suggested a better definition was needed.
        A commitment to collaborative decisionmaking is critical to the 
    success of these committees. The Department has concluded that the 
    final rule will adopt the proposed language requiring both appropriate 
    expertise and a commitment to collaborative decisionmaking, because 
    such a balance is the best way to assure the success of any advisory 
    committee.
        FACA requires that the head of an agency appoint members to any 
    committee providing consensus advice to the agency. In the case of 
    RACs, the Secretary must appoint members. In making final selections of 
    RAC members, the Department will make determinations as to what is 
    adequate experience. Since geographic areas covered by individual RACs 
    will be highly variable it would be difficult to define this term too 
    narrowly without unduly limiting the flexibility which will be needed 
    to ensure that each council includes members who will represent a broad 
    range of interests and make a substantive contribution to the 
    committee's deliberations.
        In accordance with the above discussion, the Department has decided 
    to adopt the provision as proposed.
    Section 1784.2-2  Avoidance of Conflict of Interest
        In the proposal, paragraph (a)(1) of this section would have been 
    amended to allow permittees and lessees to serve on any advisory 
    committees, including RACs and their subgroups. This change would have 
    been made to ensure that permittees and lessees, as important 
    stakeholders in the management of public lands, could provide input to 
    advisory committees so that the committees would have been able to 
    develop recommendations based on direct community and user input. 
    Paragraph (b) would have clarified that no advisory committee member 
    could have participated in any matter in which the member had a direct 
    interest. The proposal included a new paragraph (c), which would have 
    provided that members of RACs have to disclose their direct or indirect 
    interest in Federal grazing permits or leases administered by BLM.
        The Department received many comments on this section. Many 
    commenters believed the conflict of interest provisions applied only to 
    ranchers, and stated that such provisions were unfair and should apply 
    to all members of the councils. Many commenters spoke to the membership 
    of environmentalists on the councils. Commenters asserted that 
    environmental groups have a direct conflict of interest. Some asserted 
    that all users of specific areas have an interest in that area, and 
    should be excluded from serving on a council studying the situation in 
    that area. Commenters stated that allowing members of national or 
    regional environmental groups to serve violated the local concept of 
    the RACs.
        A number of commenters asserted that permittees or lessees who were 
    involved in an issue should be involved in the process, so they would 
    have ownership of or support the solution developed in a RAC. Others 
    suggested that since permittees and lessees are bound by the terms and 
    conditions of their permits or leases, and by the provisions of AMPs, 
    it would seem only proper to allow permittees or lessees on a council 
    to provide input into the management decisions which will affect that 
    grazing allotment. One comment suggested that individuals with an 
    interest in an issue should be allowed to participate in the 
    discussions of the issue, but should be excluded from any voting 
    required.
        Another commenter provided a suggested definition of indirect 
    interest that includes any situation in which outside interests, of 
    whatever nature, might lead to substantial interference with or 
    disregard for a duty of serving on a grazing council or committee.
        Commenters challenged the legal basis for a conflict of interest 
    provision. They asserted that if it is based on the Ethics in 
    Government Act, that the law is limited to Federal employees or paid 
    advisors, and that ethical standards under Federal law are not limited 
    to financial gain but include the use of one's official position to 
    promote a personal viewpoint.
        ``Conflict of interest'' is an accepted legal concept that 
    generally refers to ``a clash between public interest and the private 
    pecuniary interest of the individual concerned.'' (Black's Law 
    Dictionary, 5th Edition, 1979, p. 271). The concept applies to 
    situations where a committee member, who is serving a public interest, 
    has private financial interests that might conflict with his or her 
    public role. This would include holding a permit that might be impacted 
    by the deliberations of a RAC.
        The provision does not apply only to permittees or lessees. It 
    applies to all advisory committee members. The provision does not apply 
    to situations in which an individual's interest in the deliberations of 
    a committee is not financial. The provision does not refer to cases 
    where an individual has a membership in an organization that is in 
    litigation with the government, unless the individual has a pecuniary 
    interest in the outcome of the litigation. Furthermore, it does not 
    refer to cases where an individual might develop reports for another 
    organization that in turn might influence agency decisions.
        Permittees and lessees were specifically mentioned in this 
    provision to draw attention to the fact that the proposed rule 
    broadened the opportunities for participation by such persons. Under 
    the previous regulations at Sec. 1784.2-2, permittees and lessees 
    normally would have been prohibited from serving on any committees 
    advising BLM except for grazing advisory boards. Under the provision 
    adopted today, permittees and lessees can participate on the broader 
    based RACs or on any other advisory committee.
        The concepts of ``direct'' and ``indirect'' interest refer back to 
    the basic principle of conflict of interest, and refer to financial 
    matters. Both terms are defined in common usage. ``Direct'' interest 
    refers to an interest [[Page 9911]] which is certain, not in doubt or 
    contingent on some other factor. ``Indirect'' interest refers to an 
    interest contingent on another factor, or through a third party. In the 
    case of permittees, an indirect interest will generally be an interest 
    in a permit or lease that is through a third party, such as a child, 
    spouse, business partner, or other affiliate.
        The rule as finalized allows permittees and lessees with financial 
    interests to serve on committees, thus broadening the base of advice 
    available to the Department. This provision simply requires disclosure 
    of interests by advisory committee members, and prohibits them from 
    participating in specific matters in which they have such interests. It 
    does not prevent persons with a legal interest from serving on 
    committees.
        Comments concerning application of conflict of interest provisions 
    caused the Department to reexamine the types of interests that would 
    have to be disclosed by committee members. In the final rule, as 
    detailed below, the Department has expanded the list of interests that 
    might be held by persons who might serve on RACs and which must be 
    disclosed.
        In the final rule, the Department has sought to correct any 
    confusion between the terms ``council,'' ``committee,'' and ``board,'' 
    as discussed at Sec. 1784.2-1. Conflict of interest provisions apply to 
    all advisory committees that advise the Department as well as to the 
    RACs.
        In accordance with the above discussion, the Department has 
    concluded that the final rule should adopt a modified version of the 
    proposed rule. Modifications have been made to ensure consistency in 
    the use of the terms ``council'' and ``committee,'' and for consistency 
    with other changes to the proposal regarding the structure of RACs, 
    discussed below under Secs. 1784.6-1 and 6-2. Additionally, the word 
    ``multiple'' is eliminated in this section, and in all subsequent 
    sections. The Department has made this decision to simplify the name of 
    the councils.
        In final paragraph (c), the phrase ``leases, licenses, permits, 
    contracts, or claims which involve lands or resources, or in any 
    litigation which involve lands or resources administered by the Bureau 
    of Land Management,'' is substituted for the phrase ``Federal grazing 
    permits or leases.'' This last change is made for consistency with the 
    principle that this provision applies to all types of financial 
    interests. The phrase adopted is consistent with that in existing 
    paragraph (a) of this section. While persons who hold such interests 
    will still not normally be allowed to serve on advisory committees, 
    except for the general exception introduced by this rule for grazing 
    permittees or lessees, under special circumstances such a person may 
    serve on a committee. In such case, the person would be required to 
    disclose his or her interests.
    Section 1784.3  Member Service
        The proposed rule would have established that appointments to 
    advisory committees would have been for two-year terms unless otherwise 
    specified in the charter. Specific references to grazing advisory 
    board, district advisory council and National Public Lands Advisory 
    Council appointments, terms and election procedures, would have been 
    removed.
        Also, the provisions for reimbursement of committee members' travel 
    and per diem expenses would have been modified to make clear that 
    individuals selected by committees to provide input, but who themselves 
    are not appointed committee members, would not have been eligible for 
    reimbursement. This provision was necessary to limit costs.
        Several comments were received on the charters and chartering 
    process for advisory committees. Some comments indicated that as 
    proposed, the changes would create the need for a new charter for each 
    committee which would result in a lack of continuity in committee 
    functioning.
        Today's action amends the general advisory committee regulations 
    found at 43 CFR Subpart 1784. These general regulations contain 
    standards and procedures for the creation, operation and termination of 
    advisory committees to advise the Secretary and BLM on matters relating 
    to public lands and resources under the administrative jurisdiction of 
    BLM. The proposed amendments must comply with the requirements of FACA. 
    Thus the Department's discretion is limited by the terms of FACA.
        FACA directs that advisory committees shall terminate within two 
    years of establishment, unless renewed. At the time of renewal a new 
    charter must be filed. The Department expects that charters will look 
    substantially the same each time they are renewed, although changes may 
    be made if experience suggests revisions are needed. The charter will 
    meet the requirements of FACA, but will be relatively general in 
    nature. Charters will include provisions such as council purpose and 
    responsibilities, membership requirements, and terms of appointments. 
    Bylaws may be prepared by individual councils if needed to provide 
    additional procedural guidance.
        Many comments were received on membership service and tenure. 
    Comments included the following: a public official's term on a 
    committee should coincide with the term of office, vacancies should be 
    filled in the same manner as positions were originally filled, members 
    should be selected on the basis of merit, and membership should be 
    staggered to achieve continuity. Several comments suggested that 
    members should serve for longer than two years so they would become 
    familiar with issues. Some comments indicated that two-year limits 
    should be established. Other comments supported the view that charters 
    should allow lifetime membership. Some comments suggested that members 
    should be elected. Some of these comments suggested that members should 
    be elected by grazing permittees and lessees.
        Under FACA, the Department has some discretion regarding the terms 
    of service for members. Generally, member terms are coterminous with 
    the term of the charter. The Department intends to follow this general 
    practice with RACs, except where special circumstances require 
    otherwise. For example, the Department intends to appoint initial 
    members to staggered terms, so members' terms will not all terminate in 
    the same year. This ensures that there will always be experienced 
    members on a council. The Department expects that some members will be 
    reappointed, providing additional continuity to the councils. These 
    practices have been used successfully in the past.
        As explained in the discussion of Sec. 1784.2-1, appointments to 
    the advisory councils will be by the Secretary, as required by FACA. 
    Secretarial appointment is also required by FLPMA. The Department will 
    seek nominations from Governors, interested groups and private 
    citizens. Members will qualify to serve on advisory committees because 
    their education, training, or experience enables them to give informed 
    and objective advice on matters of interest to the committee. Decisions 
    about replacing members appointed to fill the position of the local 
    elected official when the member's elective term expires will be made 
    on a case-by-case basis. Existing paragraph (b)(2), which by today's 
    action is redesignated (a)(2), provides for filling vacancies occurring 
    by reason of removal, resignation, death, or departure from elective 
    office. Such vacancies are to be filled using the same method by which 
    the original appointment was made. Under existing 
    [[Page 9912]] paragraph (b)(1), which by today's action is redesignated 
    (a)(1), BLM must replace members of committees who are serving in the 
    elected official position, and who leave office. It may be possible in 
    some cases for the member to continue to serve on the council in 
    another appointed position.
        Comments were received both for and against BLM payment of travel 
    and per diem for council members. Some comments suggested that members 
    should volunteer their time and expenses and some comments suggested 
    that non-resident members should pay for their own travel. Other 
    comments questioned whether advisory committee costs would escalate 
    over time and whether councils would be in session all of the time. One 
    comment questioned why members of resource area councils should be 
    reimbursed, but not rangeland resource teams or technical review teams, 
    and suggested that BLM establish technical teams and reimburse the 
    technical team members.
        FLPMA (43 U.S.C. Sec. 1739), as amended by PRIA (43 U.S.C. 1908), 
    requires establishment of advisory committees representative of major 
    citizen interests concerned with resource management planning or the 
    management of public lands. The RACs will fulfill this requirement. 
    Section 309 of FLPMA provides that ``members of advisory councils shall 
    serve without pay, except travel and per diem will be paid each member 
    * * *'' Regulations at 43 CFR subpart 101, Federal Advisory Committee 
    Management, also allow payment of travel expenses and per diem.
        The objective of RACs established under these regulations is to 
    make available to the Department and BLM the advice of knowledgeable 
    citizens and public officials regarding both the formulation of 
    operating standards and guidelines and the preparation and execution of 
    plans and programs for the use and management of public lands, their 
    natural and cultural resources, and the environment. The Department has 
    concluded that to ensure broad and regular participation by members, it 
    will continue to compensate advisory committee members for travel and 
    per diem expenses. The Department does not anticipate that operating 
    these committees will generate a need for substantial increases in 
    Federal funds in the future. In any event, funding is subject to future 
    review in the budget and appropriations process. Moreover, advisory 
    committees are required under FLPMA and the Department has concluded 
    the committee structure adopted in the rule will reap tangible rewards 
    in improved land management and increased cooperation among 
    stakeholders.
        The Department anticipates that the localized teams will be in 
    existence for limited time periods and will focus on fairly narrow 
    issues. As a result, the Department has concluded that members of these 
    teams who are not also members of the parent advisory council will not 
    be reimbursed for travel and per diem. The Department is also making 
    the decision not to reimburse expenses of these localized teams in 
    order to limit the expenses incurred by BLM and the Department. 
    However, the final rule allows BLM to constitute a special function 
    subgroup such as a technical review team and reimburse RAC members for 
    travel expenses. In addition, the Department has the authority to 
    purchase services in support of an advisory council, and on occasion 
    may do so.
        In accordance with the above discussion, the Department has decided 
    to adopt a version of the proposed rule. Several minor changes are made 
    in paragraph (d). All of these changes are intended to clarify that 
    this section applies to all advisory committees, not just RACs. 
    References to resource review teams and technical review teams are 
    omitted from the final version of the rule for that reason, and for 
    consistency with the models of RACs finalized today in Secs. 1784.6-1 
    and 6-2. Those terms are replaced with a more general reference to 
    ``subgroups.''
    Section 1784.5-1  Functions and Section 1784.5-2  Meetings
        These sections would have been amended by replacing the term 
    ``authorized representative'' with the term ``designated Federal 
    officer.'' These changes would have provided consistency with the 
    terminology of FACA.
        No comments were received that pertained solely to these sections. 
    The Department has decided to adopt this provision as proposed.
    Section 1784.6-1  National Public Lands Advisory Council, Reserved 
    Sections 1784.6-2 and 1784.6-3, Section 1784.6-4  District Advisory 
    Councils, and Section 1784.6-5  Grazing Advisory Boards
        References to the National Public Lands Advisory Council, district 
    advisory councils and grazing advisory boards would have been removed 
    in their entirety and replaced with three new sections that would have 
    established multiple resource advisory councils and associated input 
    teams. Sections 1784.6-4 and 1784.6-5 would have been removed. Reserved 
    sections 1784.6-2 and 1784.6-3 would have been replaced by new 
    sections.
        No comments were received on the proposals relating to 
    Secs. 1784.6-2 and 6-3. A number of comments were received concerning 
    Secs. 1784.6-4 and 6-5. Comments directed to Sec. 1784.6-1 have been 
    addressed below in the discussion of the new provisions in that 
    section.
        Many commenters stated that the grazing advisory boards' members 
    had both knowledge of and an interest in the land. Some commenters who 
    supported establishment of the RACs stated that the grazing advisory 
    boards should also be retained; others stated that the grazing advisory 
    boards should be abolished.
        Grazing advisory boards have served a useful purpose in providing 
    the Department with valuable input from permittees regarding grazing 
    issues. However, the statutory provision in FLPMA, section 403, 
    establishing grazing advisory boards expired by its own terms on 
    December 31, 1985. Since then, the boards have been authorized only by 
    Secretarial order. For several reasons, the Department has concluded 
    that it will proceed with its proposal to abolish the boards and to 
    rely on one general form of advisory committee, the RACs. While grazing 
    advisory boards have been useful, the Department believes that more 
    collaborative public rangeland management requires a broader scope of 
    interests advising BLM. The function of grazing advisory boards, as 
    defined by FLPMA, was limited to making recommendations to management 
    concerning the development of AMPs and the utilization of range 
    betterment funds. While grazing advisory boards may have included some 
    individuals not involved in grazing, this was not uniformly the case. 
    RACs will address a full range of resource management issues, including 
    AMPs and planning for the expenditure of range betterment funds and 
    will broaden public involvement in the process.
        All groups that provide advice to the Federal government are 
    subject to the requirements of FACA, unless specifically excluded by 
    statute. FACA specifies a series of requirements for committees and 
    other bodies advising the Federal government, including that they be 
    balanced in terms of representation, have notices of meetings published 
    in the Federal Register and be open to the public, keep various types 
    of records, and implement other procedural safeguards that will assure 
    public involvement in resource management issues. The Department 
    believes it is important that management of the public rangelands 
    [[Page 9913]] involve a wide range of public involvement. To achieve 
    this, and to comply with FACA, the Department has concluded that 
    grazing advisory boards should be abolished and RACs created.
        In accordance with the above discussion, the Department has 
    concluded that the final rule should adopt provisions as proposed 
    because these provide the best alternative for promoting cooperative 
    relationships in resource management.
    Section 1784.6  Membership and Functions of Resource Advisory Councils 
    and Council Subgroups
        In the proposal, the title of this section would have been changed 
    for consistency with subsequent changes in Secs. 1784.6-1 through 6-3. 
    It would have referenced multiple resource advisory councils (MRACs), 
    as well as rangeland resource teams and technical review teams.
        A few comments were addressed to this section, but covered issues 
    relating to the substance of the following sections. They will be 
    discussed under the pertinent sections below.
        Because the Department has concluded that the final rule should 
    adopt a more flexible model for public participation than was 
    envisioned in the proposal, it has changed this title to reflect the 
    three model version of RACs adopted in final rule Secs. 1784.6-1 and 6-
    2. References to rangeland resource teams and technical review teams 
    are changed to ``subgroups'' for that reason, and ``multiple'' is 
    omitted from the name of the RACs, as discussed at Sec. 1784.6-1.
    Section 1784.6-1  Resource Advisory Councils--Requirements
        Under the proposed rule, this section would have provided for the 
    establishment of MRACs. One MRAC has been established for each BLM 
    administrative district except when prohibited by factors such as 
    limited interest in participation, geographic isolation in terms of 
    proximity to users and public lands, or where the configuration and 
    character of the lands is such that organization of councils along BLM 
    district boundaries is not the most effective means for obtaining 
    advice on the management of all the resources across an entire area. 
    The exceptions would have been intended to provide for situations such 
    as those encountered in Alaska where it is difficult for interested 
    persons to participate because of extreme travel distances, or 
    situations where management of neighboring BLM districts or portions of 
    districts involving similar lands can best be served by organizing an 
    MRAC along boundaries other than BLM district administrative 
    boundaries. The determination of the area for which an MRAC would have 
    been organized would have been the responsibility of the affected BLM 
    State Director. Organization by ecoregion boundaries would have been 
    encouraged where appropriate. The Governors of the affected States and 
    established MRACs could have petitioned the Secretary to establish an 
    MRAC for a specific BLM resource area.
        MRACs would have provided advice to BLM officials to whom they 
    report regarding the preparation, amendment and implementation of land 
    use plans. The councils would also have assisted in establishing other 
    long-range plans and resource management priorities in an advisory 
    capacity. The Department intended that this would have included 
    providing advice on the development of plans for range improvement or 
    development programs and included in the proposed amendments to 43 CFR 
    subpart 4120 a requirement for consultation with MRACs in the planning 
    of range improvement or development programs. MRACs would not have 
    provided advice on personnel management, nor would they have provided 
    advice on the allocation and expenditure of funds subsequent to budget 
    planning.
        Appointments to MRACs would have been made by the Secretary. In 
    making appointments, the Secretary would have considered nominations 
    from the Governor of the affected State and nominations received in 
    response to a public call for nominations. The Secretary would have 
    encouraged Governors to develop their nominations through an open 
    public process. In reviewing nominations submitted by the Governors, 
    the Secretary would have considered whether an open public process was 
    used. All nominations would have been required to be accompanied by 
    letters of recommendation from interests or organizations to be 
    represented that are located within the area for which a council is 
    organized.
        The Secretary would have appointed 15 members to each MRAC. Five 
    members would have been selected from persons representing commodity 
    industries, developed recreational activities, or the use of public 
    lands by off-highway vehicles; five would have been selected from 
    representatives of nationally or regionally recognized environmental or 
    resource conservation groups and wild horse and burro interest groups, 
    from representatives of archeological and historical interests, and 
    from representatives of dispersed recreational activities; and five 
    would have been selected from persons who hold State, county, or local 
    elected office, and representatives of the public-at-large, Indian 
    tribes within or adjacent to the area, natural resource or natural 
    science academia, and State agencies responsible for the management of 
    fish and wildlife, water quality, water rights, and State lands. The 
    proposed rule would have required that at least one of the members 
    appointed to each council must hold elected State, county, or local 
    office. An individual would not have been allowed to serve on more than 
    one MRAC at any given time.
        The proposed rule would have required council members to have 
    demonstrated experience or knowledge of the geographic area for which 
    the council provides advice. It would have required that all members of 
    MRACs attend a course of instruction in the management of rangeland 
    ecosystems that had been approved by BLM State Director. This 
    requirement was intended to ensure a common general understanding of 
    the resources management principles and concerns involved in management 
    of the public lands.
        The proposed rule would have provided that an official meeting of 
    an MRAC required at least three members from each of the three broad 
    categories of interests from which appointments were made. Formal 
    recommendations of the council would have required agreement by at 
    least three members of each of the three broad categories of interests 
    that attend an official meeting.
        MRACs would have had the option of requesting a Secretarial 
    response where the MRAC believed its advice had been arbitrarily 
    disregarded by the BLM manager. If requested, the Secretary would have 
    responded directly to a council's concerns within 60 days. Such a 
    request would have required agreement by all 15 members. The 
    Secretary's response would not have constituted a decision on the 
    merits of any issue that is or might become the subject of an 
    administrative appeal and would not have precluded an affected party's 
    ability to appeal a decision of the authorized officer.
        The Department received many comments on this section of the 
    proposal. Many commenters were opposed to the abolition of the grazing 
    advisory boards. Comments on the grazing advisory boards have been 
    covered above in the discussion of Sec. 1784.6-5. Many were opposed to 
    the formation of the MRACs. Others said that the proposed system was in 
    direct conflict with the requirements for BLM [[Page 9914]] to 
    coordinate with State and local government in the decisionmaking 
    process because the new system would be unwieldy and expensive. Some 
    commenters stated that the councils would not bring about significant 
    changes in the health of our public lands, but would perpetuate local 
    control of public lands.
        Other commenters were opposed to the MRACs because they said that 
    the Federal agencies were being paid to manage the public land for 
    public benefit, and they should do so. Some commenters charged that the 
    Department was trying to subordinate or eliminate its legal obligations 
    under sections of PRIA. Others stated that the public is involved in 
    range decisions through the NEPA process and so MRACs were unnecessary.
        Many commenters supported establishment of the MRACs. A typical 
    comment stated they were an improvement over the grazing advisory board 
    system. Several of the commenters who supported establishment of the 
    councils suggested they be tried on an experimental basis.
        Many commenters spoke to the make-up of the MRACs. Most of these 
    commenters stated that ranchers would be under-represented. Some 
    pointed out that the practical, ecological and managerial knowledge of 
    permittees is essential, and that therefore they should be a required 
    component. Some suggested that council membership should reflect the 
    major users of the land in each specific area.
        Some commented that it was discrimination to require 
    environmentalists to be members of national organizations. Others said 
    it was unfair to exempt the staffs of environmental organizations from 
    the residency requirements which they believed were imposed on all 
    other council members.
        Many commenters spoke to participation of government employees on 
    the councils. Some supported such participation especially by 
    representatives of State wildlife agencies. Others were opposed to 
    participation by government employees because they believed BLM would 
    coordinate with such agencies anyway, and the councils should be for 
    the government to get public input.
        Some stated that prospective members should be supported by letters 
    of recommendation from individuals and local associations of the area 
    they would represent. Others specifically were opposed to the 
    requirement for letters of recommendation. Commenters said that to 
    require letters of recommendation from ``local interests'' would 
    prevent the councils from being balanced and violates FACA. One comment 
    stated that because salmonids were so important in many areas, someone 
    on the council should be knowledgeable of salmonids.
        Other comments regarding membership addressed lending institutions, 
    academicians, Indian tribes, and other specific groups.
        Many commenters said that it was important for the MRACs to be made 
    up of people who had local interests and knowledge, and stated that all 
    members should be local. Other related comments addressed the need for 
    local expertise, a financial stake in the land, and other factors. Some 
    asserted that council members must share a primary commitment to 
    improving grazing as a land use. Some of these same commenters asserted 
    that all members should be required to demonstrate their knowledge of 
    rangeland, vegetation, and livestock management, or related areas.
        Many commenters were concerned with the process of selecting 
    members. Suggestions included that members be elected by the 
    permittees, or appointed by the county commissioners or the Governor. 
    Others objected to their being appointed by the Governor or by the 
    Secretary. Many commenters objected to self-nomination of individuals 
    to the MRACs.
        A number of commenters spoke on operation of the MRACs. Some stated 
    that no expenses should be paid. Some suggested that strict standards 
    on conduct and meetings should be developed to prevent one interest 
    from dominating. Others suggested that recommendations from the local 
    council should have some jurisdiction over the actions of the Federal 
    land management agency. Some commenters stated that the provision 
    prohibiting councils from providing advice on funding and personnel 
    matters was too restrictive. Some objected to the Secretarial appeal 
    provision. Several asked whether the MRACs would give recommendations 
    or advice, or suggested that the advisory council serve as a reviewer 
    of proposed decisions of the authorized officer. Some commenters raised 
    a concern about the development and content of the charter, and about 
    evaluation of the councils. Others were concerned about the requirement 
    for consensus because they thought it would result in a serious delay 
    in decisionmaking.
        Some commenters spoke to the jurisdiction of the MRACs and how that 
    would be determined. A number stated they should be based on BLM 
    districts or on ecoregions. Some objected to the State Director being 
    authorized to determine the area covered by a council.
        A number of commenters spoke to council size. Some stated they were 
    too large, a few thought they were too small. Some stated that the 
    basic principle should be balanced and broad representation of public 
    concerns, not a specific number. A number of specific recommendations 
    for MRAC membership and size were made.
        Numerous substantive suggestions were made for the course of study. 
    Other comments included a statement that the proposal differed in 
    several material respects from the products of the Colorado Working 
    Group. Some commenters suggested that various terms be defined 
    including ecosystem, biodiversity, environmentalist, rangeland 
    ecosystem, historical and archeological interests, direct interest, 
    dispersed recreational activities, insufficient interest, unbalanced 
    viewpoint, nationally or regionally recognized, and ecosystem 
    boundaries. Some commenters suggested that the MRAC should take no 
    actions to which the permittees or lessees involved did not agree.
        The Department's decisions to form the RACs and to abolish grazing 
    advisory boards have been discussed at Sec. 1784.6-5, as is the need 
    for greater public involvement than that provided by the grazing 
    advisory boards. General requirements of FACA, which have dictated a 
    number of the provisions adopted today, are discussed at Sec. 1784.2-1, 
    Composition. Under the requirements of FACA, members of committees 
    advising the Federal government must be appointed by the head of the 
    agency, in this case the Secretary. State and local government will be 
    included in the process through representation on the RACs, as well as 
    being consulted on numerous specific types of decisions, such as on 
    designation or adjustment of allotment boundaries (Sec. 4110.2-4), 
    increasing permitted use (Sec. 4110.3-1), implementing reductions in 
    permitted use (Sec. 4110.3-3), development of AMPs (Sec. 4120.2), and 
    other BLM decisions. See the discussions below on those sections for 
    additional information.
        The Department has concluded that the new system will be workable 
    and neither unwieldy nor excessively expensive. Obtaining input from 
    all interested parties on BLM decisions early in the process will in 
    the long run reduce objections and appeals. The Department anticipates 
    that this will not only expedite implementation of agency actions, but 
    concurrently will reduce overall rangeland management expenses by 
    making the program more efficient. For example, the Department does not 
    expect travel expenses to be [[Page 9915]] significantly greater than 
    they were for the grazing advisory boards, particularly with the 
    addition of a residency requirement. The issue of costs of advisory 
    committees is discussed further at Sec. 1784.3, Member service.
        The system will not necessarily be a multilevel structure. Under 
    the provisions adopted today, only the RACs themselves will be 
    required. The other subgroups will be discretionary. While the groups 
    will be local, in a broad sense, the Department believes that providing 
    for diverse participation through implementation of the provisions 
    adopted in this section of the final rule will ensure that all 
    interests are fairly represented. Furthermore, the requirement for 
    consensus, which is retained in the final rule, will ensure that the 
    three groups represented will have an equal say in making decisions, 
    and no one interest will be isolated by majority vote.
        The Department acknowledges that it is the responsibility of BLM to 
    manage the public grazing lands. However, several different statutes, 
    including FLPMA, PRIA, and NEPA, call for public participation in 
    decisionmaking processes regarding such programs. A purpose of these 
    RACs is to facilitate such participation, and their formation and 
    structure is fully consistent with those legal requirements. While 
    there may be some initial complications in establishing the RACs, the 
    Department believes that they are critical to long-term improvements in 
    the management of our public grazing lands. For that reason, the 
    Department has decided not to try them on only an experimental basis. 
    The Department has carefully considered the structure and functions of 
    the MRACs. In response to the concerns about under representation of 
    grazing interests, the Department agrees that, to the extent possible, 
    the make-up of the commodity group on the council should reflect the 
    distribution of commodity interests in the area represented by the 
    specific council. For example, if approximately 3/5ths of the commodity 
    interests in an area are grazing operators, 1/5th are timber 
    harvesters, and 1/5th are miners, the commodity group on the council 
    should include 3 permittees or lessees, 1 timber harvester, and 1 
    miner. Such a distribution will ensure that the necessary expertise is 
    present to deal with technical issues which might come before a council 
    representing that specific geographic area. While the Department does 
    not agree that it is necessary or desirable to specify this in the text 
    of the rule, since in some cases it may be impossible to achieve these 
    optimal numbers, the Department will strive to arrive at this outcome 
    during the appointment of council members.
        Under the rule adopted today, environmental members will not have 
    to be members of national groups. All nominees to the RACs will be 
    required to have letters of recommendation, but because the final rule 
    requires residency in one of the States within which the area to be 
    covered by the council is located, the letter need not come from a 
    local source. These requirements apply equally to all council members, 
    environmentalists as well as commodity interests. Additionally, all 
    members will be required to have some expertise or knowledge that will 
    be useful to a council's deliberations.
        The Department agrees that representatives of other Federal 
    agencies should not be members of the RACs. Other Federal agencies are 
    normally consulted about issues that affect them through other formal 
    processes and do not need to be provided access through the RAC 
    structure. However, under FACA, each council must have one ``designated 
    Federal official'' present at each meeting. State agencies are a 
    different matter. While it is true that BLM will coordinate on many 
    issues with State agencies, nevertheless the Department believes it 
    will be useful, in some cases and depending on local circumstances, to 
    include State employees on the RACs. However, in the final rule, the 
    Department has revised the discussion of the third group to limit 
    participation of State employees to representatives of State agencies 
    responsible for managing land, natural resources, or water.
        The Department believes that the requirement to have broad 
    representation from the three groups specified in this section of the 
    final rule is a reasonably specific provision. It is not feasible to 
    specify in more detail exactly what types of persons should be selected 
    to ensure such representation. That is a decision that will have to be 
    made on a case-by-case basis, depending on the nature of the population 
    in an area covered by a RAC, and on the specific types of interest 
    groups present in that area. The Secretary, based in part on 
    nominations from the Governors, will strive to ensure that each RAC is 
    fairly representative of those groups. Certainly, in many cases, tribal 
    representatives should--and will--be included on the councils. The 
    provisions of this section of the final rule allow inclusion of mining, 
    timber, and other interests. However, this section deals specifically 
    with the RACs that will be formed to provide advice on the public lands 
    grazing program, and it is not appropriate to specify requirements 
    related to the mining or timber industries here.
        The Department does not agree that lending institutions should be 
    specified as a group to be represented on all RACs. Of course, persons 
    from such institutions could serve on the councils as representatives 
    of the local public, local elected officials, or other interests listed 
    in this section of the final rule. Similarly, academicians are listed 
    as possible members because of their ability to contribute to technical 
    discussion of rangeland issues. Therefore, the Department believes it 
    is appropriate to limit membership of academicians, per se, to those 
    involved in the natural sciences. However, an academician with some 
    other specialty could participate as a member of the local public, as a 
    representative of one of the other specified groups. Academicians who 
    are not in the natural sciences are not prevented from serving on the 
    councils.
        The Department agrees that local expertise is essential to 
    effective councils. The rule adopted today requires that members of 
    RACs, rangeland resource teams and other local general purpose 
    subgroups must reside in the State, or one of the States, within the 
    jurisdiction of the council or subgroup. Additionally, the rule 
    requires demonstrated knowledge of the geographic area. The Department 
    does not agree that national environmental groups should be excluded, 
    but again, representatives of such groups should have local knowledge 
    and meet residency and other membership criteria.
        Furthermore, the Department does not agree that all members should 
    have a financial stake in the land or pay user fees. Anyone with a 
    genuine interest in the management of the public lands, and with 
    expertise to make a contribution, should be eligible to be considered 
    for council membership, so long as the person meets other membership 
    criteria.
        Similarly, the Department does not agree that council members must 
    share a primary commitment to improving grazing as a land use. While 
    clearly the councils should provide advice on improving the grazing 
    uses of the land, and grazing expertise will be an important component 
    on the councils, many other issues are legitimate concerns, including 
    non-grazing uses of the public rangelands. This is consistent with 
    BLM's responsibility to multiple resources and uses.
        Issues regarding selection of members have been discussed at 
    Sec. 1784.2-1, Composition. The Department believes that self-
    nomination is an appropriate [[Page 9916]] method of identifying 
    individuals with an interest in the management of the public lands. All 
    nominations must be accompanied by letters of reference from interests 
    or organizations to be represented. The Secretary will not be able to 
    appoint to the councils all individuals who are nominated, either by 
    themselves or by other groups. During the selection and appointment 
    process, the Department will strive to establish council membership 
    that represents the three groups in a balanced fashion, and that 
    includes only members who meet the requirements to be informed, 
    objective, knowledgeable about the local area, and committed to 
    collaborative decisionmaking.
        Issues concerning payment of per diem to council members have been 
    discussed at Sec. 1784.3, Member service.
        The Department believes that the requirements for consensus 
    decisionmaking and balanced membership will prevent one group from 
    dominating the councils. Issues such as rules of operation can be 
    handled by the individual councils after they are constituted, as long 
    as they fulfill the requirements of FACA and this rule. The councils 
    cannot legally be given jurisdiction over the actions of the Federal 
    land manager. While the Department expects that the recommendations of 
    the councils will be carefully considered by local Federal managers, 
    ultimately the Federal agency remains responsible for all decisions 
    made.
        BLM is constrained legally in many matters regarding personnel or 
    funding. The BLM could not be bound by advice from the RACs on such 
    matters. However, some funding matters clearly can be considered by the 
    councils. For example, expenditure of range improvement funds will be 
    considered. By advising the agency on priorities, the RACs may impact 
    the expenditure of other funds as well.
        The councils cannot appeal to the Secretary, but they can request 
    Secretarial response, under the provisions of Sec. 1784.6-1(i) of the 
    final rule. The Secretary's response will not constitute a decision on 
    the merits of any issue that is or might become the subject of an 
    administrative appeal and will not preclude an affected party's ability 
    to appeal a decision of the authorized officer.
        While any interested person can provide input to the charters, the 
    Department will be responsible for establishing a charter for the 
    advisory councils. These charters must be consistent with the 
    requirements of FACA, and must be reviewed by the General Services 
    Administration and approved by the Office of Management and Budget. 
    Definition of the groups to be represented on each council in the 
    charters must be consistent with the requirements of Sec. 1784.6-1(c). 
    Specific operating procedures for each council can be developed by that 
    council and incorporated into a set of bylaws or other operational 
    instrument. Development of the charter and issues of the councils 
    giving advice or recommendations are also discussed above in 
    Sec. 1784.2-1, Composition. The Department rejects the suggestion that 
    permittees not be bound by the recommendations of the councils unless 
    they agree in writing. The councils will provide recommendations to 
    BLM, not directly to the permittees. Furthermore, the councils provide 
    only advice. They do not make decisions. It is the statutory 
    responsibility of BLM, through the authorized officer, to make final 
    decisions regarding the management of the public rangelands. Permittees 
    and lessees will be bound to follow those decisions, subject to the 
    administrative remedies provisions in subpart 4160.
        The Department understands that it may in some cases be difficult 
    to achieve consensus, and that the development of consensus may be a 
    time-consuming process. However, consensus decisionmaking is at the 
    heart of improving the grazing management program. The Department is 
    committed to the concept that all groups should work together to 
    develop recommendations regarding the management of the public 
    rangelands. Decisions reached in this way will be owned by all parties 
    involved, and there will be significantly less likelihood of appeals 
    and disputes, and greater likelihood that effective actions will be 
    identified and implemented. In the long run, the Department believes 
    that consensus-based decisionmaking will actually shorten the time 
    required to reach a decision and implement it on the ground.
        In response to the comments on jurisdiction, the Department has 
    decided to allow considerable flexibility in the area covered by any 
    one RAC. To that end, and to provide flexibility in other aspects of 
    the RACs so they can be constituted to suit local needs, the Department 
    has incorporated into this final rule provisions allowing adoption of 
    any one of three models. Those models allow RACs to be formed on the 
    basis of State boundaries, BLM districts, or ecoregions. The boundary 
    of the RACs will be determined by the State Director, in consultation 
    with the Governor and other interested parties.
        Size and composition of the councils are discussed at Sec. 1784.2-
    1, Composition. Additionally, the Department notes that one of the 
    purposes of the RACs is to fulfill the requirements of section 309(a) 
    of FLPMA, which requires the Department to form councils of 10 to 15 
    members. Furthermore, FACA requires that councils advising the Federal 
    government have a balanced membership made up of all groups having an 
    interest in the issue on which the council provides advice. The 
    provisions for membership included in the rule adopted today at this 
    section will ensure implementation of those statutory requirements.
        The Department agrees that input from the Governor is critical to 
    the success of the councils. However, under the provisions of FACA, the 
    Secretary must appoint the members of the councils. The Secretary will 
    carefully consider nominees sent forward by the Governors. Furthermore, 
    discussions between the State Director and the Governor will be 
    important in determining whether councils will be set up on a State, 
    District, or ecoregion basis. The Department will develop a course of 
    study to ensure that council members are fully qualified to make 
    recommendations to BLM concerning grazing management issues.
        The RAC provisions as proposed differed in some ways from the 
    Colorado model. While they were based to a considerable extent on that 
    model, certain statutory requirements, including the provision in FACA 
    that council members be appointed by the agency head, in this case the 
    Secretary, dictated that some provisions of the Colorado model be 
    revised. This final rule adopts three RAC models, one of which, Model 
    A, is based largely on the Colorado model. Again, however, certain 
    changes had to be made to accommodate legal requirements and the goals 
    of this public rangelands management program.
        Many of the terms for which commenters requested definitions have 
    been discussed in the FEIS. Direct interest is discussed at 
    Sec. 1784.2-2, Avoidance of conflict of interest. ``Dispersed 
    recreational activities'' is a term used by BLM to refer to recreation 
    that takes place outside of developed recreational areas. Birding, 
    hiking and hunting are dispersed recreational activities. Definition of 
    the term is outside the scope of these grazing regulations.
        The Department has corrected any confusion resulting from the 
    proposed rule's use of the terms council, board, and committee. This is 
    discussed at Sec. 1784.2-1. [[Page 9917]] 
        Many of the commenters' concerns and suggestions could not be 
    reconciled within the framework of the specific proposal made on March 
    25, 1994. In order to be more responsive to those concerns, the 
    Department has made a number of changes from the proposal in this final 
    rule.
        The section is retitled, to indicate that it now specifies those 
    elements of advisory councils which will be required to implement 
    provisions of FACA, FLPMA, or the goals of improving the rangeland 
    management program. Optional features are provided at final 
    Sec. 1784.6-2. The word ``multiple'' is eliminated throughout the 
    section.
        Most significantly, the Department has dropped much of the detail 
    regarding RAC requirements from this section of the final rule, and has 
    substituted language that allows a more flexible structure. Coupled 
    with the provisions adopted in final Sec. 1784.6-2 this will allow a 
    model for public participation to be selected for each State that best 
    suits the State's own needs.
        Many of the wording changes in the final rule are consistent with 
    the goal of introducing flexibility. References to rangeland resource 
    teams and technical review teams have been replaced with ``subgroups.'' 
    Provisions in paragraph (a) that would have been specific to District 
    based councils have been eliminated, since this final rule allows 
    councils to be formed along State, District, or ecoregion boundaries.
        Provisions in paragraph (c) regarding membership have been changed 
    to eliminate specific numbers of members, since these can vary under 
    the provisions of final Sec. 1784.6-2. The language regarding the 
    membership of a local official is adjusted to conform to FLPMA. A 
    provision is added requiring that council members must reside within 
    one of the States within the geographic jurisdiction of the council. 
    This wording was selected to accommodate those cases where ecoregion-
    based councils may cover an area in more than one State. Provisions 
    regarding membership of State employees have been consolidated for 
    clarity. Other minor revisions have been made in this section for 
    clarity.
        Final paragraph (e) is modified from the proposal to specify that 
    the letters of recommendation required of nominees to the councils do 
    not have to be from a locally based group. Since the Department has 
    decided to introduce a residency requirement, as discussed above, there 
    is no need to require that letters of nomination also be local.
        Provisions in proposed paragraph (h) regarding quorums and voting 
    requirements have been revised consistent with the flexible models of 
    public participation adopted today. Rather than numbers of members 
    being specified, the final provision requires that council charters all 
    contain rules defining a quorum and establishing procedures for sending 
    recommendations forward to BLM, and that such recommendations require 
    agreement of at least a majority of the members of the three groups 
    defined in paragraph (c). This establishes a minimum requirement. Each 
    council's charter could require higher levels of agreement.
        Taken together, the Department believes the provisions adopted 
    today fulfill the goal of broadening the base of public participation 
    in rangeland management decisions, while ensuring that advice provided 
    to the Department represents the views of a council which is balanced 
    in its membership, knowledgeable about the land and issues, and 
    committed to consensus decisionmaking.
    Section 1784.6-2  Resource Advisory Councils--Optional Features
        The proposed section would have provided for the formation of 
    rangeland resource teams by an MRAC on its own motion or in response to 
    a petition by local citizens. Rangeland resource teams would have been 
    formed for the purpose of providing local level input and serving as 
    fact-finding teams for issues pertaining to grazing administration 
    issues within the area for which the rangeland resource team is formed. 
    They would not have provided advice directly to the Federal land 
    manager.
        Rangeland resource teams would have consisted of five members 
    selected by the MRAC, including two permittees or lessees, one person 
    representing the public-at-large, one person representing a nationally 
    or regionally recognized environmental organization, and one person 
    representing national, regional, or local wildlife or recreation 
    interests. Members representing grazing permittees or lessees and the 
    local public-at-large would have been required to have resided within 
    the area for which the team would have provided advice for at least two 
    years prior to their selection. The proposed rule would have required 
    that at least one member of the rangeland resource team be selected 
    from the membership of the parent MRAC.
        Rangeland resource team members would have had to be qualified by 
    virtue of their knowledge or experience of the lands, resources, and 
    communities that fall within the area for which the team is formed. All 
    nominations for membership would have required letters of 
    recommendation from the local interests to be represented. The 
    membership provisions were intended to ensure that rangeland resource 
    teams were able to represent key stakeholders and interests in 
    providing input to the more broadly organized MRACs.
        The proposed rule would have required that all members of rangeland 
    resource teams attend a course of instruction in the management of 
    rangeland ecosystems that had been approved by BLM State Director. The 
    Colorado Working Group developed a proposal for a ``Range Ecosystem 
    Awareness Program'' that would have established a basic curriculum 
    including basic rangeland ecology, human resource development, the 
    relationship of public land resources to private lands and communities, 
    and the pertinent laws and regulations affecting rangeland management.
        Rangeland resource teams would have had opportunities to raise any 
    matter of concern with the MRAC and to request that the MRAC form a 
    technical review team, as described below, to provide information and 
    options to the council for their consideration.
        Although no specific provision was made in the proposed rule, 
    rangeland resource teams could have petitioned the Secretary for 
    chartered advisory committee status. Chartered rangeland resource teams 
    would have been subject to the general provisions of 43 CFR part 1780 
    and the provisions of the charter prepared pursuant to FACA.
        Many of the commenters on this section opposed the formation of 
    rangeland resource teams. Many reasons were given for this opposition.
        Some asserted that both rangeland resource teams and the technical 
    review teams would be subject to FACA, unless they could be sequestered 
    from BLM. A commenter suggested requiring that the subgroups be fairly 
    balanced. Others opposed any requirement for members to be local 
    residents.
        Some other commenters stated that the teams violate the requirement 
    of Section 8 of PRIA to consult, coordinate, and cooperate. Many of the 
    same commenters asserted that the Department cannot change the groups 
    targeted by Section 8. Some commenters stated that the teams were not 
    needed, would not be effective, would be costly, or would slow the 
    planning and implementation process.
        Some were concerned about how the teams would be formed. Some 
    stated that they should be created by and report to BLM; others 
    suggested that the [[Page 9918]] interested public should be able to 
    request BLM to form a team; still others said they should be formed by 
    the RACs. Others suggested that the regulations should be flexible 
    enough to let these teams consider issues other than grazing.
        A number of commenters spoke to the make-up of the rangeland 
    resource teams. Many supported a local residency requirement for all 
    members, others opposed the emphasis on local residency. Many stated 
    that all members should have a high level of expertise in rangeland 
    issues.
        Many different specific suggestions about team make-up were 
    received. Others were concerned that these teams be formed for a 
    limited time, so that they would not be too expensive or perpetuate 
    themselves. A number of specific comments were made on the content of 
    courses to be offered to team members. Another asked how rangeland 
    resource teams would bring on-going consensus efforts like the Trout 
    Creek Work Group ``closer to the process.''
        Many of the above concerns about rangeland resource teams have been 
    addressed in the foregoing discussion of Sec. 1784.6-1. As noted there, 
    the Department has decided to make significant changes from the 
    proposal in this final rule.
        The Department has not adopted the suggestions on the makeup and 
    structure of the teams, and has decided to retain the original 
    proposal. However, as discussed below, the final rule will accommodate 
    other models of public participation. If the rangeland resource team 
    structure does not suit local conditions, a different model can be 
    chosen. Similarly, groups such as the Trout Creek Work Group can be 
    incorporated into the process through the use of another model which 
    allows the inclusion of groups of different sizes.
        Rangeland resource teams or other subgroups serving similar 
    functions will now be optional features under the required RACs. The 
    final rule does not provide for chartering of any subgroups under FACA, 
    and such subgroups will not advise BLM directly, but will provide 
    assistance to the chartered council to improve its ability to function 
    effectively. All special purpose, short term groups will be formed 
    exclusively by BLM and will be made up of Federal employees, whether 
    regular staff or contract employees. Regarding residency requirements, 
    the Department in the final rule at Sec. 1784.6-1 has decided to 
    require that all RAC members and members of general purpose local 
    subgroups must be residents of one of the States in which the area 
    covered by the specific council is located. The Department believes 
    this structure both assures compliance with FACA and encourages local 
    level participation in the decision-making process.
        The development of the training course is discussed at Sec. 1784.6-
    1.
        This section, which in the proposal was exclusively about rangeland 
    resource teams, now presents three alternate models for public 
    participation, any of which can be chosen by a State Director, in 
    consultation with a Governor and other interested persons. Each model 
    provides specific details about four attributes of the councils: 
    council jurisdiction, membership, quorum and voting requirements, and 
    subgroups.
        Model A is based on the work of the Colorado Working Group on 
    rangeland improvement. It has the following characteristics:
        (i) Council jurisdiction. The geographic jurisdiction of a council 
    will coincide with BLM District or ecoregion boundaries. The Governor 
    of the affected State(s) or existing RACs may petition the Secretary to 
    establish a RAC for a specified BLM resource area.
        (ii) Membership. Each council will have 15 members, distributed 
    equally among the three groups specified in Sec. 1784.6-1(c).
        (iii) Quorum and voting requirements. At least three council 
    members from each of the three groups from which appointments are made 
    pursuant to Sec. 1784.6-1(c) must be present to constitute an official 
    meeting of the council.
        (iv) Subgroups. Local rangeland resource teams may be formed within 
    the geographical area for which a RAC provides advice, down to the 
    level of a single allotment. These local teams will provide local level 
    input to the advisory council. These teams may be formed under the 
    auspices of a RAC on its own motion or in response to a petition by 
    local citizens. Rangeland resource teams will be formed for the purpose 
    of providing local level input to the RAC on issues pertaining to 
    grazing administration within the area for which the rangeland resource 
    team is formed. Rangeland resource teams will consist of five members 
    selected by the RAC. Membership will include two persons holding 
    Federal grazing permits or leases, one person representing the public-
    at-large, one person representing a nationally or regionally recognized 
    environmental organization, and one person representing national, 
    regional, or local wildlife or recreation interests. Persons selected 
    by the council to represent the public-at-large, environmental, and 
    wildlife or recreation interests may not hold Federal grazing permits 
    or leases. At least one member must be selected from the membership of 
    the RAC. Members of the rangeland resource teams must be residents of 
    the State in which the area covered by the team's jurisdiction is 
    located.
        The RAC will be required to select rangeland resource team members 
    from nominees who qualify by virtue of their knowledge or experience of 
    the lands, resources, and communities that fall within the area for 
    which the team is formed. All nominations must be accompanied by 
    letters of recommendation from the groups or interests to be 
    represented.
        All members of rangeland resource teams will attend a course of 
    instruction in the management of rangeland ecosystems that has been 
    approved by BLM State Director. Rangeland resource teams will have 
    opportunities to raise any matter of concern with the RAC and to 
    request that BLM form a technical review team, as described below, to 
    provide information and options to the council for their consideration.
        Technical review teams can be formed by the BLM authorized officer 
    on the motion of BLM or in response to a request by the RAC or a 
    rangeland resource team to gather and analyze data and develop 
    recommendations to aid the decisionmaking process. Membership will be 
    limited to Federal employees and paid consultants. Members will be 
    selected based upon their knowledge of resource management or their 
    familiarity with the specific issues for which the technical review 
    team has been formed. Technical review teams will terminate upon 
    completion of the assigned task.
        Model B is based on the work of the Wyoming Steering Committee on 
    the Management of Federal Lands. It has the following characteristics:
        (i) Council jurisdiction. The jurisdiction of the council shall be 
    Statewide, or on an ecoregion basis. The council will promote Federal, 
    State, and local cooperation in the management of natural resources on 
    public lands, and coordinate the development of sound resource 
    management plans and activities with other States. It will provide an 
    opportunity for meaningful public participation in land management 
    decisions at the State level and will foster conflict resolution 
    through open dialogue and collaboration.
        (ii) Membership. The council will have 15 members, distributed 
    equally among the three groups specified in Sec. 1784.6-1(c) above, and 
    will include at [[Page 9919]] least one representative from wildlife 
    interest groups, grazing interests, minerals and energy interests, and 
    established environmental/conservation interests. The Governor will 
    chair the council.
        (iii) Quorum and voting requirements. The charter of the council 
    will specify that 80% or 12 members must be present to constitute a 
    quorum and conduct official business, and that 80% or 12 members of the 
    council must vote affirmatively to refer an issue to BLM. Formal 
    recommendations require agreement of at least three council members 
    from each of the three groups.
        (iv) Subgroups. Local rangeland resource teams can be formed under 
    the auspices of the Statewide council, down to the level of a 4th order 
    watershed. These local teams will provide local level input to the 
    advisory council. They will meet at least quarterly and will promote a 
    decentralized administrative approach, encourage good stewardship, 
    emphasize coordination and cooperation among agencies, permittees and 
    the interested public, develop proposed solutions and management plans 
    for local resources on public lands, promote renewable rangeland 
    resource values, develop proposed standards to address sustainable 
    resource uses and rangeland health, address renewable rangeland 
    resource values, propose and participate in the development of area-
    specific National Environmental Policy Act documents, and develop range 
    and wildlife education and training programs. As with the RAC, an 80% 
    affirmative vote will be required to send a recommendation to BLM.
        Rangeland resource teams will not exceed 10 members and will 
    include at least two persons from environmental or wildlife groups, two 
    grazing permittees, one elected official, one game and fish district 
    representative, two members of the public or other interest groups, and 
    a Federal officer from BLM. Members will be appointed for two-year 
    terms by the RAC and may be reappointed. No member may serve on more 
    than one rangeland resource team.
        In addition, technical review teams can be established on an as-
    needed basis by the BLM authorized officer in response to a request by 
    a RAC or rangeland resource team, in response to a petition of local 
    citizens, or on BLM's own motion. These teams will address specific 
    unresolved technical issues. When the team is requested by the RAC or a 
    rangeland resource team, its charge will be established jointly by BLM 
    and the council; membership will be determined by BLM and will be 
    limited to Federal employees and paid consultants. Technical review 
    teams will be limited to tasks relating to fact-finding within the 
    geographic area and scope of management actions for which the rangeland 
    resource team or RAC provides advice. Technical review teams will 
    terminate upon completion of the assigned task.
        Model C was developed by BLM to accommodate other structures of 
    public participation, consistent with the requirements of FACA, FLPMA, 
    and the goals of this rangeland management program. It has the 
    following characteristics:
        (i) Council jurisdiction. The jurisdiction of the council shall be 
    on the basis of ecoregion, State, or BLM district boundaries.
        (ii) Membership. Membership of the council will be 10 to 15 
    members, distributed in a balanced fashion among the three groups 
    defined in Sec. 1784.6-1(c).
        (iii) Quorum and voting requirements. The charter of each council 
    shall specify that a majority of each group must be present to 
    constitute a quorum and conduct official business, and that a majority 
    of each group must vote affirmatively to refer an issue to BLM Federal 
    officer.
        (iv) Subgroups. RACs may form local rangeland resource teams to 
    obtain general local level input necessary to the successful 
    functioning of the RAC. Such subgroups can be formed in response to a 
    petition from local citizens or on the motion of the RAC. Membership in 
    any subgroup formed for the purpose of providing general advice to the 
    RAC on grazing administration should be constituted in accordance with 
    provisions for membership in Sec. 1784.6-1(c). Additionally, BLM may 
    form technical review teams as needed to gather and analyze data and 
    develop recommendations to aid the council. These teams may be formed 
    at BLM's own option or in response to a request from the advisory 
    council.
        The Department believes that the above three models for public 
    participation can be adapted to satisfy the concerns and needs of all 
    areas which include public lands or other lands administered by BLM.
    Section 1784.6-3  Technical Review Teams
        Under the proposed rule an MRAC could have established technical 
    review teams, as needed, in response to a petition of an involved 
    rangeland resource team or on its own motion. Rangeland resource teams 
    chartered under FACA could also have established technical review 
    teams. Technical review teams would have conducted fact finding and 
    provided input to the parent advisory council or chartered rangeland 
    resource team. Their function would have been limited to specific 
    assignments made by the parent council, and been limited to the 
    geographical management scope of the MRAC or chartered rangeland 
    resource team. Technical review teams would have terminated upon 
    completion of the assigned task.
        Members of technical review teams would have been selected by the 
    MRAC or chartered rangeland resource team on the basis of their 
    knowledge of resource management or their familiarity with the issues 
    involved in the assigned task. At least one member of each technical 
    review team would have been required to be selected from the membership 
    of the parent advisory council or chartered rangeland resource team.
        Some of the commenters on this section specifically opposed the 
    concept of technical review teams, saying they would not streamline 
    administrative functions, were not needed, would be obstacles to 
    change, and would be expensive. Other commenters asserted that any such 
    teams should be formed by BLM under the provisions of FACA. A number of 
    commenters wrote to the make-up and operation of the teams, and 
    asserted that members must be technical experts and should be local 
    residents.
        Most of the commenters' concerns about technical review teams have 
    been addressed in the discussions of Secs. 1784.6-1 and 6-2. In 
    response to commenters' concerns, the Department has decided to require 
    that any such technical team be formed exclusively by BLM. Because of 
    the requirements of FACA, they will be made up exclusively of Federal 
    employees, either regular staff or contract employees. Such technical 
    teams could be formed under any of the three models presented in 
    Sec. 1784.6-2, either at the request of a chartered committee or on 
    BLM's own motion. The Department believes this is the best way to 
    ensure that the requirements of FACA are fulfilled, but that the RACs 
    have available to them special expertise to address technical issues 
    when needed.
        Consistent with the above discussion, and the discussions of final 
    Secs. 1784.6-1 and 6-2, the Department is not adopting this provision 
    in the final rule. Provisions allowing the formation of technical teams 
    by BLM, as needed, are found in final Sec. 1784.6-2. [[Page 9920]] 
    
    Part 4100--Grazing Administration--Exclusive of Alaska
    
    Subpart 4100--Grazing Administration--Exclusive of Alaska; General
    Section 4100.0-2  Objectives
        The proposed rule would have amended the objectives statement for 
    part 4100 by including as objectives the preservation of public land 
    and resources from destruction and unnecessary injury, the enhancement 
    of productivity for multiple use purposes, the maintenance of open 
    spaces and integral ecosystems, and stabilization of the western 
    livestock industry and dependent communities.
        The Department received many comments on this section. Many 
    commenters said that the proposed objectives statement was vague, 
    subjective, not achievable, and unmeasurable. Others said that it was 
    antagonistic, and assumed that ranching operations are destructive. 
    Some asserted the statement ignored the valuable contribution made by 
    livestock grazing as well as the improvements ranchers had made on the 
    Federal lands. Some pointed out that proper grazing does not harm the 
    resources.
        Many commenters suggested additions to the list of objectives of 
    the rules. Many of these commenters supported using the objectives 
    identified by the Colorado Working Group. It was suggested that the 
    objectives should have a greater emphasis on ecosystem management, and 
    should include standards and guidelines pertinent to the economic and 
    social factors which affect the human environment.
        Many commenters objected to the terms ``destruction and unnecessary 
    injury.'' This objective had been included to highlight the 
    Department's responsibility under Section 315a of TGA which requires 
    the Department to ``preserve the land and its resources from 
    destruction or unnecessary injury.'' Others asserted that the view that 
    ecosystems are static and can be ``preserved'' was out of date. Many 
    commenters spoke to the objective of maintaining the public values 
    associated with open spaces and integral ecosystems, asserting that 
    this was not an appropriate objective for grazing regulations.
        A number of commenters spoke on the objective concerning 
    stabilization of the livestock industry and dependent communities. A 
    typical comment asserted that small ranches are often dependent on 
    second jobs in town, and that actually the ranches are dependent on the 
    communities, not vice versa. Some suggested deleting ``dependent 
    communities.'' Some commenters took strong exception to this particular 
    objective. They asserted that the Department was, with this objective, 
    singling out the livestock industry for favored treatment.
        Regarding the objective on enhancing productivity for multiple use 
    purposes, commenters offered suggestions that enhancement for multiple 
    uses should not be allowed to conflict with grazing and that enhancing 
    for multiple use purposes must be subject to maintaining a healthy 
    ecosystem.
        Many commenters were concerned with the references to 
    ``ecosystems'' and asked for a definition of the term. Some asked for a 
    definition of ``integral ecosystem'' while others were concerned that 
    the term would be used to regulate private lands.
        This final section is substantially revised from the objectives 
    presented in the proposed rule. The provision as adopted today includes 
    the following objectives: to promote healthy sustainable rangeland 
    ecosystems; to accelerate restoration and improvement of public 
    rangelands to properly functioning conditions; to promote orderly use, 
    improvement and development of the public rangelands, to establish 
    efficient and effective administration of grazing of public rangelands; 
    and to provide for a sustainable western livestock industry and 
    communities that are dependent upon productive, healthy public 
    rangelands.
        The new statements are based largely on commenters' concerns. While 
    all those concerns could not be accommodated, the Department believes 
    that the final rule represents the best summary of the objectives of 
    this rangeland management program.
        The first objective, to promote healthy sustainable rangelands, is 
    the key component of the Department's program. The statement is based 
    on the work of the Colorado Working Group and responds to the 
    Department's and some commenters' concerns that the objectives should 
    clearly state the objective of achieving healthy, functional 
    rangelands. It reflects the Department's intent to make decisions 
    regarding grazing on the public lands that will promote healthy 
    conditions across all the grazing lands. This embodies the concept that 
    such decisions must be made on a coordinated basis and must consider 
    other resource values that contribute to the health of the land.
        The second objective, to accelerate restoration and improvement of 
    public rangelands to properly functioning conditions, embodies the 
    concept that BLM, in order to fulfill its statutory responsibilities to 
    the public rangelands, must renew its efforts to restore those areas 
    that are not functioning properly. It emphasizes that attainment of 
    healthy conditions is a process that requires constant effort; West-
    wide healthy conditions cannot be attained overnight.
        The third objective, to promote orderly use, improvement and 
    development of the public rangelands, is unchanged from the proposal. 
    It is drawn directly from TGA (43 U.S.C. 315(a)). It emphasizes that 
    the rangelands are to be used and developed, but also that such use and 
    development must be done in an orderly way, and that an integral part 
    of the process should be improvement of the rangelands.
        The fourth objective, to establish efficient and effective 
    administration of grazing of public rangelands, is based on the work of 
    the Colorado Working Group. The statement emphasizes that BLM's 
    administration of its program must be both efficient and effective. The 
    rules adopted by today's action are an important part of the 
    Department's efforts to ensure that objective can be achieved.
        The final objective, to provide for a sustainable western livestock 
    industry and communities that are dependent upon productive, healthy 
    public rangelands, is a modified version of an objective included in 
    the proposal. It asserts that BLM has a responsibility to recognize the 
    effects its actions may have on the western livestock industry. 
    However, the Department has reworded this objective from the proposal 
    because it agrees with commenters' concerns that BLM's program, in and 
    of itself, cannot ``stabilize the western livestock industry.''
        Largely as a result of public comment, the Department has decided 
    not to adopt the proposed objectives concerning preservation of 
    rangeland resources from destruction and unnecessary injury; 
    maintenance of the public values provided by open spaces and integral 
    ecosystems; and enhancement of the productivity of public lands for 
    multiple use purposes by prevention overgrazing and soil deterioration. 
    These themes of the proposed amendments are sufficiently covered in the 
    more general objectives adopted in this final rule. The objective of 
    the previous regulations pertaining to providing for the inventory and 
    categorization, trends and monitoring of public lands on the basis of 
    range conditions, is omitted as an unnecessary [[Page 9921]] statement 
    of BLM's internal working procedures.
        In accordance with the above discussion, the Department has adopted 
    the objectives statement as amended.
    Section 4100.0-5  Definitions
        The proposal would have removed definitions of ``Affected 
    interests,'' ``Grazing preference,'' and ``Subleasing.'' It would have 
    amended definitions of ``Active use,'' ``Actual use,'' ``AMP,'' 
    ``Consultation, cooperation and coordination,'' ``Grazing lease,'' 
    ``Grazing permit,'' ``Land use plan,'' ``Range improvement,'' 
    ``Suspension,'' and ``Utilization''; and would have added in 
    alphabetical order definitions of ``Activity plan,'' ``Affiliate,'' 
    ``Conservation use,'' ``Grazing preference or preference,'' 
    ``Interested public,'' ``Permitted use,'' ``Temporary nonuse,'' and 
    ``Unauthorized leasing and subleasing.'' This final rule adds 
    definitions ``Annual rangelands,'' and ``Ephemeral rangelands.''
        The final rule makes changes to the proposed definitions of 
    ``affiliate'' and ``consultation, cooperation and coordination.'' It 
    makes minor technical and clarifying changes to the proposed 
    definitions of ``conservation use,'' ``grazing lease,'' ``grazing 
    permit,'' ``land use plan,'' ``range improvement,'' ``unauthorized 
    leasing and subleasing,'' and ``utilization.'' It adds definitions of 
    ``annual rangelands'' and ``ephemeral rangeland.'' Otherwise, the 
    definitions are adopted as proposed.
        The following specific actions are taken by this final rule.
        Active use is redefined to include conservation use and exclude 
    temporary nonuse or suspended use.
        A definition of Activity plan is added to mean a plan for managing 
    a use, or resource value or use. An AMP is one form of an activity 
    plan.
        Actual use is redefined to clarify that the term may refer to all 
    or just a portion (e.g., a pasture) of a grazing allotment.
        A new definition of Affiliate is added for use in determining 
    whether applicants have satisfactory records of performance for 
    receiving permits or leases or in receiving additional forage that 
    becomes available for allocation to livestock grazing.
        Allotment Management Plan is redefined to describe more clearly the 
    focus and purpose of the plan, and to make clear that an AMP is a form 
    of activity plan.
        A definition of Annual rangelands is added to mean those areas 
    which are occupied primarily by annual plants and which are available 
    for livestock grazing during some years.
        A definition of Conservation use is added to mean an activity on 
    all or a portion of an allotment for the purpose of protecting the land 
    and its resources from destruction or unnecessary injury. The term 
    includes improving rangeland conditions and the enhancement of resource 
    values or functions.
        Consultation, cooperation and coordination is redefined to mean a 
    process for communication between representatives of BLM and the 
    parties involved for the purpose of sharing information, obtaining 
    advice, and exchanging opinions.
        A definition of Ephemeral rangeland is added to mean areas of the 
    Hot Desert Biome (Region) that do not consistently produce enough 
    forage to sustain a livestock operation but may briefly produce unusual 
    volumes of forage to accommodate livestock grazing. Typically, these 
    rangelands receive less than eight inches of rainfall each year and lie 
    below 3,200 feet elevation.
        Grazing lease and Grazing permit are redefined to clarify what 
    forms of use are authorized in leases and permits and to clarify that 
    the documents specify a total number of AUMs apportioned, the area 
    authorized for grazing use, or both.
        Grazing preference is redefined to mean the priority to have a 
    Federal permit or lease for a public land grazing allotment that is 
    attached to base property owned or controlled by a permittee, lessee, 
    or applicant. The definition omits reference to a specified quantity of 
    forage, a practice that was adopted by the former Grazing Service 
    during the adjudication of grazing privileges. Like the Forest Service, 
    BLM will identify the amount of grazing use (AUMs), consistent with 
    land use plans, in grazing use authorizations to be issued under a 
    lease or permit.
        A definition of Interested public is added to mean an individual, 
    group or organization that has submitted written comments to the 
    authorized officer regarding the management of livestock grazing on 
    specific grazing allotments.
        Land use plan is redefined to remove the implication that all 
    management framework plans will be replaced by resource management 
    plans.
        A definition of Permitted use is added to define the amount of 
    forage in an allotment that is allocated for livestock grazing and 
    authorized for use, or included as suspended nonuse, under a grazing 
    permit or lease. The term replaces the AUMs of forage use previously 
    associated with grazing preference.
        Range improvement is redefined to include protection and 
    improvement of rangeland ecosystems as a purpose of range improvements.
        Suspension is redefined to reflect the revision of the definition 
    of the term ``preference.'' Within this definition the term 
    ``preference'' is replaced with ``permitted use.''
        A definition of Temporary nonuse is added to refer to permitted use 
    that may be temporarily made unavailable for livestock use in response 
    to a request by the permittee or lessee.
        A definition of Unauthorized leasing and subleasing is added to 
    mean the lease or sublease of a Federal grazing permit, associated with 
    the lease or sublease of base property, to another party, without 
    approval of the authorized officer, the assignment of public land 
    grazing privileges to another party without the assignment of the 
    associated base property, or allowing another party to graze livestock 
    that are not owned or controlled by the permittee or lessee on the 
    permittee's or lessee's public land grazing allotment. This changes the 
    existing definition which could be read to imply that no forms of third 
    party lease arrangements could be authorized.
        Utilization is redefined to mean the consumption of forage by all 
    animals consistent with the definitions in BLM Technical Reference 
    4400-3 and the Bureau Manual System for Inventory and Monitoring.
        The Department received many comments on this section. Some 
    commenters wanted original definitions left unchanged; others suggested 
    further revisions, still others asked that additional new definitions 
    be added.
        Many comments were received on the definitions of active use, 
    actual use, conservation use, grazing preference or preference, 
    permitted use, suspension, and temporary nonuse. A number of commenters 
    expressed uncertainty regarding the concept of conservation use, some 
    objecting to the inclusion of conservation use as an active use. Others 
    indicated that the concept of conservation use may be inconsistent with 
    the policy objectives articulated in various statutes.
        Other concerns with the concept were that it implied that grazing 
    is harmful to the range, and that permittees applying for conservation 
    use should pay the grazing fee and be required to maintain 
    improvements. These and other comments on conservation use are more 
    appropriately addressed in the discussion of Sec. 4130.2.
        The Department intends that conservation use be an active use 
    rather than merely a non-use. Conservation use is intended to protect 
    the land and its resources from destruction, improve rangeland 
    conditions, or enhance resource values. All of these goals are 
    [[Page 9922]] fully consistent with the requirements of governing 
    statutes. In fact, conservation use includes a variety of activities to 
    improve rangeland conditions. Because the land and the forage involved 
    are actively being devoted to accomplishing specific conservation-
    oriented objectives, they are deemed actively used. The concept of 
    conservation use, and its application to this program, are discussed 
    more fully at Sec. 4130.2.
        In general, commenters expressed some confusion regarding 
    application of the concepts of suspension and temporary non-use under 
    the proposed definitions of these terms. In particular, some commenters 
    were concerned that the definitions might be used by BLM to restrict 
    active use.
        Temporary nonuse and suspension remain options under the rule 
    finalized today. Temporary nonuse is for the convenience of a 
    permittee's or lessee's livestock operation and must be included as a 
    part of his or her application each year. Therefore, BLM does not 
    believe temporary nonuse should be considered active use. The BLM will 
    authorize changes in temporary nonuse from year to year, but temporary 
    nonuse may only be approved by the authorized officer for up to three 
    consecutive years. With regard to changes in use initiated by the 
    permittee or lessee, the concept of temporary nonuse is expected to 
    continue as the common practice used to respond to fluctuations in the 
    weather, the livestock market or other factors beyond the control of 
    the operator.
        Suspension of grazing use is initiated by the authorized officer, 
    and may be agreed to by the permittee or be the result of a decision by 
    the authorized officer. It results, for example, from situations 
    requiring a reduction of use of the rangeland to protect the resource 
    or where there has been noncompliance. See also the discussions of 
    subparts 4110 and 4130.
        Regarding active use, BLM intends to continue allowing changes in 
    active use from year to year, depending on conditions. The authorized 
    officer can adjust active use and other factors under a permit or lease 
    as long as the changes are within the terms and conditions of the 
    permit or lease. If the authorized officer determines that changes in 
    use must be made outside the terms and conditions, it will be done in 
    consultation with the permittee or lessee, the State and other 
    interested parties.
        Numerous comments were received on proposed changes to the 
    definition of ``grazing preference,'' including the addition of the 
    term ``preference.'' Many commenters interpreted the proposed changes 
    to mean that preference was being abolished. Others were concerned that 
    unless preference refers to a specified quantity of forage, ranching 
    operations would be negatively impacted. They stated that preference, 
    tied to a specific amount of AUMs, adds value and stability to ranching 
    operations, for example, by enhancing the operator's ability to borrow 
    money. They also maintained that a preference is a property right and 
    that the proposed rule could result in a ``taking.'' And some 
    commenters expressed the view that the proposed definition excluded 
    owners of water or water rights and that such owners deserve priority 
    consideration.
        The Department has changed ``grazing preference'' to preference or 
    grazing preference because the terms are used interchangeably and to 
    clarify that the term refers only to a person's priority to receive a 
    permit or lease, and not to a specific number of AUMs. The term 
    ``preference'' was used during the process of adjudication of available 
    forage following the passage of TGA to establish an applicant's 
    relative standing for the award of a grazing privilege. At one time in 
    the evolution of grazing administration preference was the amount of 
    use expressed in AUMs that any particular permittee may have made 
    during the ``priority period''--the four years following passage of 
    TGA. Preference is still defined as the relative standing of an 
    applicant as reflected in historic records. Through time, common usage 
    of the term evolved to mean the number of AUMs attached to particular 
    base properties. But this usage dilutes the original statutory intent 
    of the term as an indication of relative standing. The term ``permitted 
    use'' captures the concept of total AUMs attached to particular base 
    properties, and use of this term does not cancel preference. The change 
    is merely a clarification of terminology. Issues of valuation of 
    permits are discussed in more detail in the FEIS, and takings are 
    discussed under ``Takings'' in the General Comments section of this 
    preamble.
        With regard to owners of water or water rights, the evolution of 
    the term preference was similar. The status of waters and water rights 
    that have been recognized as base property would not be affected by the 
    rules adopted today. Waters recognized as base property would continue 
    to qualify as such. The preference for receiving a grazing permit or 
    lease that is attached to base property would not be affected. The 
    Department believes that permitted use is the more appropriate term to 
    describe and quantify the number of AUMs of forage being allocated.
        The comments on the proposed definition of permitted use were 
    similar to those relating to preference. Some commenters asked what 
    would happen to existing suspended AUMs under the new concept of 
    permitted use. Some suggested that the proposed rule would limit 
    grazing to what is stated in the land use plan, and that this would 
    effectively cancel the grazing preference. These commenters suggested 
    that the result would be significant reductions in grazing, and that 
    the regulation would thus ``take'' the rights of the permittee.
        As they did with respect to preference, some commenters stated that 
    the definition of permitted use would result in reduced economic 
    stability and would eliminate the collateral value of grazing permits. 
    They expressed concern that the new definition would negatively affect 
    property values and would adversely affect the ability of the permittee 
    to obtain financing.
        Commenters further opposed the use of the Land Use Plan to 
    determine the permitted grazing use. They argued that these plans are 
    not site specific documents, and that it is arbitrary for the 
    Department to use them to make site specific decisions. They advocated 
    that BLM use actual range condition and trend data on individual 
    allotments to make these decisions. Some commenters took the position 
    that the proposed definition of permitted use was contrary to statute.
        Permitted use is an end product of the process of renewal or 
    issuance of permits or leases. The land use plan provides guidance for 
    allocation of land or forage to various uses on a regional scale. In 
    the context of grazing, the land use plan sets the basic parameters by 
    which permits and leases are issued or renewed. The objectives set in 
    the plan are refined in the permit or lease, and permitted use is then 
    expressed in AUMs of active use, including both livestock use and 
    conservation use, as well as suspended use and temporary nonuse during 
    a particular time period. This process and terminology are fully 
    consistent with TGA, FLPMA and PRIA. The land use plan allows 
    adjustment of the AUM amounts and seasons based on monitoring, other 
    studies, or where changes in permitted use or terms and conditions are 
    necessary to meet land use plan objectives. Where changes in the 
    situation are major, it may be necessary to amend the land use plan, 
    thus re-initiating the process. In the absence of a major change in the 
    overall [[Page 9923]] situation and where these objectives are being 
    met, changes in permitted use through BLM initiative are unlikely. This 
    provides a high level of security, stability and predictability from 
    year to year.
        Few comments were received on the proposed definitions of actual 
    use or utilization. One comment stated that the proposed definition had 
    changed the concept from a record of livestock use to a plan for actual 
    use, and that the permittee should be able to make good faith changes 
    to protect rangeland by changing grazing schedules to respond to 
    weather forces. Others suggested that the Department was exceeding its 
    authority in applying actual use to the ``number, kind or class of 
    livestock.'' Still others suggested that actual use must include all 
    animals which consume forage, not just domestic animals. Many 
    commenters on the proposed definition of utilization recommended that 
    BLM link utilization to actual use and include use of forage by horses, 
    burros and wildlife.
        The Department has the authority to apply the concept of actual use 
    to ``number, kind or class of livestock.'' Under section 315 of TGA, 
    the Secretary has the authority to specify ``numbers of stock and 
    seasons of use.'' Additionally, under FLPMA, the Secretary has the 
    authority to establish terms and conditions for grazing leases and 
    permits. The reporting of actual use is necessary to evaluate the 
    effect of grazing practices, and is a fundamental tenet of the science 
    of range management. AUMs are a unit of measure of forage consumption 
    and allocation. Knowing the number of animals involved and the duration 
    of grazing in a specific situation is essential to quantifying the AUMs 
    consumed and in setting future numbers and seasons. Actual use and 
    utilization or use patterns, when considered either with the current 
    year's weather or over time, provides a very complete picture of the 
    impact of grazing use on rangeland resources. The same information also 
    provides significant insight into opportunities to alter management, to 
    improve livestock distribution, plan range improvements or to 
    accurately predict the future consequences of continuing the current 
    grazing practices.
        Actual use, in the context of this final rule, refers strictly to 
    domestic livestock grazing. However, the Department concurs that when 
    it is used to evaluate the effect of a particular grazing practice, BLM 
    must consider the use made by all grazing animals including wildlife 
    and wild horses and burros where they are present. Actual use data can 
    be used both for billing purposes and to analyze the impact of grazing. 
    Where its intended use is strictly for billing, the data may be 
    aggregated for the entire allotment area and entire billing period. 
    Where the data are to be used for analytical purposes, it must be 
    broken out by the treatment area (frequently a pasture).
        Some commenters submitted comments on the definition of activity 
    plan. Most questioned the relationship between the concept and the AMP 
    specified in FLPMA. Some asserted that since FLPMA uses the term AMP, 
    there is no authority for an activity plan, or that activity plans 
    could not relate to grazing and therefore have no place in grazing 
    regulations. Others suggested narrowing the concept by applying it 
    specifically to grazing areas and for the purpose of achieving grazing 
    objectives in order to maintain desirable range conditions.
        Activity plans have been included in the definitions and the text 
    of this final rule because there are efficiencies to be gained by 
    considering a variety of uses simultaneously in one planning document. 
    The Department disagrees that just because FLPMA uses the term AMP, the 
    Department has no authority for an activity plan. The Secretary has 
    ample authorities under FLPMA, TGA, and PRIA to undertake any planning 
    activities necessary to implement the grazing program.
        Many comments were received on the concept of affiliate. Many 
    commenters stated that the proposal was vague, discriminatory against 
    ranch operators and that it will lead to capricious and arbitrary 
    enforcement by BLM. Other commenters stated that ``control'' was poorly 
    defined and that the concept should be applied to other parties such as 
    the RAC members.
        Some commenters expressed concern about the liability provisions. 
    They stated that because of potential liability resulting from this 
    provision, banks and other businesses will be less likely to do 
    business with ranchers who have grazing permits or leases. Moreover, 
    some asserted that ranchers will be less responsible if they know that 
    they are not solely liable for their actions. Other commenters asked if 
    permittees must have control of affiliates and if affiliates' records 
    of performance would be considered when issuing a permit.
        The purpose behind the use of the term affiliate is to promote 
    accountability among all parties involved in the control of a grazing 
    operation. The term is commonly used in business to identify persons 
    having legal ties to each other where accountability is in some manner 
    shared. Some permits or leases are issued in the name of one person 
    when in actuality there may be other persons closely involved in the 
    management of the operation. In the final rule, the Department has not 
    adopted proposed provisions referencing percentage of ownership and 
    specific relationships such as officers and directors. The term 
    ``entity'' includes partnerships, corporations, associations, and other 
    such organizations. The Department believes that the definition adopted 
    better addresses the affiliate relationships typically associated with 
    livestock grazing operations.
        The Department does not intend the term ``affiliate'' to be applied 
    in an over broad or burdensome manner but rather in a manner that 
    recognizes ordinary business relationships. Normally, affiliates will 
    be partners, agents and their principals, family members, and trusts or 
    corporations involving such individuals. It is unlikely that 
    ``affiliate'' would include financial institutions.
        Numerous comments were received on the definition of Allotment 
    Management Plan and consultation, cooperation and coordination. The 
    commenters stated that the proposed definition of the latter term is 
    contrary to FLPMA, particularly because they believed it eliminates 
    consultation, cooperation and coordination with the lessee or 
    permittee. Other commenters stated that the definition did not meet 
    standards for local involvement under Section 8 of PRIA, and did away 
    with a special and contractual relationship between permittees and BLM.
        The Department intended the change proposed in this definition to 
    simplify references to consultative activities and to make usage 
    consistent throughout the regulations. Throughout these rules, the 
    Department has specifically increased--not decreased--opportunities for 
    interaction with the permittee, lessee, States, and the interested 
    public. However, because of the confusion generated by the language in 
    the proposal, the Department has decided to use the term 
    ``consultation, cooperation, and coordination'' as it is used in 
    existing rules.
        A number of comments were received on the definition of interested 
    public. Comments addressed the effects of broadening the public role in 
    land use decisions, including the need for BLM to make timely 
    decisions. Some comments offered more restrictive definitions of 
    ``interested public.'' Other comments supported the change in 
    definition and requested that the Department clarify in the rule that 
    members of the public are not any less [[Page 9924]] affected by 
    livestock decisions than are permittees.
        The Department does not agree that the regulations include 
    excessive public involvement by expanding opportunities for input into 
    grazing management to the interested public. Anyone with a high level 
    of interest in shaping objectives, planning courses of action, and 
    evaluating results associated with management of the public lands 
    should have an opportunity for involvement. Congress has acknowledged 
    this interest and makes provisions for it in FLPMA, NEPA, FACA and the 
    Administrative Procedure Act (APA). Experience has shown that the 
    greater and more meaningful the participation during the formulation of 
    decisions and strategies for management, the higher the level of 
    acceptance and thus the lower the likelihood of a protest, an appeal or 
    some other form of contest. Nevertheless, it will remain the 
    responsibility of BLM to make timely decisions. These rules do not 
    change existing time frames for public comment or for protests or 
    appeals.
        Some comments were received on the definition of grazing permit or 
    grazing lease. Commenters asserted that the definition failed to make 
    adequate distinction between Section 3 and Section 15 allotments. The 
    distinction between Section 3 and Section 15 lands is made at 
    Sec. 4110.2-1(a).
        The Department received a few comments on the definition of land 
    use plan. Some commenters wanted the definition to require BLM planning 
    documents to conform to State or local land use plans. Other commenters 
    wanted BLM land use plans to give guidance to the designation of lands 
    for grazing. Land use plans provide guidance on a regional scale and 
    allocate resource uses and objectives. FLPMA and the subsequent 
    planning regulations provide sufficient authority to prevent grazing in 
    areas where grazing would conflict with other objectives. Local and 
    State governments will be considered members of the interested public 
    and invited to participate in the development of land use plans. It is 
    not necessary for Federal plans to conform to local or State plans in 
    all cases. FLPMA requires the Department's planning process to be as 
    consistent as possible with local or State plans, but not to be in 
    conformance with them.
        A few comments were received on the definition of range 
    improvement. Some commenters supported the use of the range improvement 
    fund to benefit livestock; others sought to expand use of the fund to 
    support projects intended to improve rangeland. FLPMA directs that ``* 
    * * such rehabilitation, protection, and improvements shall include all 
    forms of range land betterment including but not limited to, seeding, 
    and reseeding, fence construction, weed control, water development, and 
    fish and wildlife habitat enhancement * * *'' All uses authorized by 
    FLPMA, including improvements to the health of the rangeland, will 
    remain valid under this rule.
        The Department received a few comments on the definition of 
    unauthorized leasing and subleasing. Commenters stated that the 
    proposed subleasing definition limited subleasing, which is necessary 
    to rural economic health. The Department believes the final provisions 
    relating to unauthorized leasing and subleasing do not discourage 
    subleasing that may be necessary to sustain rural economic health. 
    Indeed, the current definition of subleasing implies that no subleasing 
    is allowed. This new definition, by addition of the word 
    ``unauthorized,'' clarifies that the Department will approve subleasing 
    under certain conditions. The Department believes that it is simply 
    good land management for it to know to whom permittees or lessees have 
    subleased their grazing privileges, and under what circumstances.
        In response to concerns raised by the commenters, the Department 
    has decided to delete provisions requiring the payment of a surcharge 
    on subleasing grazing privileges in conjunction with the lease or 
    sublease of base property. This is discussed in detail in the section 
    of this preamble relating to final Sec. 4130.8 (Sec. 4130.7-1 in the 
    proposed rule).
        The Department also received requests that it define de minimus, 
    biological diversity, ecosystem, environmentalists, ecosystem 
    management, ecosystem management framework and viable population. Some 
    commenters suggested that a definition of grazing association be added. 
    A number of commenters requested a definition of ``substantial 
    compliance.'' The Department believes that these terms are adequately 
    defined by common usage.
        In accordance with the above discussion, the Department has decided 
    to adopt the proposed definitions, with some changes.
        The definition of affiliate is revised to eliminate references to 
    percentage of ownership and specific relationships such as being an 
    officer, director, or controlling fiscal or real property resources. 
    The Department believes the definition adopted adequately encompasses 
    such relationships. The language is also amended by adding reference to 
    ``applicant'' as well as ``permittee or lessee.'' Finally, ``is 
    controlled by, or is under common control with,'' is added after 
    ``controls,'' to clarify what types of relationships are covered by the 
    provision.
        A new definition of annual rangelands is added in response to 
    commenters' requests. The term means those areas which are occupied 
    primarily by annual plants and which are available for livestock 
    grazing during some years. This is a technical term associated with the 
    rangeland management program, and the Department agrees that a 
    definition will provide clarity to the application of these provisions.
        The definition of conservation use is revised to clarify that it 
    can apply to all or a portion of an allotment.
        The definition of consultation, cooperation, and coordination is 
    revised to mean a process for communication between BLM and parties 
    involved in particular rangeland management decisions.
        A definition of ephemeral rangeland is added to mean areas of the 
    Hot Desert Biome (Region) that do not consistently produce enough 
    forage to sustain a livestock operation but may briefly produce unusual 
    volumes of forage to accommodate livestock grazing. Typically, such 
    areas receive less than 8 inches of rainfall each year and lie below 
    3,200 feet elevation. This is a technical term associated with the 
    rangeland management program and the Department believes that a 
    definition will provide clarity to the application of these provisions.
        The definitions of grazing lease and grazing permit are revised by 
    the addition of the phrase ``the area authorized for grazing use, or 
    both,'' to accommodate situations such as ephemeral or annual rangeland 
    in which the area authorized for grazing is used in place of AUMs to 
    specify permitted use, because of inconsistent production of forage. 
    The definition of land use plan is revised to clarify that the term 
    refers to plans developed under 43 CFR Part 1600.
        The definition of range improvement is revised to remove the phrase 
    ``or provide habitat for'' to ``to benefit'' livestock. This change was 
    made to avoid confusion with the concept of wildlife habitat.
        The definition of utilization is revised to clarify that it refers 
    to a ``portion'' of forage consumed, which reflects actual practices. 
    The proposal used the term ``percentage.'' [[Page 9925]] 
    Section 4100.0-7  Cross-References
        This section would have been amended to guide the public to the 
    applicable sections of the 43 CFR part 4 when considering an appeal of 
    a decision relating to grazing administration, and to 43 CFR part 1780 
    regarding advisory committees.
        No comments were received on this section and it is adopted as 
    proposed.
    Section 4100.0-9  Information Collection
        The proposed rule would have added this section to conform to the 
    requirements of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.). 
    The section would have disclosed to the public the estimated burden 
    hours needed to comply with the information collection requirements in 
    this proposed rule, why the information is being collected, and how the 
    information will be used by BLM. Several comments were received on this 
    section addressing information resources and questions of timeliness 
    relating to compliance.
        The intent of this section is to comply with a statutory 
    requirement to disclose how much time will be required for regulated 
    persons to comply with the information collection requirements of these 
    regulations. Which sources of information the Department will use to 
    obtain local input is not a germane issue, nor is the time required by 
    commenters to comment on these regulations.
        In accordance with the above discussion, the Department has decided 
    to adopt the provision as proposed.
    Section 4110.1  Mandatory Qualifications
        In the proposed rule, this section would have provided that 
    applicants for new or renewed permits or leases and any affiliates must 
    be determined by the authorized officer to have a satisfactory record 
    of performance. The section would have discussed what satisfactory 
    record of performance means for both renewals and new permits. For 
    renewals, the proposal would have provided that it means being in 
    substantial compliance with the rules and regulations issued and the 
    terms and conditions of the existing permit or lease for which renewal 
    is sought. In assessing whether an applicant for renewal is in 
    substantial compliance, the authorized officer would consider the 
    number of prior incidents of noncompliance with the requirements of 43 
    CFR Part 4100. The authorized officer can include in this consideration 
    the nature and seriousness of any noncompliances. For new permits, it 
    would have meant not having had any State grazing permit or lease 
    within the Federal grazing allotment, or any Federal grazing permit or 
    lease, cancelled within the previous 36 months, and not being barred 
    from holding a Federal grazing permit or lease by court order.
        The proposal further discussed the determination of affiliation. It 
    would have provided that in determining affiliation, the authorized 
    officer would have considered all appropriate factors including, but 
    not limited to, common ownership, common management, identity of 
    interests among family members, and contractual relationships. This 
    provision would have ensured that all parties who had the ability to 
    control operations on a permit or lease, not just the immediate 
    permittee or lessee, had a record of good stewardship of the land.
        Additionally, the proposal would have clarified that mortgage 
    insurers, natural resource conservation organizations, and private 
    parties whose primary source of income is not the livestock business, 
    could meet the criteria for qualifications for a grazing permit or 
    lease.
        Finally, the proposal would have required applicants to submit 
    applications and any other information requested by the authorized 
    officer to determine that all qualifications have been met. This 
    provision would have clarified that applicants cannot refuse to provide 
    BLM with information needed to evaluate applications for permits or 
    leases.
        The Department received a substantial number of comments on this 
    section. Major themes expressed in the comments pertained to the 
    Department's rationale and legal authority for the provisions, 
    opposition to finding applicants to be qualified in cases where the 
    applicant was not actively involved in the livestock business, concerns 
    about how various terms would be defined and applied in determining 
    qualification, the perceived potential of the provision to adversely 
    affect permit tenure, property values, and financing, and BLM's ability 
    to implement the provisions as worded.
        Many comments opposed allowing persons not engaged in the livestock 
    business to qualify for grazing permits and leases. Some commenters 
    asserted that this provision, in combination with provisions for 
    conservation use, would result in non-grazing interests acquiring and 
    retiring grazing permits, would cause deterioration of the land, and 
    would be inconsistent with TGA. Similar comments were also received on 
    Sec. 4100.0-5 Definitions and Sec. 4130.2 Permits or leases.
        There was also considerable concern about the requirement that 
    permit applicants have a satisfactory record of compliance. In 
    particular, commenters asked how terms such as ``permit violations'' 
    and ``satisfactory record of performance'' would be defined, who would 
    make the determination of satisfactory performance, and whether the 
    provisions would be applied consistently across BLM administrative 
    boundaries. One comment suggested that BLM and permittees or lessees 
    should agree to how terms will be defined and applied prior to the 
    issuance of a new permit, to enable both parties to understand their 
    status. Others asserted there was no statutory basis for this 
    provision. Some had a concern that evaluating compliance was unduly 
    burdensome on the agency.
        One comment stated that the basic principle of having a 
    satisfactory record was reasonable because it was ``little different 
    than a private landowner refusing to lease to a troublesome 
    individual.'' The same commenter was concerned, however, that the 
    provision gave authorized officers broad investigative powers that 
    could result in an invasion of privacy. Commenters also expressed the 
    opinion that only serious violations of permits or leases should be 
    considered in applying the qualification provisions to prevent 
    arbitrary adverse action.
        Some commenters questioned the validity of considering the 
    historical record of compliance, asserting that current performance is 
    what is relevant. Still others stated that the provision did not go far 
    enough in conditioning qualification on past performance. For instance, 
    one commenter stated that any revoked State or Federal lease or permit 
    should be the basis for denying new or renewed permits, asserting this 
    indicated the permittee is unable or unwilling to be a responsible 
    steward of public lands. Some commenters stated that 36 months was too 
    short a time, and advocated a five or six year review period. 
    Additionally, it was suggested that willful, repeat violators, 
    reflected by multiple revocations of Federal or state permits, should 
    be permanently barred from grazing Federal lands. It was also suggested 
    that the burden of proof should be on the permittee or lessee.
        Some commenters expressed opposition to considering performance 
    connected with State leases in determining qualifications, questioning 
    the Department's authority and the constitutionality of the provision. 
    One comment said that it would discourage [[Page 9926]] permittees from 
    leasing State lands, and in turn would hurt State income.
        Several comments specific to qualifications for renewals stated 
    that the concept of denial for noncompliance would decrease a 
    permittee's security of tenure, in turn leading to less investment in 
    permits and a decreased ability to achieve rangeland objectives. Some 
    commenters were concerned that nonrenewal of a permit would decrease 
    the value of the permittee's or lessee's private property and 
    improvements, affected their ability to secure financing, and not 
    renewing the lease constituted a ``taking,'' and the provision was 
    contrary to TGA. Some asserted that disqualification on the basis of 
    cancellations of other permits and leases should extend to renewals, 
    not just new permits. Others suggested that applicants be disqualified 
    when other permits or leases are suspended (in addition to cancelled 
    permits and leases) or when not in compliance with other permits and 
    leases at the time of application.
        There was also some concern about the ability of BLM personnel to 
    determine affiliation. One commenter asked whether he would be 
    responsible for the actions of someone he sold his ranch to. An Indian 
    tribe that holds permits and subsequently leases the permits to 
    individual tribal members expressed concern that the tribe would be 
    judged by the behavior of the individual permittees under the concept 
    of affiliation.
        The statutory basis for these regulations is found in FLPMA and 
    TGA. FLPMA (43 U.S.C. 1740) authorizes the Secretary to promulgate 
    rules and regulations necessary to implement the requirements of the 
    Act. Regarding requirements for first priority for renewal, 43 U.S.C. 
    1752 requires among other things that applicants must be found to be in 
    compliance with the terms and conditions of the permit and pertinent 
    rules and regulations. The amendments pertaining to the 
    disqualification of applicants are intended to reflect the requirements 
    of TGA and FLPMA that public lands be managed in a way that protects 
    them from destruction or unnecessary injury and provides for orderly 
    use, improvement, and development of resources. The Department believes 
    that the provisions of this section of the rule are critical to BLM's 
    ability to ensure that permittees and lessees are good stewards of the 
    land. The provisions will benefit good stewards by ensuring tenure in 
    the renewal of permits and leases and by giving them an advantage in 
    the issuance of new permits and leases. Comments on ``takings'' are 
    discussed in the General Comments discussion above.
        Neither conservation use nor elimination of the requirement that 
    applicants must be engaged in the livestock business is inconsistent 
    with TGA. The TGA gives preference to landowners engaged in the 
    livestock business but does not require it. This change is made 
    necessary by the increasing number of part time ranchers, permits held 
    by financial institutions and other non-ranching organizations, and 
    permits where the livestock operator is in an initial developmental 
    stage and is not yet ready to run cattle on the range.
        The concepts of ``permit violations,'' ``satisfactory record of 
    performance'' and ``substantial compliance'' are defined in general 
    terms by the text of this final rule. Application on a case-by-case 
    basis will be done by the authorized officer, within the framework 
    established by this final rule, based upon review of the record. For 
    renewals, it will extend only to review of the permittee's record on 
    the permit or lease for which renewal is sought. On new permits, it 
    will include a review of State and Federal leases within the prior 36 
    months, and of any existing judicial bar on holding a permit. 
    References to permits cancelled for violations are used to distinguish 
    such cancellations from administrative cancellations such as those that 
    might occur when the land is to be devoted to another public purpose. 
    Basing qualifications on whether past permits and leases have been 
    cancelled for violation is intended to focus attention on those types 
    of violations that justified decisive and substantial corrective 
    action. As with all decisions under 43 CFR part 4100, denial of permit 
    and lease applications under these provisions is subject to appeal 
    under subpart 4160.
        Consistency in application of the qualification requirements is of 
    concern to the Department. These regulations will assist in achieving 
    standardization, as will periodic information bulletins, instruction 
    memoranda, technical guides, handbooks and training. The comment 
    suggesting that permittees and BLM seek a mutual understanding of these 
    provisions at the time of permit issuance is the type of guidance that 
    may be provided. An appeal process is available under subpart 4160 when 
    the permittee or lessee believes the regulations have been 
    inappropriately interpreted in a specific circumstance.
        Determining compliance with the terms and conditions and rules and 
    regulations at the time of permit renewal stems from a statutory 
    provision (43 U.S.C. 1752(c)). The Department expects that a finding of 
    noncompliance will be an exception rather than a common occurrence. It 
    is not feasible to require the authorized officer to investigate 
    applicants to identify unrecorded instances of noncompliance, as 
    suggested by several commenters. The resources required to conduct such 
    a check would not be worth the results.
        The Department disagrees that looking back at an applicant's 
    history of performance on Federal or State grazing leases will violate 
    privacy protections. The information used to evaluate historical 
    performance will be established records that are available to the 
    public. As stated above, the Department will use records of performance 
    to confirm the ability of the applicant to be a steward of the public 
    land. Although current performance may indicate stewardship, it does 
    not provide as complete information as does the applicant's longer-term 
    record of performance. However, consideration of the record is not 
    without limitation. The Department chose the 36-month cut off of 
    consideration of applicant and affiliate performance as a fair yet 
    sufficiently rigorous measure of potential stewardship. The 36-month 
    look-back applies only to applications for new permits or leases.
        In regards to the comment that willful and repeated violations 
    should result in a permanent debarment, the Department has chosen to 
    reject the recommendation as excessively harsh. Due to the severity of 
    such a penalty it is best left to the judicial system.
        In essence, where there is a record of prior noncompliance, the 
    burden of proof is on the permittee. The record of compliance will be 
    determined based upon a review of the public record. If there are any 
    extenuating circumstances to be considered, it will be the 
    responsibility of the permittee to support them.
        An applicant's record on State permits is relevant to consideration 
    of the applicant's compliance record for purposes of obtaining new 
    permits. If an applicant has violated the terms and conditions of a 
    State lease to such an extent that the lease was cancelled, it is 
    reasonable to assume that person is more likely to violate the terms or 
    conditions of a Federal lease than is a person with a good record of 
    compliance on State leases or permits. This is particularly true since 
    consideration of State leases is limited to the allotment for which a 
    new Federal permit or lease is sought. The Department disagrees that 
    these provisions will discourage leasing of State lands. Only those few 
    persons who [[Page 9927]] commit violations that result in the 
    cancellation of their State permits will be affected.
        The requirement of applicants for renewal to be found to be in 
    compliance with terms and conditions and the pertinent rules and 
    regulations on the permit or lease for which renewal is sought is not 
    new; it stems directly from FLPMA (43 U.S.C. 1752(c)). While 
    disqualification from obtaining a new permit or lease or a renewal of a 
    permit or lease under this provision may in some instances affect 
    financing or other aspects of ranch economics, the principal objective 
    of these provisions--encouraging and recognizing stewardship--is 
    consistent with the long-term stability and economic viability of a 
    ranch operation.
        The Department does not agree that suspensions, in addition to 
    cancellations, should serve as a basis for disqualifications. 
    Suspensions may be imposed for a wide range of problems. While some may 
    be serious enough to warrant denial of additional permits, others may 
    not be. If a person continues to perform so poorly that BLM suspends 
    one or more permits, the authorized officer has the discretion to take 
    the next step, cancellation. In that case, the person would become 
    ineligible for a new permit for the next 36 months.
        In regards to difficulties in determining affiliation, the 
    Department does not intend that such a determination will require an 
    in-depth investigation. Rather, the authorized officer will rely on 
    readily available information and material provided by the permittee or 
    lessee through the normal permit or lease application process.
        Once an individual has sold his ranch and a permit has been 
    transferred, the original owner will not be considered responsible for 
    it. The concept of affiliate is intended to take into account those 
    persons who actually have the ability to control the manner by which a 
    grazing operation is conducted. The Department does not believe this 
    extends to buyer-seller relationships unless as a result of the 
    transaction the seller retains some interest in the operation, such 
    that it meets the definition of ``affiliate.''
        The concern of the tribal government is well founded. If the tribe 
    receives permits and in turn leases them to individual tribal members, 
    the Department assumes that the tribe's relationship to the tribal 
    members meets the definition of control. Through the terms of the 
    leases, if by no other means, the tribe can exercise control over its 
    members.
        In accordance with the above discussion, the Department has decided 
    to adopt the rule as proposed, with the text subdivided and 
    redesignated and headings added for clarity. Additionally, the word 
    ``relevant'' is added to paragraph (d) to modify ``information'' to 
    clarify that the authorized officer is authorized to request 
    information from the applicant that is relevant to the application 
    process, not just any type of information.
    Section 4110.1-1  Acquired Lands
        The proposed rule would have revised this section to clarify that 
    BLM will apply the terms and conditions of existing grazing permits on 
    leases on newly acquired lands in effect at the time of acquisition of 
    the lands. This change was proposed to make clear that terms and 
    conditions of permits and leases in effect at the time land is acquired 
    will be honored subject to the provisions of the transfer of ownership 
    (statute, title, etc.). Mandatory qualifications will not apply to such 
    permits or leases until the expiration of their current term.
        The Department received very few comments on this section. Some 
    expressed concern that this provision would mean that lands grazed at 
    the time of acquisition might later be turned to conservation use.
        It is true that, under this provision, lands which were grazed at 
    the time of acquisition could, with the expiration of the permit, be 
    turned to conservation use. However, the commenters should keep in mind 
    that conservation use will be issued only at the request of the 
    permittee, and will be required to be consistent with applicable land 
    use plans. Additional information on conservation use can be found in 
    this preamble in the discussion of Sec. 4130.2.
        The Department has decided to adopt this provision as proposed.
    Section 4110.2-1  Base Property
        Under the proposed rule, this section would have been amended by 
    clarifying that base property is required to be capable of serving as a 
    base for livestock operations but it need not be used for livestock 
    production at the time the authorized officer finds it to be base 
    property.
        A provision would have been added to clarify that the permittee's 
    or lessee's interest in a base water previously recognized as base 
    property would still qualify as base property following authorized 
    reconstruction or replacement required to continue to service the same 
    area.
        The Department received comments on this section ranging from those 
    who questioned the justification for implementing the concept that base 
    property be capable of supporting livestock use to those who questioned 
    how the Department would determine what was capable of supporting 
    livestock and what was not. Others questioned whether base property 
    must be contiguous.
        The Department has introduced the concept of ``capability'' of base 
    property to support livestock in order to a) recognize that not all 
    private land holdings are of sufficient size and character to support a 
    livestock operation, and b) provide for situations where persons or 
    organizations other than traditional livestock operators, such as 
    insurers, financial organizations, or conservation organizations, 
    acquire a ranch but may not at the moment be in the livestock business 
    at that location. The Department believes this is in the public 
    interest. As long as the base property is capable of supporting a 
    livestock operation, the property should be eligible to be considered a 
    base of livestock operations. The provision is not intended to remove 
    the requirement for permit applicants to have base property, nor is the 
    provision intended to circumvent BLM's authority to decide whether 
    public lands should or should not be grazed.
        The Department does not believe it is necessary for the base 
    property to be supporting a livestock operation at present to be 
    eligible to be considered base property. The proposal would allow for 
    the acquisition or retention of a grazing permit or lease during 
    periods when cattle are not actually being grazed, as long as it were 
    possible to conduct grazing operations. For example, an operation could 
    be in a start-up phase, planned to last for several years, prior to 
    actually placing cattle on the land. While some permittees may not 
    intend to initiate a grazing operation, under the proposal any extended 
    conservation use would be allowed by BLM only if in conformance with 
    approved land use plans or other activity plans and standards and 
    guidelines.
        The Department disagrees that contiguous property should 
    automatically be considered capable, or that only contiguous properties 
    should be considered capable of serving as a base. In some cases, there 
    is more than one contiguous property, and a decision must be made as to 
    which would serve best as base property. Also, some contiguous 
    properties may not actually be capable of supporting grazing 
    [[Page 9928]] operations, due to their size or character. For example, 
    some may have been so sub-divided that they could no longer support 
    such operations. Finally, statutory provisions in TGA clearly allow 
    non-contiguous property to be considered base.
        Under the final rule adopted today, property merely has to be 
    capable of supporting an operation. Property currently serving as base 
    property would in all likelihood be found to be capable of serving as a 
    base of livestock operations.
        The Department intends the provision regarding water to recognize 
    that in some cases base waters need to be redeveloped, and the holders 
    of those base waters should not lose base property status just because 
    they had to redevelop the water.
        For the reasons discussed above, the Department has decided to 
    finalize the provision as proposed, with one minor change. The words 
    ``would utilize'' is substituted for ``utilizes'' for consistency with 
    the concept that base property need only be capable of supporting a 
    grazing operation; no operation need be in existence at the time the 
    property is determined to be suitable as base property.
    Section 4110.2-2  Specifying Permitted Use
        In the proposed rule, this section would have been renamed 
    ``Specifying permitted use'' replacing the existing title ``Specifying 
    grazing preference.'' It would also have been amended by replacing the 
    term ``grazing preference'' with ``permitted use'' because the latter 
    is more appropriate terminology to describe and quantify the number of 
    AUMs of forage being allocated in a permit or lease. Also, the section 
    would have been amended to clarify that levels of grazing use on 
    ephemeral or annual ranges are established on the basis of the amount 
    of forage that is temporarily available pursuant to vegetation 
    standards prescribed by land use plans or activity plans.
        The Department received a number of comments concerning the 
    proposal to substitute ``permitted use'' for ``grazing preference'' and 
    the corresponding change in policy in the concept of preference being 
    limited to a priority position for the purpose of obtaining a grazing 
    permit or lease. Comments ranged from those who felt the amendment was 
    a good idea to those who believed the change would lead to financial 
    insecurity for grazing operations. Others asked for definitions of the 
    terms ``annual rangelands'' and ``ephemeral rangelands.''
        The Department has decided to adopt the proposed provision, with 
    several clarifying changes to reflect the initial intent of the 
    proposed rule. Reference to authorizing use ``where livestock use is 
    authorized based upon forage availability'' is moved to modify 
    ``ephemeral rangeland.'' This clarifies that it is ephemeral rangelands 
    where use must be determined based on actual forage availability. The 
    word ``authorized'' is replaced by ``permitted'' in the third sentence 
    for consistency with other provisions in this final rule, including the 
    first sentence of this paragraph. The phrase ``activity plan, or 
    decision of the authorized officer'' is added after ``land use plan'' 
    to clarify that such plans or decisions may be the basis for 
    determining permitted use. Finally, the word ``occasional'' is deleted 
    in two places. While ephemeral rangelands are used only occasionally, 
    due to lack of forage availability under normal conditions, annual 
    rangelands are generally available for grazing. Since this provision 
    refers to both types of rangelands it is inaccurate to use the term 
    ``occasional'' to refer to forage availability.
        The Department has considered the suggested wording changes and has 
    determined that the proposed language best represents the intent of 
    this section, with the exceptions noted. The new definition of the term 
    ``preference'' is considered at Sec. 4100.0-5.
        The final rule does eliminate the concept of ``preference AUMs'' 
    and replaces this term with the term ``permitted use.'' Permitted use 
    is not subject to yearly change. Permitted use will be established 
    through the land use planning process, a process which requires data 
    collection and detailed analysis, the completion of appropriate NEPA 
    documentation, and multiple opportunities for public input. 
    Establishing permitted use through this planning process will increase, 
    not decrease, the stability of grazing operations. The rule clearly 
    defines preference to be a superior or priority position for the 
    purpose of receiving a grazing permit or lease. Therefore, the 
    Department does not anticipate there will be a decrease of financial 
    stability for grazing operations.
        There is no need to eliminate the concept of ``grazing preference'' 
    totally. The concept of assigning first priority to certain persons is 
    well-established in TGA and is an appropriate way to contribute to the 
    stability of dependent livestock operations and the western livestock 
    industry. The redefinition of preference is intended to resolve the 
    confusion and misinterpretation of the concept that has developed over 
    the years. In particular, the redefinition eliminates the shorthand 
    jargon of ``preference AUMs'' that has developed to refer to the number 
    of AUMs included in a permit or lease offered to a holder of grazing 
    preference.
        In response to commenters' suggestions, definitions of annual and 
    ephemeral rangelands are added to this final rule. They can be found in 
    Sec. 4100.0-5. Regarding permitted use for annual rangelands, the 
    Department has made some minor wording changes in this final rule for 
    clarity.
        The provisions pertaining to ephemeral ranges address designated 
    ephemeral ranges--specific areas that have been recognized through 
    BLM's provisions for ephemeral grazing. There are some smaller areas 
    scattered throughout the desert southwest and Great Basin that produce 
    amounts of forage sufficient for livestock grazing only occasionally 
    and that are included in perennially-grazed allotments. These generally 
    isolated areas can be recognized at the time livestock carrying 
    capacity is determined and can receive further protection through the 
    standards and guidelines that will be developed as a result of this 
    final rule.
    Section 4110.2-3  Transfer of Grazing Preference
        In the proposal, this section would have been amended to reflect 
    the new requirements of Sec. 4110.1 that applicants for new or renewed 
    permits or leases and any affiliates must be determined by the 
    authorized officer to have a satisfactory record of performance. It 
    would also have been amended by the addition of a new paragraph (f) 
    requiring that new permits or leases stemming from the transfer of base 
    property be for a minimum period of three years. The Department 
    proposed this provision to enhance the protection and improvement of 
    rangelands and to reduce the administrative work of processing 
    transfers. The section would also have been amended by the substitution 
    of the term ``permitted use'' for the term ``grazing preference'' where 
    the reference pertains to an amount of livestock forage. This change is 
    discussed at Sec. 4110.2-2.
        Most of the comments submitted on this proposed section addressed 
    the 3-year limitation on transfers, which some viewed as arbitrary and 
    without rational basis. Others read the proposal to mean that three 
    years was an upper limit on transfers, and suggested that a 10-year 
    term was needed to provide stability to the ranching operation, and to 
    assist in obtaining operating capital from lenders. Others questioned 
    the accuracy [[Page 9929]] of the cross-reference in the proposed 
    language.
        The Department disagrees that the 3-year minimum for transfers 
    stemming from base property leases is arbitrary and without rational 
    basis. This minimum is intended to reduce administrative burden and to 
    promote good stewardship of the land. The TGA requires the Department 
    to ensure ``orderly use, improvement, and development of the range.'' 
    Rapid turnover of permit and lease holders is not consistent with this 
    requirement. Persons who hold preference on an allotment but who 
    sublease their public land grazing privileges to short term occupants 
    rather than using the allotment for grazing cattle are not making 
    productive use of the land nor promoting the stability of the livestock 
    industry.
        The Department does not envision that the 3-year minimum for 
    transfers will impact the normal transactions in the livestock 
    business. It will not interfere with the sale of private lands or with 
    the subsequent transfer of the permit or lease to the new owner. The 
    provision does not encumber private lands--it only affects the 
    privileges associated with a grazing permit or lease. The effects of 
    the 3-year limit on transfers on a public lands rancher's equity has 
    been addressed in detail in the FEIS. The final rule provides for 
    transfers of less than three years in specified circumstances, for 
    example where base property changes ownership. Transfers are allowed 
    for up to 10 years. Three years is a lower limit.
        Regarding qualifications for a permit, transferees should be 
    expected to meet the same qualification criteria as other public land 
    permittees or lessees. Upon the completion of a transfer the transferee 
    will become the permit or lease holder. Given that some short-term 
    transferees may be less motivated to manage for the long-term health of 
    the rangelands, ensuring that transferees have a history of compliance 
    is of great importance.
        The cross reference is intended to ensure that transferees meet the 
    mandatory qualifications and own or control base property. While the 
    language in the proposal, referring to general Sec. 4110.2 is not 
    incorrect, more specific references to the provisions which the 
    transferee must meet, those in Secs. 4110.2-1 and 2-2, may be more 
    useful. The final language is modified accordingly.
        The Department has decided to adopt a final version of the proposed 
    rule with only one minor change, which reflects the new cross 
    reference.
    Section 4110.2-4  Allotments
        In the proposed rule, this section would have been expanded to 
    clarify that the authorized officer's existing authority to designate 
    and adjust allotment boundaries included the authority to combine or 
    divide allotments when necessary for efficient management of public 
    rangelands. The proposal also would have specified that modification of 
    allotments must be done through agreement or decision of the authorized 
    officer. These two changes were intended to provide administrative 
    clarity to the process. The proposal also would have added a 
    requirement expanding consultation to the State having lands or 
    responsible for managing resources in the area, and the interested 
    public, as well as the affected grazing permittees or lessees. Finally, 
    consistent with the change in definition of consultation, cooperation, 
    and coordination discussed in Sec. 4100.0-5, the proposal would have 
    eliminated the words ``cooperation and coordination.''
        The final rule adopts the language of the proposed rule except that 
    the terminology ``consultation, cooperation, and coordination'' is 
    included in the final rule.
        Most of the comments on this proposed section addressed two issues: 
    deletion of the terms ``coordination and cooperation'' and inclusion of 
    States and, particularly, the interested public in the consultation 
    process. Deletion of the terms ``coordination and cooperation'' was 
    viewed by some commenters as a violation of the intent of Section 8 of 
    PRIA which would prevent affected interests from exercising their right 
    to consult, cooperate, and coordinate.
        Some commenters objected to the inclusion of the interested public 
    in the consultation process on changing allotment boundaries because 
    they believed that it would interfere with currently established 
    boundaries, create uncertainty for operators, and decrease the 
    incentive to maintain improvements. Other comments suggested that 
    consultation on allotment boundary changes should be with the RAC, not 
    the interested public.
        Few comments were addressed specifically to the provision allowing 
    the authorized officer to combine or divide allotments. Commenters 
    asked how deeded lands within allotment boundaries would be handled, 
    and stated that adjusting allotment boundaries was a taking of private 
    property. Others asked who would bear any expenses associated with 
    boundary changes. Still others raised takings issues, and asked who 
    would bear the expense associated with boundary changes.
        As noted above in the discussion of Sec. 4100.0-5, because of the 
    confusion caused by the proposed deletion of ``cooperation and 
    coordination'' the Department has decided to use the full phrase 
    ``consultation, cooperation and coordination'' in cases where broad 
    based input in agency deliberations are encouraged.
        The Department believes that inclusion of the interested public is 
    important because the public is a stakeholder in the administration of 
    the public lands. Additionally, decisions regarding designation and 
    adjustment of allotment boundaries are subject to NEPA, and the public 
    must be involved in decisions subject to the NEPA process, because of 
    the requirements of that statute. Currently, BLM notifies all affected 
    interests of actions such as allotment boundary changes. The Department 
    does not expect there will be significant changes in current BLM 
    procedures to accommodate the requirements for consultation with the 
    interested public, beyond including any interested persons in such 
    routine notifications. Thus, the Department does not anticipate any 
    increased uncertainty or decreased incentive to maintain improvements. 
    While RACs might be consulted in certain cases, such as a controversial 
    adjustment or where significant funding is required, the Department 
    does not believe it is feasible to involve RACs in every routine 
    action.
        The Department envisions that most adjustments in allotment 
    boundaries would have little effect on ranch units. Typically, such 
    adjustments are to realign boundaries to be consistent with actual use 
    of the allotment. For instance, an allotment boundary may be adjusted 
    to allow an adjacent ranch to make use of public lands that because of 
    natural physical barriers are not readily available to the current 
    permittee. Adjustments in allotment boundaries will in no way affect 
    the ownership of private lands.
        The Department does not believe that this provision would involve 
    any ``takings'' issues. Permits and leases to graze public lands within 
    grazing allotments do not constitute property rights. Adjustments in 
    allotment boundaries that result in a transfer of grazing preference 
    will be subject to the provisions of Sec. 4120.3-5 pertaining to the 
    assignment of range improvements and corresponding compensation for 
    such improvements. Takings issues are addressed further in the General 
    Comments discussion in this preamble. [[Page 9930]] 
        Decisions on who should bear the expense of constructing fences 
    made necessary by adjustments in allotment boundaries will be made on a 
    case-by-case basis. Depending on the circumstances, BLM, the grazing 
    permittee or lessee, or others may bear the costs. For instance, an 
    adjustment to an allotment boundary made at the request or for the 
    benefit of a permittee may be made subject to the permittee's 
    acceptance of fencing costs. Where a fence is to be constructed to 
    enhance the establishment or re-establishment of, for example, bighorn 
    sheep, BLM or State wildlife management agency may assume the costs.
        In accordance with the above discussion, the Department has decided 
    to adopt the provision as proposed, with one change. The terms 
    ``cooperation and coordination'' are included in the opening sentence.
    Section 4110.3  Changes in Permitted Use
        This section would have been amended by replacing the term 
    ``grazing preference'' with ``permitted use.'' This change is discussed 
    at Sec. 4110.2-2. The section would also have clarified that changes in 
    permitted use must be supported by monitoring, field observations, 
    ecological site inventory, or other data acceptable to the authorized 
    officer. This change would have broadened the sources of information 
    that could be relied upon by BLM as a basis for changing permitted use.
        The Department received a number of comments on this section. The 
    majority of the comments dealt with the information that BLM would use 
    to establish permitted use. Other commenters added that BLM should 
    consider the vegetation impacts that come from other resource uses in 
    calculating permitted use. Some commenters stated that no grazing 
    should be permitted until an accepted monitoring plan is carried out or 
    that permitted use in riparian areas should be evaluated every three 
    years and adjusted as needed.
        The Department agrees that professionally accepted and scientific 
    information is needed to justify changes in permitted use. Many factors 
    affect the type of information needed, the appropriate level of detail, 
    and the time span over which such information should be acquired--
    resource conditions, resource values, climate, local environmental 
    conditions, etc. The BLM can obtain information from a number of 
    sources in evaluating the need to change permitted use, in addition to 
    the traditional source, monitoring data. Other valid sources of 
    information include direct observation, ecological site inventory and 
    trend data. There is no sound scientific reason to limit the authorized 
    officer's flexibility by restricting him or her to one source of 
    information or to place specific timeframes for monitoring in the 
    regulations.
        Changes in permitted use are subject to consultation with 
    permittees, States having lands or managing resources in the area, and 
    interested publics. Furthermore, permittees and lessees can appeal 
    final decisions regarding changes in permitted use (See Secs. 4110.3-1 
    and 4110.3-2 and subpart 4160). Given these constraints, the Department 
    does not agree that the authorized officer has too much latitude.
        The Department agrees that other resource uses should be evaluated 
    in calculating permitted use. At the present time, wildlife and wild 
    horse and burro utilization levels are used in the calculations of 
    permitted use within an allotment.
        In accordance with the above discussion, the Department has decided 
    to adopt the rule as proposed, with the following minor changes. The 
    phrase ``assist in'' is added before the words ``restoring ecosystems 
    to properly functioning condition.'' These words have been added to 
    emphasize that the Department does not expect that rangeland health 
    will be restored as a result of single grazing management decisions, 
    such as changes in permitted use on one permit. Rather, restoration of 
    rangeland health will result from a series of decisions and actions 
    over time, including actions pertaining to uses other than grazing, all 
    of which will work together to establish significant improvements in 
    the condition of the rangelands.
        Further, the phrase ``to conform with land use plans or activity 
    plans'' is added as one objective of changes in permitted use to 
    clarify that, under 43 CFR Part 1600 and provisions in subpart 4120 of 
    this final rule, BLM is required to conform with decisions made in the 
    land use plans or other activity plans. Where grazing use does not 
    conform with such plans it must be modified.
    Section 4110.3-1  Increasing Permitted Use
        The proposed rule would have revised this section by requiring that 
    a permittee, lessee or other applicant be determined to be qualified 
    under subpart 4110, in order to be apportioned additional forage under 
    subsection (c), by substituting the term ``permitted use'' in place of 
    ``grazing preference,'' and by clarifying the requirements for 
    consultation. Also, reference to a permittee's or lessee's demonstrated 
    stewardship would have been added to factors to be considered in 
    allocating available forage.
        The final rule adopts the text of the proposed rule, except that 
    the final rule requires that ``consultation, cooperation, and 
    coordination'' take place prior to the apportionment of additional 
    forage under paragraph (c).
        The largest group of comments on this section asserted that the 
    interested public should not be involved in BLM's decisions to increase 
    forage temporarily. Others expressed concern about involvement of State 
    agencies or that increases should be subject to local government land 
    use plans. Other commenters stated that considering demonstrated 
    performance and compliance made decisions to increase permitted use 
    uncertain. Others stated that increases should be processed using the 
    established consultation, coordination and cooperation procedures 
    including Section 8 consultation.
        The Department believes that it is appropriate to involve the 
    public in the management of the public rangelands. Similarly, State and 
    local governments will be given an opportunity to comment on such 
    decisions. This is consistent with Section (202)(f) of FLPMA. Thus, any 
    decisions to increase or decrease permitted use or forage within a 
    grazing allotment will include not only the permittee but also the 
    interested public and the State having lands or managing resources in 
    the area. However, the BLM authorized officer will retain the authority 
    and responsibility to make final decisions on increased permit usage.
        Additional forage available for livestock grazing on a sustained 
    yield basis is first apportioned to permittees or lessees in proportion 
    to their stewardship efforts which resulted in increased forage 
    production. Any additional forage (AUMs) following this apportioning 
    could be available to other permittees/lessees or outside interested 
    applicants, assuming they are qualified under Sec. 4110.
        Record of performance and compliance are criteria for adjudicating 
    conflicting applications, not for allocating additional forage, unless 
    the grazing allotment is a community grazing allotment involving 
    several different permittees/lessees. Any final decision by the agency 
    can be appealed under the procedures set forth in subpart 4160.
        The Department agrees that increases should be done with 
    consultation, coordination, and cooperation, and the 
    [[Page 9931]] final rule makes this change. For further discussion, see 
    Sec. 4110.0-5. Otherwise, the provision is adopted as proposed.
    Section 4110.3-2  Decreasing Permitted Use
        The proposed rule would have amended this section by revising the 
    heading to change the term ``active use'' to ``permitted use.'' This 
    change would have been consistent with the proposed definitions of 
    these two terms, as discussed at Sec. 4100.0-5. Paragraph (b) also 
    would have been amended to provide that when monitoring and field 
    observations show grazing use or patterns of grazing use are not 
    consistent with the fundamentals of rangeland health (titled ``national 
    requirements'' in the proposed rule) or standards and guidelines or are 
    otherwise causing an unacceptable level or pattern of utilization, the 
    authorized officer must reduce permitted grazing use or otherwise 
    modify management practices. Paragraph (b) would also have added 
    ecological site inventory and other acceptable methodologies to 
    monitoring as ways of estimating rangeland carrying capacity as the 
    basis for making adjustments in grazing use. Subsequent adjustments 
    could be made as additional data were collected and analyzed.
        Paragraph (c) would have been deleted to remove the provision 
    requiring the authorized officer to hold those AUMs comprising the 
    decreased permitted use in suspension or in nonuse for conservation 
    purposes. Existing paragraph (a) of this section, which was not 
    proposed to be changed, would continue to provide for the temporary 
    suspension of active use due to drought, fire, or other natural causes, 
    or to installation, maintenance, or modification of a range 
    improvement.
        Some commenters stated that the proposed language is inconsistent 
    with legal requirements. Some commenters stated that the term 
    ``corrective action'' is ``vague and subjective.''
        Numerous commenters stated that it is necessary for the authorized 
    officer to determine the cause of range problems before decreasing 
    permitted use and questioned whether methods other than monitoring 
    would be suitable for determining carrying capacities. Some of these 
    comments suggested correcting other uses, such as wild horses and 
    wildlife, before permitted use is reduced. Some commenters expressed 
    concerns on the monitoring and inventory methodologies BLM would use. 
    Others stated that reductions should be placed in suspended use rather 
    than eliminated.
        This regulation is not inconsistent with statutory requirements. A 
    discussion pertaining to legal authorities and requirements is 
    presented under ``General Comments.''
        The BLM authorized officer will make a determination on a case-by-
    case basis as to what corrective actions are appropriate. In some cases 
    the corrective action may not result in a reduction in permitted AUMs. 
    For instance, a change in use periods or a temporary suspension in use 
    may be determined to be the appropriate action. In other instances, 
    data may show that other uses of the public lands need to be modified. 
    The Department believes that it would be inconsistent with its mandate 
    to manage the public rangelands to allow an allotment to continue to 
    deteriorate while prolonged monitoring studies are conducted in those 
    instances where other reliable measures of rangeland health indicate a 
    need for action.
        BLM uses a variety of accepted methodologies and available data to 
    determine carrying capacities of grazing allotments and to identify 
    unacceptable levels or patterns of use. Typically, findings of one form 
    of data collection are corroborated with other data before making 
    reductions in livestock use. The BLM Technical Reference 4400-5 
    (Rangeland Inventory and Monitoring Supplemental Studies) describes 
    acceptable methodologies for estimating forage production. 
    Additionally, BLM intends to develop rapid assessment techniques that 
    can be used to evaluate rangeland health as represented by established 
    standards and the guidelines to be followed in meeting standards and 
    the fundamentals of rangeland health. (See subpart 4180.)
        Although in some cases reductions made under this section of the 
    rule may be carried in temporary suspension, the Department does not 
    believe that it serves the best interests of either the rangeland or 
    the operator to continue to carry suspended numbers on a permit, unless 
    there is a realistic expectation that the AUMs can be returned to 
    active livestock use in the foreseeable future. Should additional 
    forage become available there are provisions at Sec. 4110.3-1 to 
    address increases in permitted use. Decisions resulting in a decrease 
    in permitted grazing use are subject to the administrative remedies 
    outlined in subpart 4160, including a right of appeal.
        In accordance with the above discussion, the Department has decided 
    to adopt the provision as proposed, with one minor change. The term 
    ``authorized grazing use'' in paragraph (b) is changed to ``permitted 
    grazing use,'' to make this provision more consistent with the 
    definitions included in this final rule.
    Section 4110.3-3  Implementing Reductions in Permitted Use
        The proposed rule would have renamed the section and removed 
    existing paragraph (a) and other requirements for phased-in reductions 
    in grazing use. This proposal was intended to provide the authorized 
    officer more flexibility to deal with situations in which immediate 
    action was necessary to protect rangeland resources; phase-in periods 
    for reduction in grazing use could still have been available if 
    determined by the authorized officer to be appropriate.
        The proposal would also have redesignated existing paragraph (b) as 
    paragraph (a) and amended it by removing the requirements to phase-in 
    reductions in use over a five year period. The proposal also would have 
    removed the terms ``consultation, coordination and cooperation,'' and 
    ``suspension of preference'' and added in their place the terms 
    ``consultation'' and ``reductions in grazing use,'' respectively. These 
    changes would have been consistent with changes in definitions 
    discussed at Sec. 4100.0-5. It would also have provided, by reference 
    to Sec. 4110.3-2, for the application of the fundamentals of rangeland 
    health and standards and guidelines and the use of other methods, in 
    addition to monitoring, for determining the need for an initial 
    reduction.
        Existing paragraph (c) would have been redesignated as paragraph 
    (b) and amended to remove the word ``temporary'' because that term 
    implies that protection would be needed for only one season. In 
    actuality, the influences of natural events such as drought could 
    significantly affect vegetation health and productivity for several 
    months or years after a drought has passed. Other minor amendments 
    would have clarified action to be taken by the field manager and made 
    the language concerning provisions for making decisions effective when 
    necessary to protect the resource consistent with language on that 
    provision in proposed subpart 4160. Language would have been added 
    specifying that such decisions would have remained in effect pending 
    any appeal of the decision, unless a stay were granted by the OHA. The 
    overall intent of the changes in this paragraph was to provide the 
    authorized officer with the authority needed to implement decisions to 
    close allotments or portions of allotments or modify authorized grazing 
    use when immediate action was [[Page 9932]] necessary to protect 
    rangeland resources.
        A number of commenters stated that the phase-in of reductions 
    should not be eliminated because it promotes industry stability and 
    gives livestock operators a chance to adjust their operation. Others 
    suggested that the authorized officer should restrict access for a 
    temporary period of time rather than making reductions in ``emergency'' 
    situations. Commenters also objected to removal of the terms 
    ``coordination and cooperation'' in redesignated paragraph (a) as being 
    a violation of PRIA. Others objected to involvement of the interested 
    public.
        Numerous commenters raised concerns over the lack of documentation 
    required to implement reductions in grazing use, and stated that 
    prolonged monitoring should be required. Others stated that ``full 
    force and effect'' provisions should not apply to reductions and that 
    the RACs should be consulted prior to reductions and emergency 
    closures.
        The Department will implement any increase or decrease as outlined 
    in the final rule by documented agreement or by decision of the 
    authorized officer. These documents may include a provision for a 
    phase-in period. However, in some situations, immediate action is 
    needed to protect rangeland resources, including wildlife and riparian 
    areas, because of conditions such as drought, fire, flood, insect 
    infestation or other conditions that present an imminent likelihood of 
    significant resource damage. The Department has concluded that in these 
    situations immediate corrective action is warranted, without the 
    constraints of a phase-in period. Of course, even where a decision is 
    implemented immediately, an adversely affected party would retain the 
    ability to petition the OHA for a stay of the decision.
        The Department disagrees that the provisions of this section are 
    inconsistent with any statutory requirements. These issues are covered 
    more fully above in the General Comments section of the preamble. The 
    words ``cooperation and coordination'' have been added to paragraph 
    (a). As noted at Sec. 4100.0-5, the Department has decided to use the 
    phrase ``consultation, cooperation, and coordination'' in cases where 
    broad based input into agency deliberations is sought. The Department 
    believes that such input is critical to effective management of public 
    rangeland.
        The authorized officer will make decisions about implementing 
    reductions in permitted use based on monitoring, field observations, 
    ecological site inventory or other acceptable data. The final rule at 
    4110.3-2(b) covers adequate monitoring and documentation necessary to 
    implement reductions. The Department believes that the language in the 
    rule expanding the sources of information that the authorized officer 
    can use to implement such changes is desirable to provide flexibility 
    to the process and to ensure that the authorized officer can take 
    immediate action to protect the resource, including making decisions 
    effective immediately or on a specific date, when conditions require 
    it.
        While in some specific circumstances a RAC may be involved in a 
    decision to reduce permitted use, the Department does not believe it is 
    feasible to consult the councils for every grazing management decision.
        In accordance with the above discussion, the Department has decided 
    to adopt the provision as proposed, with the following changes. The 
    term ``cooperation and coordination'' is added back into paragraph (a). 
    In paragraph (b), the phrase ``when continued grazing use poses a 
    significant risk of resource damage from these factors'' is amended to 
    read ``when continued grazing use poses an imminent likelihood of 
    significant resource damage.'' This clarifies that modifications in 
    grazing use and notices of closure can be implemented where continued 
    grazing use poses an imminent likelihood of significant resource 
    damage. Such decisions may be placed into effect upon issuance or on a 
    specified date and will remain in effect during any appeal unless a 
    stay is granted.
    Section 4110.4-2  Decrease in Land Acreage
        The proposed rule would have amended paragraph (a) by removing the 
    words ``suspend'' and ``suspension'' and by changing the term ``grazing 
    preference'' to ``permitted use'' consistent with other changes 
    throughout the proposal. As a result, decreases in public land acreage 
    available for grazing would no longer have associated forage 
    allocations carried on a permit or lease as suspended use.
        The major concerns commenters raised with respect to this section 
    involved compensation for lost range improvements and AUMs and the 
    elimination of the terms ``suspend'' and ``suspension.'' The existing 
    regulation provides for compensation to the permittee for his or her 
    contribution in the permanent range improvements developed within areas 
    that are being devoted to a public use that precludes livestock 
    grazing. Compensation is not required for the reduction or loss of 
    available livestock forage due to a change of use, which would include 
    cases of use being reduced to protect the rangelands. This provision is 
    not being changed.
        The final rule has removed ``suspend'' and ``suspension'' because 
    it does not serve the best interests of either the rangeland or the 
    operator to continue to carry suspended numbers on a permit unless 
    there is a realistic expectation that the AUMs can be increased due to 
    increased forage availability. If such numbers are carried, the 
    permittee or lessee may have an unrealistic expectation for increases 
    in AUMs in the future. In cases where the acreage is being reduced, it 
    is not likely that such an increase will occur. Therefore, there 
    appears to be no good reason to refer to suspended AUMs in the 
    regulation covering decreases in land acreage. If rangeland conditions 
    improve to the extent that increased usage is possible, the provisions 
    of Sec. 4110.3 can be used to increase permitted use accordingly.
        All decisions pertaining to a grazing permit or lease will involve 
    consultation with the affected permittee and affected interests. All 
    final decisions of the authorized officer will be subject to the 
    administrative remedies discussed in subpart 4160, including the right 
    of appeal.
        In accordance with the above discussion, the Department has decided 
    to adopt the provision as proposed.
    Section 4120.2  Allotment Management Plans and Resource Activity Plans
        The proposed rule would have amended this section by revising the 
    heading and by adding reference to other activity plans that may 
    prescribe grazing management. This provision was intended to reflect 
    BLM's belief that activity plans that provide direction for the major 
    resources and uses of a particular area are more effective management 
    tools, and are more consistent with an ecosystem approach, than are 
    single source planning documents.
        The proposed rule would have clarified that draft AMPs, or other 
    draft activity plans, could be developed by other agencies, permittees 
    or lessees, or interested citizens. This provision was intended to 
    broaden the base of participation in the planning process, and to 
    provide interested parties, including interested citizens, an 
    opportunity to facilitate the planning process through such 
    participation.
        Another proposed provision would have clarified that AMPs or other 
    activity plans, including those prepared [[Page 9933]] by other 
    parties, would not have become effective until approved by the 
    authorized officer. This provision is consistent with authority granted 
    to the Secretary by 43 U.S.C. 1752.
        Paragraph (a) would have been amended by replacing the reference to 
    district grazing advisory boards with RACs and including State resource 
    management agencies in the activity planning process. This change would 
    have been made for conformance with the proposals on subpart 1780, and 
    with the Department's intent to broaden the base of participation in 
    the grazing management process.
        Another amendment would have changed the existing provision 
    regarding the flexibility granted to permittees or lessees under an AMP 
    to specify that it would be determined on the basis of demonstrated 
    stewardship. The requirement for earning flexibility was intended as an 
    incentive for grazing operators to manage for the improvement of 
    rangeland conditions. Additionally, it was intended to recognize that 
    permits and leases operated by good stewards require less 
    administration.
        The proposed rule would have clarified that the inclusion of other 
    than public lands in an AMP or other activity plan is discretionary. 
    The use of ``shall'' in the existing regulation could have been read to 
    require inclusion of such lands.
        The amendment would also have specified that a requirement of 
    conformance with AMPs be incorporated into the terms and conditions of 
    the grazing permit or lease. This proposal would have changed a 
    provision in existing paragraph (c) which required that the plan 
    itself, rather than a requirement to conform with the plan, be included 
    in the terms and conditions of the permit or lease. This provision was 
    intended to conform with existing practice regarding how AMP decisions 
    are reflected in permits and leases.
        Proposed paragraph (c) would have been a new provision. It would 
    have provided that the authorized officer give an opportunity for 
    public participation in the planning and environmental analysis of 
    proposed AMPs affecting the administration of grazing and give public 
    notice concerning the availability of environmental documents prepared 
    as a part of the development of such plans, prior to implementing them. 
    It would also have provided that the decision document following the 
    environmental analysis would be considered the proposed decision for 
    the purposes of subpart 4160 of this part. This provision was intended 
    to streamline administrative processes by allowing BLM to combine NEPA 
    analysis with the activity plan process. Additionally, the provision 
    assists the grazing permittees and lessees by clarifying that decisions 
    regarding AMPs can be appealed through the standard appeals process 
    specified in subpart 4160.
        The Department received a number of comments on this section. Most 
    frequent comments reflected perceptions that the proposed rule would 
    eliminate the requirement that BLM ``consult, coordinate and 
    cooperate'' with the permittee. Many stated that to allow participation 
    by the interested public would severely delay the process. Others said 
    some provisions, such as using resource activity plans to serve as the 
    functional equivalents of AMPs, are outside the Secretary's 
    jurisdiction. Some respondents raised questions such as whether 
    development of the AMP was discretionary, and whether standards and 
    guidelines would be imposed retroactively on existing plans.
        A number of other comments were received on various details of the 
    process and scope of AMPs and other activity plans. These comments will 
    prove useful in developing subsequent guidance for BLM's field 
    management staff.
        The proposed rule included the term ``consultation, cooperation and 
    coordination'' in the requirements for preparing AMPs and other 
    activity plans under paragraph (a) but used the term ``consultation'' 
    in paragraph (e) pertaining to revising and terminating such plans. In 
    the rule adopted today, the term ``consultation, cooperation and 
    coordination'' is substituted for ``consultation'' in paragraph (e) and 
    remains as proposed in paragraph (a).
        The Department disagrees that involvement of the interested public 
    will delay the final outcome of the planning process. While at some 
    stages, involvement of the interested public in AMPs may slow the 
    process, their involvement also will result in fewer drawn-out protests 
    and appeals and more rapid implementation on the ground. The Department 
    intends that interested parties will be involved in all levels of 
    planning, including the development of land use plans and the 
    preparation of site-specific management activity plans such as AMPs. It 
    remains the responsibility of BLM to make timely decisions. These rules 
    do not change existing time frames processes such as protests or 
    appeals.
        The provision allowing resource activity plans to serve as the 
    functional equivalent of AMPs is not outside the Secretary's authority, 
    and the final rule retains this provision. The concept of more 
    integrated resource activity plans better meets the statutory 
    requirements of FLPMA and NEPA, provides a more efficient way to plan 
    for the management of a specified area, and allows more complete 
    analysis of public comment and cumulative effects. Activity plans that 
    serve as the functional equivalent of AMPs will meet the FLPMA 
    definition of AMPs (43 U.S.C. 1702(k) and 1752(d)) by addressing the 
    specific conditions of rangelands within the grazing allotments covered 
    by such plans.
        The Department does not intend that standards and guidelines will 
    automatically be incorporated into plans upon the effective date of 
    this rule. Rather, standards and guidelines will be incorporated into 
    individual plans as the need for modification of the plans is 
    identified. Subpart 4180 directs the authorized officer to take action 
    no later than the start of the next grazing year to initiate 
    significant progress toward rangeland health in cases where the 
    authorized officer determines that existing management practices are 
    failing to ensure significant progress toward meeting the standards or 
    toward conforming with the guidelines. Under this provision, terms and 
    conditions of existing permits could be revised, under the procedures 
    specified in new Sec. 4130.3-3, to incorporate new terms and conditions 
    to address resource condition issues. Such decisions by the authorized 
    officer will be subject to rights of appeal under subpart 4160, as will 
    decisions to adopt, terminate or modify an AMP or its functional 
    equivalent.
        In accordance with the above discussion, Sec. 4120.2 is adopted as 
    proposed with the exception of minor edits, the addition of the 
    explicit reference to other activity plans serving as the functional 
    equivalent of AMPs, and the substitution of the term ``consultation, 
    cooperation and coordination'' for the term ``consultation'' in 
    paragraph (e).
    Section 4120.3-1  Conditions for Range Improvements
        The proposed rule would have amended this section by inserting a 
    new paragraph (f) specifying that range improvement projects would be 
    reviewed in accordance with NEPA requirements, and that the decision 
    document issued as a result of that review would be considered the 
    proposed decision for purposes of subpart 4160 of this part.
        This provision would not have introduced any new requirement. 
    Rather, it would have clarified in these [[Page 9934]] regulations 
    requirements that already exist under NEPA. The provision would also 
    have ensured that the same document would have been used to satisfy 
    NEPA requirements and to provide a final--and appealable--decision to a 
    permittee or lessee. This would have prevented duplication of effort on 
    the part of the agency or the permittee or lessee.
        In effect, the provision that the NEPA decision document would have 
    served as the proposed decision of the authorized officer for purposes 
    of subpart 4160 would have directed appeals of those decisions through 
    the administrative remedies process provided in that subpart. Under the 
    proposal, that subpart would have provided an opportunity for a field 
    hearing on the facts of the case by an administrative law judge, rather 
    than requiring the appeal to go directly to the Interior Board of Land 
    Appeals. This would have streamlined the appeals process.
        The Department received few comments on this section. Most 
    expressed concern that following the NEPA process would result in 
    unnecessary delay in approving environmentally sound range improvement 
    projects, or would discourage such improvements from being made.
        The Department has decided to adopt this provision as proposed, 
    with one minor change. The term ``range improvement'' is added between 
    the words ``cooperative'' and ``agreement'' in paragraphs (b) and (e). 
    This term was added for consistency with other provisions in the final 
    rule. This change clarifies that the cooperative agreements being 
    referred to are range improvement agreements, not cooperative 
    agreements between BLM and the States, or any other type of cooperative 
    agreement.
        The Department does not expect that the NEPA review process will 
    unduly delay implementation of range improvement projects. The rule 
    retains the NEPA requirement. Following the NEPA process is a 
    requirement of law and is current practice; it is not just a 
    requirement of this regulation.
    Section 4120.3-2  Cooperative Range Improvement Agreements
        In the proposed rule, the heading of this existing section would 
    have been revised to clarify that this section deals with cooperative 
    range improvement agreements as opposed to ``cooperative agreements'' 
    with other Federal or State agencies. The proposed rule would have 
    amended this section to specify that the United States would have title 
    to all new permanent grazing-related improvements constructed on public 
    lands. The proposed section would have provided that title to temporary 
    grazing-related improvements used primarily for livestock handling or 
    water hauling could be retained by the permittee or lessee. This change 
    would have conformed with the common law practice of keeping title of 
    permanent improvements in the name of the party holding title to the 
    land, and with existing Forest Service policies. The amendment would 
    not have changed any agreements currently in effect.
        The Department received many comments on this section. Some 
    commenters expressed concern that the provisions would lead to fewer 
    range improvements and declining ranch values, range conditions and 
    wildlife populations. Others questioned if reconstructions were 
    considered new improvements and whether existing improvements would be 
    affected by the requirement that the United States retain title to 
    improvements. Many stated that the provision could afford environmental 
    groups the opportunity to take control of range improvements and felt 
    livestock operators should be consulted if improvements are planned. 
    Others raised takings questions.
        The Department has adopted a modified version of the proposal. The 
    title of the final rule is changed to clarify that the section affects 
    cooperative range improvement agreements. Paragraph (b) is revised by 
    adding examples of types of permanent range improvements that will be 
    authorized by cooperative range improvement agreements. The existing 
    language of Secs. 4120.3-2 and 4120.3-3 of the current rule has long 
    stated that the title of nonremovable improvements shall be in the name 
    of the United States and the title of removable range improvements 
    shall be in the name of the permittee or lessee, or shared in 
    proportion to the amount of contribution, in the case of situations 
    covered by Sec. 4120.3-2. This final rule clarifies further these 
    provisions regarding temporary and permanent improvements. The United 
    States will have title to new permanent range improvements. The rule 
    conforms BLM policy with the common law practice of keeping title of 
    permanent improvements in the name of the party holding title to the 
    land, and with current Forest Service administrative provisions.
        Additionally, the adopted language clarifies that the provision 
    applies to cooperative range improvements agreements after the 
    effective date of the rule. The final rule does not adopt proposed 
    paragraph (c), regarding temporary structural range improvements, as 
    that paragraph duplicates requirements in final Sec. 4120.3-3, Range 
    improvement permits.
        Finally, a statement is added to clarify that any contribution made 
    by a permittee or lessee to such a permanent improvement will be 
    documented by BLM to ensure proper credit for the purposes of 
    Sec. 4120.3-5, Assignment of range improvements, and Sec. 4120.3-6(c), 
    Removal and compensation for loss of range improvement.
        The Department disagrees that this provision will result in fewer 
    range improvements and declining range values, range conditions, and 
    wildlife populations. The Forest Service's experience does not support 
    this contention. Improvements add to the management effectiveness and 
    the value of the ranch operation. Any contributions the permittee makes 
    to range improvements are recognized and documented. The incentive for 
    a permittee to invest in range improvements is that it is in his or her 
    financial interest to improve use of the grazing allotment.
        Reconstruction within the bounds of the original range improvement 
    permit will not require a new agreement. However, work that is outside 
    of the original range improvement permit or authorization will be 
    considered a new improvement. Determinations as to whether a particular 
    instance is a reconstruction or a new construction will be made on a 
    case-by-case basis.
        The Department disagrees that this provision will allow other 
    parties to take control of range improvements. New permanent range 
    improvements will be issued by cooperative range improvement agreement 
    with the permit holder, and will be in the name of the United States, 
    regardless of who the permittee is. Responsibilities of each 
    cooperator, the grazing permit holder and the United States will be 
    documented in the cooperative range improvement agreement.
        The provision does not limit the Secretary's authority to cooperate 
    with other agencies and organizations to plan, develop, and maintain 
    improvements on the public lands to the benefit of other public land 
    resources. Where such developments may affect livestock operations, 
    permit holders will be consulted. Decisions to determine the need for 
    range improvements will not be affected by this provision. The rule 
    continues the policy that range improvement needs may be identified by 
    the operator, BLM, or interested members of the public. The 
    responsibility for cost to be borne by the [[Page 9935]] respective 
    cooperators in new range improvement projects will be described in the 
    cooperative range improvement agreement, and will be determined on a 
    case-by-case basis.
        For discussion of takings issues, see the General Comments section 
    of this preamble.
    Section 4120.3-3  Range Improvement Permits
        Paragraph (a) of this section would have been amended to change 
    existing provisions authorizing permittees or lessees to apply for a 
    range improvement permit to install, use, maintain, or modify range 
    improvement projects. Two changes would have been made to this 
    provision. First, the reference to permanent improvements would have 
    been deleted. This change would have been consistent with the proposed 
    revisions to Sec. 4120.3-2 above, which would have consolidated all 
    provisions regarding permanent improvements in that section. Secondly, 
    the phrase ``within his or her designated allotment,'' which referred 
    to improvements needed to achieve management objectives, would have 
    been changed to ``established for the allotment in which the permit or 
    lease is held.'' This change was intended to provide clarity to the 
    provision and to remove the gender references in the existing text.
        Existing paragraph (b) would have been amended to add a list of 
    types of improvements the Department considers to be temporary. The 
    amendment would have clarified that permanent water improvement 
    projects would be authorized through cooperative range improvement 
    agreements consistent with existing Department policy. The proposed 
    rule would have clearly established that title to permanent range 
    improvements authorized after the effective date of the rule would be 
    held by the United States. It would also have added a companion 
    provision specifying that a permittee's or lessee's contribution to an 
    improvement would have been documented by the authorized officer, to 
    ensure proper credit for purposes of Secs. 4120.3-5 and 4120.3-6(c).
        The proposed rule would have removed existing paragraph (c). The 
    proposal would have created a new paragraph (c). This paragraph would 
    have provided that the permittee or lessee must cooperate with other 
    operators that may be temporarily authorized to use forage. 
    Furthermore, this new provision would have specified that a permittee 
    or lessee would be reasonably compensated for the use and maintenance 
    of improvements and facilities by the operator who has an authorization 
    for temporary grazing use; the authorized officer may resolve questions 
    concerning compensation. Where a settlement cannot be reached, the 
    authorized officer would issue a temporary grazing authorization to 
    compensate the preference permittee or lessee. The intent of this 
    proposal was to protect the interest of the permittee or lessee in 
    range improvements in those infrequent cases where a third party makes 
    use of the allotment.
        Many commenters questioned whether the proposal was within the 
    authority of TGA. They also stated that the provisions pertaining to 
    title of range improvements would remove incentives for permittees to 
    make improvements, would make it difficult to obtain financing, would 
    adversely affect wildlife and local economies because fewer 
    improvements would be built, and could jeopardize existing ``Section 
    4'' (TGA) permits.
        Other commenters were concerned that the Department would require 
    permittees or lessees to construct range improvements at their expense. 
    Some commenters asked what requirements there would be for maintenance. 
    They also expressed concern about whether there would be a problem of 
    access to improvements to which they did not have title.
        Commenters expressed opposition to provisions in proposed paragraph 
    (c) because, in their view, it seemed to be a new provision to allow 
    nonpermittees to graze within another's grazing allotment.
        Under the provisions adopted here, livestock operators may hold 
    title to removable and temporary improvements authorized under range 
    improvement permits. Such improvements are largely funded by livestock 
    operators.
        The Department disagrees with the assertion that the provisions of 
    this section are outside the Secretary's authority as established in 
    TGA. Section 4120.3-3, as proposed and adopted in this final rule, 
    implements the provisions of TGA found at 43 U.S.C. 315. The Department 
    also disagrees with the contention that the title provisions will 
    significantly affect either the amount of permittee and lessee 
    contributions to range improvement or their ability to secure financing 
    for range improvement. The installation of range improvements will 
    remain in the permittee or lessee's interest as long as the improvement 
    assists in the management of the livestock operation or results in an 
    improvement in the condition and long-term productivity of the range. 
    The Forest Service has long had a policy of retaining title to 
    permanent improvements and has not observed that private contribution 
    has been discouraged. Similarly, financial institutions, in reviewing 
    loan applications, consider the value of the range improvement in terms 
    of how the improvements will affect the profitability of the ranch 
    operation.
        This rule affects the title of improvements authorized after the 
    effective date of this rule. Title to currently authorized improvements 
    will not be affected.
        The provisions pertaining to the use of range improvements by 
    parties temporarily authorized to use an allotment would not have 
    established new policy toward the issuance of nonrenewable permits. 
    Proposed paragraph (c) would merely have made explicit how the 
    renewable permit or lease holder's interests in range improvements 
    would be protected in those instances where another party is authorized 
    to graze within the allotment on a temporary nonrenewable basis.
        In accordance with the above discussion, the Department has decided 
    to adopt this section as proposed, with one major change. In the rule 
    as adopted, the Department has removed reference to permanent water 
    developments from this section. The provision dealing with water 
    improvements and their authorization through cooperative range 
    improvement agreements is moved to final Sec. 4120.3-2, thus 
    consolidating all provisions regarding permanent improvements in that 
    section.
        The existing language of Secs. 4120.3-2 and 4120.3-3 of the current 
    rule has long stated that the title of nonremovable improvements shall 
    be in the name of the United States and the title of removable range 
    improvements shall be in the name of the permittee or lessee. This 
    final rule clarifies further these provisions regarding temporary and 
    permanent improvements. Because the discussion of permanent 
    improvements no longer occurs in this section, the provision regarding 
    documentation of a permittee's or lessee's contributions to such 
    improvements is no longer pertinent to new range improvement permits. 
    However, the provision for documenting contributions is added to 
    Sec. 4120.3-2.
        Two other minor changes were made in the final language. The 
    surplus word ``established'' is not included in final paragraph (a). 
    For clarity, the Department has added ``structural'' as a modifier of 
    ``temporary improvements'' in final paragraph (b). [[Page 9936]] 
    Section 4120.3-8  Range Improvement Fund
        The proposed rule would have added a new section to this part that 
    addressed the distribution and use of the range betterment funds 
    appropriated by Congress through Section 401(b) of FLPMA for range 
    improvement expenditure by the Secretary. The proposed amendment would 
    have provided for distribution of the funds by the Secretary or 
    designee; one-half of the range improvement fund would have been made 
    available to the State and District from which the funds were derived, 
    the remaining one-half would have been allocated by the Secretary or 
    designee on a priority basis. All range improvement funds would have 
    been used for on-the-ground rehabilitation, protection and improvements 
    of public rangeland ecosystems. Current policy requires the return of 
    all range improvement funds to the District from which they were 
    collected. The BLM has found this prevents use of the funds in areas 
    where they are most needed and results in some offices experiencing 
    difficulty expending available funds efficiently. The proposed 
    amendment would have corrected the imbalance by ensuring that the funds 
    are distributed on a priority basis.
        The proposed rule would have clarified that range improvement 
    includes activities such as planning, design, layout, modification, and 
    monitoring/evaluating the effectiveness of specific range improvements 
    in achieving resource condition and management objectives. Maintenance 
    of range improvements and costs associated with the contracting of 
    range improvements was added to the list of activities for which range 
    improvement funds may be used. Maintenance was an allowable use of 
    range improvement funds prior to a policy change made in 1982.
        The proposed rule would have required consultation with affected 
    permittees, lessees, and the interested public during the planning of 
    range development and improvement programs. RACs would also have been 
    consulted during the planning of range development and improvement 
    programs, including the development of budgets for range improvement 
    and the establishment of range improvement priorities. The provisions 
    are adopted as proposed.
        The Department received a few comments on this section. Most 
    concerns were about how funds would be expended. Some commenters 
    asserted that the proposal was inconsistent with the Department's 
    statutory authority, that all funds, not just a portion, should return 
    to the District or State from which they came and that all funds should 
    go to construction, not to planning or projects not directly related to 
    livestock production. Others stated that all funds should be used for 
    ecosystem enhancement projects or supported the concept that some funds 
    should be spent on projects to rehabilitate the range and distributed 
    on the basis of priority needs.
        Commenters also stated there should be requirements to spend funds 
    in a cost-effective manner. Some supported involvement of the RACs and 
    the interested public in the decisionmaking process on expenditure of 
    the funds. Other commenters asserted that the change will result in 
    fewer improvements being constructed, and that BLM should not require 
    permanent range improvements be constructed at the expense of a 
    permittee or lessee as a requirement to obtain or hold a permit or 
    lease.
        The Department's authority for this provision is found in Section 
    401 of FLPMA, which directs that 50% of the monies put in the range 
    betterment account be authorized to be appropriated and ``* * * made 
    available for use in the district, region, or national forest from 
    which such monies were derived * * *'' It further provides that the 
    remaining 50% ``* * * shall be used for on-the-ground range 
    rehabilitation, protection, and improvements as the Secretary concerned 
    directs.'' While it has been common practice for the Secretary to 
    return the discretionary 50% to the District of origin in recent years, 
    that is not required in FLPMA. The Department intends to allocate the 
    discretionary 50% on a priority basis to better meet BLM management 
    objectives and respond to resource condition concerns.
        FLPMA also provides that funds can be expended on projects other 
    than those directly related to livestock-oriented projects. The act 
    specifies that ``* * * such rehabilitation, protection, and 
    improvements shall include all forms of range land betterment including 
    but not limited to, seeding, and reseeding, fence construction, weed 
    control, water development, and fish and wildlife habitat enhancement * 
    * *'' FLPMA also allows the expenditure of funds for activities 
    necessary to put projects on the ground such as project planning, 
    design, layout, modification and monitoring. An important goal of the 
    Department in expending the range betterment fund will be to improve 
    the health of the public rangelands. However, all uses authorized by 
    FLPMA will remain valid under this rule including improvements that 
    primarily benefit livestock management.
        FLPMA does not specify in what proportions the funds should be 
    spent. The Department believes that the provision, adopted today, 
    providing the maximum flexibility allowed by law in the distribution 
    and use of these funds, will improve the effectiveness of the program 
    and result in increased overall improvement to the public rangelands. 
    Grazing advisory boards received an accounting of the fund 
    expenditures. It is anticipated that RACs will be afforded the same 
    information.
        Because under the rule as adopted the Department will be able to 
    expend some funds on a priority basis, rather than returning 100% of 
    the funds to the State or District of origin, the distribution of range 
    improvement projects may shift somewhat. However, this does not mean 
    that the total number of projects will decline. The BLM will not 
    require livestock operators to fund the construction of range 
    improvements. Operators' participation in the development of range 
    improvements will be voluntary. However, there may be some cases where 
    BLM will have to alter grazing use in the absence of needed 
    improvements.
        In accordance with the above discussion, the Department has decided 
    to adopt the rule as proposed.
    Section 4120.3-9  Water Rights for the Purpose of Livestock Grazing on 
    Public Lands
        Today's action adopts with one addition this section of the 
    proposed rule which provides that the United States will acquire, 
    perfect, maintain, and administer water rights obtained on public land 
    for livestock grazing on public land in the name of the United States 
    to the extent allowed by State law. This section is prospective, 
    clarifies BLM's water rights policy for livestock watering on public 
    lands, and makes BLM policy consistent with that of the Forest Service.
        The section does not create any new Federal reserved water rights, 
    nor does it affect valid existing rights. The provisions of this final 
    rule are not intended to apply to the perfection of water rights on 
    non-Federal lands. Any right or claim to water on public land for 
    livestock watering on public land by or on behalf of the United States 
    remain subject to the provisions of 43 U.S.C. 666 (the McCarran 
    Amendment) and Section 701 of FLPMA (43 U.S.C. 1701 note; disclaimer on 
    water rights). Finally, the proposal does not change 
    [[Page 9937]] existing BLM policy on water rights for uses other than 
    public land grazing, such as irrigation, municipal, or industrial uses.
        Some States, such as Wyoming, grant public land livestock grazing 
    water rights in the name of the landowner but also, in situations where 
    the grazing lessee or permittee of State or Federal public land applies 
    for a water right on that land, automatically include the State or 
    Federal landowner as co-applicant. After consideration of public 
    comment and further analysis, we have determined that co-application or 
    joint ownership will be allowed where State policy permits it; for 
    example, the Wyoming policy is consistent with this final rule.
        Some comments questioned whether the language violates State or 
    Federal law. Some commenters questioned whether the language would deny 
    permittees the full use of water and what the impact would be on 
    transferring the point of use of water from or to public lands. Some 
    commenters suggested that the regulation should state that BLM will not 
    have special priority in water adjudications and that the regulation 
    does not affect water on private lands.
        The Department's intent in adopting this section is to provide 
    consistent water policy guidance to BLM personnel. It is not the 
    Department's intent to create any new Federal reserved water right, nor 
    does it affect valid existing rights. It has been BLM's policy to seek 
    water rights under State substantive and procedural requirements; the 
    language adopted today does not alter that policy.
        The language adopted today clarifies that the United States will 
    acquire, perfect, maintain, and administer water rights obtained on 
    public land for livestock grazing on public land in the name of the 
    United States to the extent allowed by State law. Questions such as 
    qualified applicants, what constitutes beneficial use, and quantity and 
    place of use are addressed through State procedural and substantive 
    law. Thus, the Department is not attempting, through the language 
    adopted today, to prejudge the outcome of proceedings under State water 
    law. For the same reason, the Department has not adopted suggestions to 
    include language relating to priority of rights or water rights on 
    private lands. These matters are addressed by State substantive and 
    procedural requirements.
        Other comments questioned whether the provision would have a 
    negative impact on adjacent private property, wildlife, and range 
    conditions. Clarification of BLM water rights policy regarding 
    livestock watering on public lands should not have a negative impact on 
    adjacent property. The provision does not address water rights on non-
    Federal lands. The language adopted today also does not change existing 
    BLM policy on water rights for uses other than public land grazing, 
    such as irrigation, municipal, or industrial uses. The Department has 
    concluded that wildlife and range conditions will be benefited by 
    clarifying BLM water policy. It is the Department's intent in adopting 
    the language of this section to promote the use of the public lands on 
    a sustained yield basis for multiple use purposes.
    Section 4120.5  Cooperation in Management
        The proposed rule would have added a new section on cooperation in 
    management to recognize and regulate cooperation with, among others, 
    State, county, Indian tribal, local government entities and Federal 
    agencies. The provision is adopted as proposed.
        Very few comments were received on this section, and most 
    commenters combined their comments with comments on Sec. 4120.5-1. Some 
    commenters requested that ``coordinate and consult'' be added after 
    ``cooperate'' and that the Department remove references to 
    ``institutions, organizations, corporations, associations, and 
    individuals.'' Others asked that the Department give special 
    consideration to the customs, culture and economic impact of projects 
    on existing local communities.
        The Department will ensure public involvement and cooperation, in 
    the management of the public lands to the maximum extent possible. All 
    citizens have a stake in the management of the public lands. FLPMA is 
    very specific as to the requirement for cooperation with local land use 
    planning. It requires the Secretary to coordinate land use planning and 
    management activities with State and local land use planning and 
    management programs and directs that land use plans shall be consistent 
    with State and local plans to the maximum extent possible under Federal 
    law and the purpose of the Act.
        The section deals with the requirement for cooperation in 
    management. There is no basis to add the terms ``coordinate and 
    consult.'' Section 315 of TGA specifically calls for ``cooperation'' 
    with agencies engaged in conservation or propagation of wildlife, local 
    associations of stockmen, and State land officials.
        All proposed project and planned actions undertaken to implement 
    these regulations will require more local level assessments. 
    Regulations dealing with impact assessment require consideration of 
    socio-economic impacts.
    Section 4120.5-1  Cooperation With State, County, and Federal Agencies
        This section would have recognized existing cooperation with State 
    cattle and sheep boards, county and local noxious weed control 
    districts, and State agencies involved in environmental, conservation, 
    and enforcement roles related to these cooperative relationships. The 
    TGA, Noxious Weed Control Act, FLPMA, PRIA and other statutes and 
    agreements require cooperation with State, county and local 
    governments, and Federal agencies.
        Many commenters wanted the Department to strengthen the language 
    requiring cooperation with local and county governments and their land 
    use planning efforts. Other commenters wanted the list to include 
    private land owners, only groups that can prove an affected interest in 
    the livestock business or only individuals who have invested as much 
    money as the livestock operators. Many commenters requested that the 
    Department strike references to the Wild Free-Roaming Horse and Burro 
    Act and expressed that Animal Damage Control and similar predator 
    control agencies should be listed as a cooperating partner.
        Other commenters wanted the Department to show greater deference to 
    State wildlife agency decisions on critical range for wildlife species, 
    to strengthen cooperation on noxious weeds, and to use its authority to 
    reduce the spread of noxious weeds by requiring certified weed free 
    forage and by spending more rangeland improvement funds on weed 
    control.
        The Department believes that the provision as proposed adequately 
    addresses its legal responsibilities and its desire to cooperate with 
    State, county and Federal agencies, and has adopted it with no changes.
        This section requires cooperation in management. It does not deal 
    with the Department's responsibilities to consult with permittees or 
    lessees or other private parties. The section derives in part from the 
    statutory provision in section 315h of TGA, which requires the 
    Secretary to provide, by suitable rules, for cooperation with local 
    associations of stockmen, State land officials, and official State 
    agencies engaged in conservation or propagation of wildlife interested 
    in the use of the grazing districts. While other authorities would 
    allow the Secretary to expand the reach of this provision, under TGA 
    the Secretary could not limit it to those with [[Page 9938]] an 
    ``affected interest.'' That terminology relates to different statutory 
    provisions, and is not germane here.
        Additionally, FLPMA is very specific as to the requirement for 
    cooperation with local land use planning. It requires the Secretary to 
    coordinate land use planning and management activities with State and 
    local land use planning and management programs and directs that land 
    use plans shall be consistent with State and local plans to the maximum 
    extent consistent with Federal law and the purpose of the Act.
        The Department will ensure public involvement and cooperation, 
    including State wildlife agency input, in the management of the public 
    lands to the maximum extent possible. However, it is not appropriate to 
    single out wildlife agencies for greater deference in these 
    regulations. On a case-by-case basis, such deference may be 
    appropriate.
        The specifics of noxious weed programs are not germane to this 
    section. It is the intent of this rangeland management effort to 
    improve the Department's ability to address such issues, including 
    through increased cooperation with State agencies responsible for weed 
    control.
    Subpart 4130--Authorizing Grazing Use
        Many sections of subpart 4130 have been redesignated from the 
    existing CFR section identifiers. These changes are intended to put the 
    various sections into more logical groupings. The following table shows 
    the relationship between section numbers in the existing rules and 
    section numbers in the rule adopted today:
    
    ------------------------------------------------------------------------
                                                                  Final rule
                           Old CFR section                          section 
    ------------------------------------------------------------------------
    4130.1......................................................    4130.1-1
    4130.1-1....................................................    4130.4  
    4130.1-2....................................................    4130.1-2
    4130.2......................................................    4130.2  
    4130.3......................................................    4130.5  
    4130.4......................................................    4130.6  
    4130.4-1....................................................    4130.6-1
    4130.4-2....................................................    4130.6-3
    4130.4-4....................................................    4130.6-4
    4130.5......................................................    4130.7  
    4130.6......................................................    4130.3  
    4130.6-1....................................................    4130.3-1
    4130.6-2....................................................    4130.3-2
    4130.6-3....................................................    4130.3-3
    4130.7......................................................    4130.8  
    4130.7-1....................................................    4130.8-1
    4130.7-2....................................................    4130.8-2
    4130.7-3....................................................    4130.8-3
    4130.8......................................................    4130.9  
    ------------------------------------------------------------------------
    
    In addition to changes in many section numbers, the headings of several 
    of the sections have been revised to provide more descriptive titles. 
    The following discussion will use the new numbers and cross reference 
    the old numbers.
    Section 4130.1  Applications
        A new title, Applications, is added at Sec. 4130.1, to improve the 
    logical structure for the subpart.
    Section 4130.1-1  Filing Applications (Formerly Section 4130.1)
        In the proposal, there would have been two minor changes in this 
    section from the existing rule. ``Conservation use'' would have been 
    substituted for ``nonuse'' in the parenthetical phrase to clarify that 
    such use must be specified in the application. Another new phrase would 
    have specified that applications for annual grazing authorizations, 
    which in the proposal included active grazing use and temporary nonuse, 
    also had to be filed with BLM.
        The Department received very few comments on this section. The few 
    comments that the Department did receive concerned the concept of 
    ``conservation use.'' This term is discussed at Sec. 4130.2.
        Upon further consideration, the Department believes that 
    substituting ``conservation use'' for ``nonuse'' may be confusing, 
    because conservation use is actually a subcategory of active use. 
    Furthermore, the meaning of the other phrase proposed to be added to 
    this section can be covered by existing language. Accordingly, the 
    Department has decided not to finalize the proposed changes to this 
    section. However, to improve the structure and logic of the subpart, 
    and to clarify the purpose of this section, it is retitled, ``Filing 
    Applications.''
    Section 4130.1-2  Conflicting Applications (Section Number Remains the 
    Same)
        The proposed rule would have amended paragraph (b) of this section 
    to expand the criteria used in evaluating conflicting applications to 
    include the applicant's ability to provide for proper use of rangeland 
    resources. When two or more otherwise qualified applicants apply for 
    the same permit or lease, such considerations are legitimate methods of 
    determining which applicant should be selected.
        The new criteria would have promoted BLM's ability to award permits 
    to good stewards of public lands in cases where there were competing 
    applicants by taking into account the applicant's ability to manage the 
    land. The criteria included the applicant's history of compliance with 
    the terms and conditions of Federal and State grazing permits and 
    leases.
        The few comments that the Department received on this section 
    addressed primarily the expansion of the criteria to include the 
    applicant's history of compliance. Others inquired about additional 
    definitions.
        The Department declines to accept the commenters' suggestions to 
    define additional terms because they are defined by common usage in 
    rangeland management or law.
        Although TGA does not specifically deal with competing 
    applications, the Department does not believe that Congress, in passing 
    TGA, intended the Department to issue grazing permits to documented 
    violators of statutory provisions related to grazing use. Additionally, 
    improvement of the rangeland under a specific permittee or lessee's 
    livestock management is a valid factor to be considered, when 
    evaluating conflicting applications. Furthermore, this review should 
    extend to all persons who control a permit or lease, not just the 
    specific applicant.
        In accordance with the above discussion, the Department has decided 
    to adopt this section as proposed.
    Section 4130.2  Grazing Permits or Leases (Section Number Remains the 
    Same)
        Under the proposed rule, permits and leases would have continued to 
    be offered for 10-year terms except in specified circumstances. The 
    proposed rule would have clarified that all grazing permits and leases 
    issued, including the transfer or renewal of permits and leases, would 
    have included terms and conditions addressing the national requirements 
    and standards and guidelines proposed under subpart 4180, as well as 
    terms and conditions establishing allowable levels, seasons and 
    duration of use, and other terms and conditions that would assist in 
    achieving management objectives, provide for proper range management, 
    or assist in the orderly administration of the public rangelands.
        The proposal also would have clarified the requirements for 
    consultation with interested parties prior to the issuance or renewal 
    of grazing permits and leases. The proposal also would have clarified 
    that the provision prohibiting the offer or grant of permits and leases 
    when the applicant refuses to accept the terms and conditions of the 
    offered permit or lease would have applied to applicants for renewals 
    and new permits and leases.
        The proposed rule also would have clarified the granting of 
    conservation use and temporary nonuse. Conservation use would have been 
    established as one of the allowable uses a permittee or lessee may be 
    granted, when in conformance with applicable [[Page 9939]] land use 
    plans, activity plans and standards and guidelines. Finally, the 
    proposed rule would have provided that forage made available as a 
    result of temporary nonuse may be authorized for temporary use by 
    another operator, although forage used for conservation purposes would 
    not be available to other livestock operators.
        The Department received numerous comments on this section. Major 
    themes expressed in the comments were objections to conservation use, 
    concern that expanded public involvement would negatively affect 
    applicants for permits and leases, and opposition to what was perceived 
    as provisions to limit permit and lease tenure.
        Many commenters expressed objections to the proposal for 
    conservation use, asserting that conservation use would hurt rangelands 
    and should only be allowed where scientific data demonstrates that rest 
    from grazing will benefit the land. Many held the perception that 
    conservation use would be required by the authorized officer. Others 
    thought the proposal would remove the requirement for base property, 
    would jeopardize water rights, would result in inadequate maintenance 
    of range improvements, would reduce tax revenues, should require 
    payment of grazing fees for conservation use, would lead to reduced 
    fees available for rangeland improvements, would adversely affect 
    operators on isolated or scattered public lands, and would result in 
    purchase of permits for conservation purposes. Others asserted that 
    conservation use was a closing of the range that would require 
    following certain notice and comment requirements of FLPMA, while still 
    others thought conservation use should be offered for a term of greater 
    than 10 years. Some commenters thought that allotments that are not 
    being grazed should be retired or reallocated rather than placed in 
    conservation use. Finally, some comments were concerned that 
    conservation use would be severely limited by existing land use plans 
    because the concept is new and has not been considered in past planning 
    efforts.
        Considerable concern was expressed about the addition of public 
    involvement prior to the issuance or renewal of grazing permits and 
    leases. Some commenters opposed the expansion of public input 
    opportunities on the grounds that such opportunities are not part of 
    making decisions in other resource programs and that grazing decisions 
    would be unduly delayed to the detriment of the permittee and lessee. 
    Others suggested that the requirement to consult should be changed to 
    ``consultation, coordination, and cooperation.'' Some commenters 
    believed that public input should only be made part of NEPA analysis 
    and planning efforts affecting grazing. Others stated that authorized 
    officers should be able to issue or renew permits to permittees who 
    demonstrate good stewardship without input from the public.
        Some commenters held the perception that the proposed rule would 
    significantly affect the term of permits and were concerned that 
    decisions to issue permits and leases for terms of less than 10 years 
    could be subjective and unfair. Others asserted that terms of less than 
    10 years would be contrary to FLPMA while still others suggested that 
    only five-year permits and leases should be offered to poor stewards. 
    Still others suggested that permits should be made available for 
    competitive bid at the end of the 10-year term.
        A number of respondents suggested provisions pertaining to 
    temporary nonuse should be more flexible, that decisions to not make 
    livestock use should be left to the ranchers, and that leaving forage 
    placed in nonuse available to other applicants would discourage good 
    stewards from resting areas (i.e., others would reap the benefits of 
    the range the permittee protected).
        Some concern was expressed about the provisions allowing the 
    authorized officer to deny permits and leases to applicants who refuse 
    to accept terms and conditions. Some commenters believed this provision 
    would result in ``arbitrary'' terms and conditions. Some commenters 
    suggested a one year continuance of a permit where a permittee or 
    lessee seeking renewal refuses to accept proposed terms and conditions 
    in order to provide time to reach agreement.
        Some reviewers suggested a review to determine ``suitability'' of 
    the range to support livestock grazing should be required prior to 
    permit or lease issuance and offered criteria to be followed. Some 
    commenters asserted that issuance of 10-year permits requires NEPA 
    compliance and should be subject to administrative appeal, and that 
    annual authorizations to be made in the absence of approved activity 
    plans should be subject to administrative appeal.
        Many comments received in this section that pertained to the 
    definition of ``temporary nonuse'' are addressed at Sec. 4100.0-5.
        The Department disagrees with assertions that conservation use will 
    be detrimental to the health of the land. Existing data should 
    generally be adequate to make conservation use decisions. Conservation 
    use will only be approved when it is found to be in conformance with 
    land use plans and when it is determined it will promote resource 
    protection or enhancement. This determination may require additional 
    data in a few cases but the Department anticipates that available data 
    and input from the permittee or lessee and others will usually prove 
    sufficient. In addition, allotments placed in conservation use will be 
    monitored in a fashion similar to other allotments to determine whether 
    such use is consistent with standards and guidelines, and established 
    resource management objectives. These requirements, as well as the 10-
    year limit on permits specifying conservation use, will discourage 
    persons from obtaining permits for the sole purpose of placing them in 
    conservation use.
        Conservation use is requested by the permittee and approved by the 
    authorized officer based on the provisions in the applicable land use 
    plan. The BLM will not impose conservation use on an unwilling 
    permittee. Conservation use must be included as part of an application 
    by a permittee or lessee and must be found to be consistent with the 
    land use plan. Appropriate terms and conditions will be attached to 
    permits that specify conservation use, and permittees will be subject 
    to all applicable requirements under the grazing program rules. This 
    includes the requirement for base property. See discussion of 
    Sec. 4110.2-1.
        Whether placing all or portions of allotments in conservation use 
    will affect water rights will depend on the applicable State laws. 
    However, resting grazing land is a commonly accepted grazing practice. 
    Permit and lease holders possessing rights to water, as well as BLM, 
    will need to consider potential effects on water rights in deciding to 
    apply for or approve conservation use.
        With regard to maintenance and operation of range improvements 
    where the forage has been devoted to conservation use, the Department 
    intends that in most, if not all, cases, permittees will be required to 
    maintain improvements during the term of the conservation use. 
    Requirements for maintaining range improvements will be made a 
    condition of any permit specifying conservation use. Occasionally, 
    where an existing improvement enhances neither the goals of 
    conservation use nor the goals of grazing use or any other multiple 
    use, maintenance may not be required. Depending upon the circumstances, 
    specific activities to improve range [[Page 9940]] conditions might 
    also be incorporated in the terms or conditions of a permit.
        Significant reductions in tax revenues or available range 
    improvement funds are not expected to result from conservation use. 
    While grazing fees will not be collected for conservation use, since no 
    forage is being consumed, the Department considers that the benefits to 
    be derived by the conservation use will offset the relatively minimal 
    decrease in grazing receipts. The FEIS analyzes the economic effects of 
    the various management alternatives considered in arriving at this 
    final rule.
        Concerning the perceived problems associated with scattered 
    intermingled public lands, conservation use is at the option of the 
    permittee or lessee subject to approval of BLM. If intermingled lands 
    create a problem for the permittees or lessees, they may decide not to 
    apply for conservation use.
        The Department disagrees that conservation use constitutes a 
    ``closing of the range'' that is subject to notice and comment 
    requirements of FLPMA. Presumably the commenter was referring to 
    requirements involved when a major use is eliminated from very large 
    tracts of public land (43 U.S.C. 1712); however, this statutory 
    provision does not pertain to conservation use which does not 
    constitute an exclusion of a major use. Conservation use is a grazing 
    management practice and does not constitute a permanent retirement of a 
    grazing allotments. Decisions to retire grazing allotments are 
    considered through BLM's land use planning process.
        The 10-year limitation on conservation use is consistent with the 
    statutory requirements for permit limitations. As adopted today, 
    conservation use could be approved for up to 10 years. FLPMA (43 U.S.C. 
    1752(a)) requires that grazing permits or leases be issued for a term 
    of 10 years or, in circumstances specified at 43 U.S.C. 1752(b), less. 
    This limit also recognizes that conservation oriented objectives may be 
    met or revised and the forage may then be re-allocated for use by 
    livestock. This also is the rationale for why the grazing privilege is 
    not cancelled or ``retired'' or why the area is not closed to livestock 
    grazing.
        To clarify how a permittee can change back to active use, the final 
    rule is modified from the proposal to include conservation use in 
    Sec. 4130.4(b), ``Approval of changes in grazing use within the terms 
    and conditions of permits.''
        In regards to the comment that the ability to authorize 
    conservation use will be severely limited because current land use 
    plans don't consider conservation use specifically, it is not a 
    requirement that conservation use be explicitly addressed in plans. 
    Rather, it must be found to conform with the land use plan. The 
    Department believes that conservation use will conform with land use 
    plans in most cases.
        For responses to general comments concerning public involvement 
    please see Secs. 1784.0-5 and 4100.0-5. Analysis of permit or lease 
    issuance currently requires NEPA compliance which in turn provides for 
    broad public input. In addition, issuance or denial of an application 
    constitutes a decision of the authorized officer and, as such, is 
    protestable and appealable under subpart 4160. Careful consideration of 
    public input early in the process for issuing or renewing permits 
    should minimize the time spent in resolving protests and appeals. In 
    response to comments, consultation, coordination, and cooperation is 
    inserted in the language adopted today.
        Concerning the comments that expressed concerns over permit tenure, 
    the proposed rule and the rule being adopted today vary little from the 
    existing rule. The principal change pertaining to permit tenure that 
    was proposed was establishing permit and lease terms to coincide with 
    the terms of any base property leases. The authority for this and other 
    tenure provisions is clearly established by FLPMA (43 U.S.C. 1752(b)) 
    which states permits and leases may be issued for terms less than 10 
    years when determined to be ``* * * in the best interest of sound land 
    management.'' Decisions to approve or deny a permit or lease 
    application are appealable under subpart 4160. The Department does not 
    agree with the suggestions to end preference for renewal in favor of 
    competitive bidding. Given the intermingled patterns of some public 
    lands, statutory provisions pertaining to renewal of permits, and 
    administrative obstacles, competitive bidding would not serve as a 
    viable option in many instances. Competitive bidding for permits and 
    leases was analyzed in the FEIS.
        The rule as proposed and adopted today provides a great deal of 
    flexibility to permit and lease holders in terms of temporary nonuse. 
    Under this rule, applications for temporary nonuse will generally be 
    approved. Where the limitations placed on temporary nonuse (maximum of 
    three years and open to other applicants) prevent the permittee or 
    lessee from meeting their needs, the option of applying for 
    conservation use remains.
        The provision that applicants who refuse to accept the terms and 
    conditions of the offered permit or lease will be denied will not 
    result in arbitrary terms and conditions. The general requirements of 
    the previous rule for determining appropriate terms and conditions have 
    been retained in this rule. Also, should the applicant believe terms 
    and conditions are not appropriate, the applicant may appeal the 
    decision of the authorized officer under subpart 4160. If, after 
    communication with the involved parties, the decision to deny or 
    approve an application is appealed, the authorized officer would have 
    the option to issue a temporary nonrenewable permit pending resolution 
    of the appeal.
        The Department has chosen not to incorporate suggestions pertaining 
    to suitability determinations prior to permit or lease issuance. FLPMA 
    sets forth specific factors BLM must consider in connection with land 
    use planning and use authorizations. A rigid suitability review is not 
    specifically required by FLPMA. Moreover, the process associated with 
    land use planning and decisions on use authorizations, including NEPA 
    compliance and application of standards and guidelines, adequately 
    address concepts of suitability. The fundamentals of rangeland health, 
    guiding principles for State or regional standards and guidelines, and 
    the fallback standards and guidelines, presented in subpart 4180 of 
    this final rule, will focus on attaining and maintaining healthy 
    rangelands.
        The use of suitability determinations was considered in the FEIS 
    under the alternative titled Environmental Enhancement. Readers are 
    encouraged to review the discussion of suitability in that document.
        This rule will not change existing NEPA implementation procedures. 
    As stated above, decisions under this section are appealable under 
    subpart 4160. Appealable decisions include the issuance or denial of 
    permits and leases and modification of terms and conditions. As 
    explained at Sec. 4130.4, annual ``authorizations'' are merely 
    validations that the requested use falls within the terms and 
    conditions of the permit or lease. Normally, they do not require 
    further NEPA analysis or public input. However, issuance of a grazing 
    permit or lease, even a one-year or nonrenewable permit or lease, does 
    not all under the provisions of the new Sec. 4130.4, and would 
    therefore be subject of NEPA analysis, consultation requirements, and 
    the right of protest and appeal. [[Page 9941]] 
        In accordance with the above discussion, the Department has decided 
    to adopt this section as proposed except for replacing ``consultation'' 
    with ``consultation, cooperation and coordination'' in reference to 
    obtaining public input, replacing proposed language pertaining to 
    issuance of permits and leases for a period of less than 10 years with 
    wording taken directly from FLPMA (43 U.S.C. 1752), and adding to the 
    requirement that temporary nonuse and conservation use be in 
    conformance with plans, standards, and guidelines a requirement for 
    conformance with the fundamentals of rangeland health presented in 
    Sec. 4180.1.
    Section 4130.3  Terms and Conditions (Formerly, Section 4130.6)
        This section would have required that permits and leases 
    incorporate terms and conditions that ensure conformance with the 
    national requirements and established standards and guidelines. This 
    requirement would have established that terms and conditions of permits 
    and leases are the principal vehicle for implementing the standards and 
    guidelines and thereby the precepts of ecosystem management.
        A few commenters stated that the national requirements and 
    established standards and guidelines and are not linked to livestock 
    grazing, are unattainable due to their lack of site-specific analysis 
    and contradict Congressional intent.
        Other commenters asserted that maintenance of national standards 
    and guidelines should be made a condition of the permit and that 
    livestock operators should have to get approval from the authorized 
    officer before making use of any resource beyond their permitted forage 
    such as water, wildlife, etc. and that permits should include a 
    schedule for monitoring.
        The fundamental requirements, guiding principles and fallback 
    standards are all linked directly to livestock grazing. Developing 
    standards and guidelines at the local level, with heavy reliance on 
    public involvement through the RACs, will assure that they are 
    attainable and consistent with local conditions. The fundamental 
    requirements and guiding principles are based upon ecological 
    principles. The Department believes this is consistent with the intent 
    of Congress which has mandated the Secretary in FLPMA to protect the 
    quality of scientific, scenic, historical, ecological, environmental, 
    air, and atmospheric, water resources, and archaeological values and to 
    assure the proper use of the public land resources to assure 
    sustainability.
        The standards and guidelines will be made part of the terms and 
    conditions of the permit in accordance with Sec. 4130.3. Levels of 
    permitted use are subject to adjustment, depending in part on resource 
    condition concerns, in accordance with Sec. 4110.3-2. Livestock 
    operators are required to get approval from the authorized officer 
    before making use of any resource beyond the uses of public resources 
    directly associated with livestock grazing, as provided in their permit 
    or lease. Monitoring schedules may become part of the terms and 
    conditions of some permits and leases, especially where activity plans 
    have been completed for the allotment.
        In accordance with the above discussion, the Department has decided 
    to adopt the provision as proposed.
    Section 4130.3-1  Mandatory Terms and Conditions (Formerly, Section 
    4130.6-1)
        This section would have been amended to remove reference to 
    acceptable methods for determining carrying capacity and to remove the 
    cross references for those sections of the rule that detail how 
    stocking levels are adjusted. This change was made to recognize the use 
    of methods other than monitoring in determining carrying capacity and 
    to streamline the wording of the mandatory terms and conditions by 
    removing unnecessary cross references. Other provisions in the 
    proposal, such as Sec. 4110.3, would have broadened the sources of 
    information that could be relied upon by BLM as a basis for making 
    decisions about permitted use, carrying capacity, and other factors. 
    The section would have been further amended by adding a paragraph (c) 
    that would have required that standards and guidelines be reflected in 
    the terms and conditions of permits and leases. This provision would 
    have ensured that individual permits or leases contribute to the 
    maintenance or enhancement of healthy rangelands and is the principal 
    mechanism for implementing standards and guidelines.
        Many commenters asserted that monitoring should be retained as a 
    requirement for determining carrying capacity and that the Department 
    should add a requirement that the level of use should only be part of 
    the terms and conditions if accepted uncontested by the affected 
    permittee or lessee. Commenters also asserted that conformance with the 
    national requirements, standards, and guidelines would be impossible. 
    Other commenters stated that if the agency cannot afford to protect the 
    public lands used for grazing through monitoring, then grazing should 
    not be allowed.
        Use of other sources of information besides monitoring are 
    discussed above, principally at Sec. 4110.3 and also at Sec. 4110.3-2. 
    Carrying capacity for the allotment is set by the permit or lease. 
    Changes in permitted use, including the requirement that they be 
    supported by monitoring, field observations, ecological site inventory 
    or other data is addressed at Sec. 4110.3. The methods to be used are 
    more appropriately dealt with under subpart 4110 rather than being 
    included as a parenthetical statement in Sec. 4130.3-1.
        The fallback standards and guidelines are reasonable and 
    achievable. Field testing during development of this proposal showed 
    significant conformance between fallback standards and guidelines and 
    existing land use plans. Regional standards and guidelines will be 
    developed with full public participation (including grazing permittees 
    and lessees) and in consultation with the RAC. This level of public 
    involvement will help ensure that the regional standards and guidelines 
    developed will be realistic and achievable. Issues relating to the 
    standards and guidelines are discussed more fully at subpart 4180.
        Reference to ``monitoring'' was eliminated from this section not 
    because the Department does not intend to monitor range conditions, but 
    because other sources of information are legitimate means for BLM to 
    evaluate range conditions and because this section does not establish 
    the practices to be followed in estimating carrying capacity (See 
    Secs. 4110.3-1 and 4110.3-2).
        In accordance with the above discussion the Department has decided 
    to adopt the provision as proposed, with one change. The words ``the 
    national requirements, standards, and guidelines pursuant to'' have not 
    been included in the final rule. Actual achievement of national 
    requirements, (which have been modified from the proposed rule and are 
    now reflected in fundamentals of rangeland health), standards, and 
    guidelines may not be immediately possible but rather may depend on a 
    series of actions taken over a period of time.
    Section 4130.3-2  Other Terms and Conditions (Formerly, Section 4130.6-
    2)
        Paragraph (f) of this section would have been amended to allow 
    terms and conditions to provide for temporary changes in livestock use 
    for the improvement of riparian area functions and for protecting other 
    rangeland resources and values consistent with [[Page 9942]] applicable 
    land use plans. The amendments would have been consistent with the 
    themes of protection, improvement, and restoration of the rangelands to 
    increase overall productivity, and would have enhanced multiple-use 
    management as required by applicable laws. Furthermore, the amendments 
    would have allowed responsive action in preventing damage that could 
    result from grazing during nontypical natural conditions (such as 
    delaying spring turnout during extreme drought).
        Additionally, the section would have been amended by the addition 
    of a new paragraph, (h), allowing terms and conditions to specify that 
    BLM shall have administrative access across the permittee's or lessee's 
    owned or leased private lands for purposes of administering the public 
    lands. This provision would have addressed attempts to prevent BLM from 
    performing functions such as range use supervision, compliance checks, 
    and trespass abatement that are needed to administer the Federal 
    grazing permit or lease.
        This section attracted a number of comments. Many of the comments 
    expressed concern over the proposed language of paragraph (h). Comments 
    ranged from opposition to paragraph (h) on the grounds that a 
    requirement for administrative access was an ``unwarranted intrusion'' 
    to asserting that such a condition on a permit would constitute a 
    ``taking.''
        Other commenters recognized a need for BLM to conduct 
    administrative functions on the public land. They stated that the rule 
    needs to make it clear this provision can only be used by BLM personnel 
    to conduct ``BLM business on the Federal lands.'' Commenters also 
    expressed concerns that paragraph (f) would allow for ``permit 
    cancellation'' without notifying or consulting the permittee. Other 
    commenters viewed the riparian improvement provisions of paragraph (f) 
    as vague.
        The provisions of paragraph (h) regarding administrative access 
    refer to access across private lands to reach public lands in order for 
    agency staff to perform necessary resource management activities on the 
    public lands. These include such activities as monitoring of resource 
    conditions, range use supervision, and evaluating the conditions of or 
    the need for range improvements. Land management agencies, like any 
    landowner, need appropriate access to the lands they administer. 
    Efficient access to allotments is needed and is consistent with the 
    partnership between permittees or lessees and the agency to manage 
    rangelands properly. In cases where BLM is unable to obtain permission 
    to cross private lands to perform necessary administrative functions on 
    public lands, BLM may not be able to allow grazing or other use.
        A discussion regarding ``takings'' can be found above in the 
    General Comments section of this preamble.
        This provision does not pertain to public access across private 
    lands. The need for public access is typically considered through the 
    land use planning process. Efforts are made through agreement and 
    acquisition of easements to acquire access where appropriate.
        Paragraph (f) of the proposed rule was intended only to provide for 
    temporary delays, cessation, or modification of livestock grazing, not 
    permanent actions. The word ``temporary'' is moved in the final rule 
    adopted today to make clear that paragraph (f) does not provide for 
    permanent changes in livestock use. In all cases the permittee or 
    lessee will be given reasonable notice, subject to the limitations that 
    result from unforeseen natural factors such as drought or flood.
        The Department disagrees with the commenters' assertions that 
    provisions of paragraph (f) pertaining to riparian areas are vague. The 
    importance of riparian areas in the stabilization of soils, maintenance 
    of water quality, reduction of flood hazard and provision of habitat 
    have been well established. Although the standards for proper 
    functioning conditions for specific riparian sites are not provided in 
    this rule, the basic factors of healthy riparian areas are presented in 
    subpart 4180 and will be addressed in the development of State or 
    regional standards and guidelines. The development of these standards 
    and guidelines will involve public input and consultation with the RAC, 
    which will help ensure that they are reasonable and implementable.
        In accordance with the above discussion, the Department has decided 
    to adopt the provision as proposed.
    Section 4130.3-3  Modification of Permits or Leases (Formerly, Section 
    4130.6-3)
        The proposed rule would have amended this section to provide for 
    consultation with States and the interested public concerning 
    modification of permits or leases. It would also have added lack of 
    conformance with the national requirements or the standards and 
    guidelines as a reason to modify terms and conditions of a permit or 
    lease. Finally, it would have broadened opportunities for input during 
    the preparation of reports that evaluate monitoring and other data used 
    as a basis for making decisions to change grazing use or terms and 
    conditions. These changes were intended to enhance opportunities for 
    input by permittees, lessees, States, and the interested public in 
    decisions regarding the management of the public rangelands.
        The Department received a few comments on this section. Commenters 
    objected to the deletion of the terms ``cooperation and 
    consideration;'' to use of land use plan objectives as a test of 
    whether grazing is being properly managed; and to the involvement of 
    nongrazing interests in making forage allocation decisions. Some were 
    concerned that the authorized officer would use land use plan 
    objectives as a reason to reduce grazing use without evidence that a 
    problem was caused by such use. Others supported an annual public 
    review of allotments to determine whether they are in compliance with 
    the land use plan.
        The rule as adopted today includes the terms ``cooperation and 
    coordination.'' This decision is discussed at Sec. 4100.0-5. 
    Conformance with land use plan objectives is a reasonable test of 
    whether livestock grazing is being properly managed. Land use plan 
    objectives form the basis for all management decisions within the area 
    covered by the plan. Should actions taken on a given allotment not lead 
    to achieving those objectives it is incumbent upon the authorized 
    officer to take appropriate action to assure that they do. In the final 
    rule adopted today, language is added to clarify that this section 
    relates to the ``active use or related management practices.'' This 
    specifies that the authorized officer can modify terms and conditions 
    of a permit or lease when the grazing use is the cause of a failure to 
    meet land use plan objectives. Additionally, decisions to increase or 
    decrease the grazing use or to change the terms and conditions of a 
    permit or lease must be based upon monitoring and other data.
        The final rule requires the authorized officer to provide the 
    public with the opportunity for review and comment and to give input 
    during the preparation of reports that evaluate monitoring. The 
    Department believes that providing the maximum opportunity for public 
    input assures that all factors are adequately considered by the 
    authorized officer when he/she is making allocation decisions.
        The Department does not agree that the rule should require an 
    annual evaluation of all allotments to determine [[Page 9943]] if they 
    are in conformance with the land use plan, AMP, or other activity plan. 
    Frequency of monitoring and evaluation should be dictated by local 
    conditions rather than by general rule.
        In accordance with the above discussion, the Department has decided 
    to adopt the provisions, with some changes. The only substantive change 
    is the addition of the phrase ``active use or related management 
    practices'' as clarification that the basis for modifying terms and 
    conditions of permits or leases when management objectives are not 
    being met is use related to grazing. The title of the final section is 
    changed to ``Modification of Permits or Leases'' to further clarify the 
    intent of the section.
    Section 4130.4  Authorizations within the Terms and Conditions of 
    Permits and Leases (Formerly, Section 4130.1-1 Changes in Grazing Use).
        In the proposed rule, this section would have provided for field 
    managers to make temporary changes in authorized use, either increases 
    or decreases, not to exceed 25 percent of the authorized use or 100 
    AUMs, whichever is greater, following consultation with the affected 
    permittees or lessees and the State having land or responsibility for 
    resources management within the allotment. This would have provided 
    latitude to the authorized officer for authorizing minor or incidental 
    adjustments in grazing use without extensive consultation, simplifying 
    day-to-day administration.
        The Department received a few comments on this section. Most 
    commenters were concerned about the 25 percent or 100 AUMs limit on 
    increases or decreases in grazing use. Some stated the limits were 
    unreasonable, especially in respect to ephemeral ranges. They stated 
    that in some areas occasional very wet years might produce great 
    amounts of forage, so that use could reasonably be increased by much 
    more than the 25 percent limitation. A few cited potential impacts of 
    the provision such as foregone employment associated with higher use 
    levels and increased fire hazard if forage is not harvested. Some 
    commenters suggested changes in use should only be limited by the terms 
    and conditions of the permit or lease.
        Some commenters opposed the provision that the authorized officer 
    could impose such a change without the permittee's consent. A few held 
    concerns that the consultation provisions would be burdensome, while 
    others thought consultation should be expanded to ``consultation, 
    coordination and cooperation.''
        Some commenters were confused by this section and asked what would 
    happen if changes greater than 25 percent were needed and how the 
    provision affected temporary nonuse and permitted use.
        Some reviewers had concerns with how ephemeral grazing would be 
    affected by the provision and expressed the opinion that grazing should 
    not be permitted in the hot desert biome. It was suggested that this 
    provision exclude areas receiving less than 10 inches of rainfall 
    annually.
        Based largely on the comments on this section, the Department has 
    retitled the section and removed references to limitations of 25 
    percent or 100 AUMs and the authorized officer requiring increases or 
    decreases in use. The changes made in this final rule are intended to 
    clarify how proposed changes in grazing use in any given year may be 
    approved when the changes requested by the permittee or lessee are 
    consistent with the terms and conditions of the permit or lease.
        Changes in use under this provision would constitute the authorized 
    officer's ministerial validation that the specific kind and numbers of 
    livestock, the dates of use, and other conditions of use requested by 
    the permittee or lessee fall within the terms and conditions of the 
    permit. This process ensures that use is consistent with resource 
    management objectives and that operators and BLM have documented how 
    use will be made for the upcoming grazing year for purposes of 
    maintaining use data and supervising use. (Application for grazing use 
    outside of the terms and conditions of the permit or lease would be 
    considered under other provisions of this final rule. (See, for 
    instance, Secs. 4110.3-2, 4110.3-3, and 4130.3-3.) Consultation is not 
    required under this section because (a) the request under consideration 
    will come from the permittee or lessee, and (b) in the future 
    consultation will have taken place at the time the permit or lease was 
    issued (see Sec. 4130.2) and at any time the terms and conditions of 
    the permit or lease are modified (see Sec. 4130.3-3).
        This provision for validation of requested grazing use when such 
    use falls within the terms and conditions of the permit or lease does 
    not apply to the issuance of permits or leases. Issuance of permits or 
    leases, including short-term permits or leases, constitute direct 
    Federal actions that are subject to NEPA analysis as well as the 
    provisions of Sec. 4130.2 of this final rule.
        Examples of the types of changes that would be considered under 
    this section are the activation of previously approved temporary nonuse 
    or conservation use, placing permitted use in temporary nonuse or 
    conservation use, changes in dates and class, and the use of forage 
    temporarily available on ephemeral or annual ranges. On other than 
    established ephemeral range, use of forage in amounts greater than 
    permitted use that has temporarily been made possible by factors such 
    as above-normal precipitation would require the issuance of a separate 
    nonrenewable permit under Sec. 4130.6-2 of this final rule.
        Decisions pertaining to permitting ephemeral grazing use and the 
    establishment of terms and conditions of use are not governed by this 
    section of the rules. These types of decisions typically require NEPA 
    compliance and public involvement. The concerns of commenters about 
    authorizing ephemeral grazing use are best addressed in the planning 
    and NEPA analysis processes.
        In accordance with the discussion above, the rule adopted today 
    will provide that the authorized officer may approve requested changes 
    in grazing use when the changes fall within the terms and conditions 
    established in the grazing permit or lease.
    Section 4130.5  Free-Use Permits (Formerly, Section 4130.3)
        This section was originally proposed as part of Sec. 4130.7-1, 
    however it is moved to the newly redesignated Sec. 4130.5 to 
    consolidate provisions concerning free-use permits. This section would 
    have provided for free-use under three specified circumstances.
        The Department received a few comments on this provision. 
    Commenters stated that free use should be allowed only for scientific 
    research projects. Commenters also stated it should not be authorized 
    to control noxious weeds, since overgrazing facilitated the spread of 
    noxious weeds in the first place.
        The Department foresees that this provision will be used only when 
    it is a desirable means of accomplishing a particular task. It will 
    also give on-the-ground managers an additional tool to meet resource 
    objectives. For example, there are some circumstances where carefully 
    managed grazing can be used to control noxious weeds. Often, management 
    prescriptions can be developed within existing permits and leases. 
    However, there are some occasions where a free-use permit could be a 
    valuable alternative.
        In accordance with the above discussion, the Department has decided 
    [[Page 9944]] to adopt the final rule language as proposed with the 
    exception of its relocation from the proposed Secs. 4130.7-1 to 4130.5 
    of the final rule.
    Section 4130.6-1  Exchange-of-Use Grazing Agreements (Formerly, Section 
    4130.4-1)
        This proposed section would have included requirements that 
    agreements for exchange of use must be in harmony with management 
    objectives, and compatible with existing livestock operations. The 
    agreements would have been required to address the fair sharing of 
    maintenance and operation of range improvements and would have been 
    approved for the same term as any leased lands that are offered.
        The Department received comments expressing a desire that all non-
    Federal lands which are unfenced and intermingled with public land be 
    covered by an exchange-of-use agreement and that lands must be located 
    within the permittee's area of use and not in another permittee's area 
    of use in order for the carrying capacity of the non-Federal lands to 
    be credited to the permittee without charge. Other commenters objected 
    to unnecessary requirements or restrictions on agreements and possible 
    impacts to private and state trust lands.
        The Department disagrees that all non-Federal lands should be 
    covered by an exchange-of-use-agreement. It is necessary for the 
    authorized officer to have the flexibility to deal with local 
    situations and use exchange of use where appropriate. The Department 
    agrees that the lands involved in an exchange-of-use-agreement should 
    be within the allotment. This is current BLM practice and will not be 
    altered by this rule.
        The Department disagrees that the only restriction should be that 
    such agreements not exceed grazing capacity. Grazing capacity is a 
    critical factor to achieving management objectives; however, it is not 
    in the Department's interest to enter into agreements which are not in 
    harmony with management objectives and compatible with existing grazing 
    operations.
        Exchange of use agreements are initiated at the permittee's 
    request. Lands voluntarily included in an exchange of use agreement 
    would be subjected to the terms and conditions of the permit or 
    license.
        The requirement that an exchange of use agreement contain 
    provisions for the equitable sharing of operation and maintenance of 
    range improvements will not result in the maintenance of improvements 
    that are of no value. The necessity of range improvements to achieve 
    allotment objectives as well as maintenance requirements are addressed 
    in allotment plans and permit terms and conditions and are not affected 
    by an exchange of use agreement.
        In accordance with the above discussion, the Department has decided 
    to adopt the provision as proposed with the exception of a modification 
    to clarify that the lands subject to the exchange-of-use agreement must 
    be within the applicant's BLM grazing allotment.
    Section 4130.6-3  Crossing Permits (Formerly Section 4130.4-3)
        The proposed provisions would have clarified that crossing permits 
    are a form of temporary use authorization for grazing, and that the 
    terms and conditions must be contained in the temporary use 
    authorization.
        The Department received very few comments on this section. 
    Commenters suggested that the proposed changes would slow down the 
    approval process and create legal risks.
        The Department has adopted the provision as proposed. The 
    provisions adopted today are consistent with current practice in the 
    field. These procedures have not resulted in unusual delay or legal 
    risk.
    Section 4130.7  Ownership and Identification of Livestock (Formerly, 
    Section 4130.5)
        This section would have been amended to make it clear that, before 
    grazing livestock owned by persons other than the permittee or lessee, 
    the permittee or lessee is required to have an approved use 
    authorization and have submitted a copy of the documented agreement or 
    contract that includes information required for BLM's administration of 
    permits and leases and management of rangeland resources. This 
    generally does not create a new requirement. Many field offices are 
    currently requiring the information to document the legality of the 
    pasturing of livestock owned by persons other than the permittees.
        The proposed rule would also have added an exemption from some of 
    the requirements for ownership of livestock for sons and daughters of 
    permittees or lessees in specified circumstances.
        The Department received a few comments on the section. Many 
    commenters wanted grandchildren and other family members or private 
    business partnerships to be covered by the exemption and for the 
    restrictions to be modified or removed.
        The Department believes that excluding sons and daughters from the 
    requirements of this section is a reasonable compromise which will 
    address the vast majority of cases and has chosen not to extend the 
    exclusion to other family members or private business partnerships.
        The Department believes it is necessary to have all four conditions 
    of approval for granting the exclusion. The Department believes that if 
    livestock owned by sons and daughters exceeds 50% of the total number 
    authorized then consideration should be given to issuing the permit in 
    the name of the person owning the majority of the livestock.
        In accordance with the above discussion, the Department has decided 
    to adopt the provision as proposed with the exception of modifications 
    to clarify the language that was originally proposed.
    Section 4130.8-1  Payment of Fees (Formerly Section 4130.7-1)
        The fee portion of the proposed rule generated numerous diverse and 
    conflicting public comments. As noted in the August 1993 advance notice 
    of proposed rulemaking, there are a number of alternative base values 
    and alternative fee formulas that could be used to set fees for grazing 
    public lands. There have been numerous studies and much public debate 
    concerning what is a reasonable, fair, and equitable fee for grazing 
    Federal rangelands.
        The draft EIS for Rangeland Reform '94, published in May 1994, 
    analyzed seven fee alternatives: PRIA or No Action, i.e., the current 
    fee; Modified PRIA; BLM-Forest Service Proposal; Regional Fees; Federal 
    Forage Fee Formula; PRIA with Surcharges; and, Competitive Bidding. 
    Each was analyzed in conjunction with management alternatives.
        The preamble to the proposed rule published in the March 25, 1994 
    Federal Register described the pros and cons of adopting an increased 
    grazing fee. The formula set forth in the proposed rule would have 
    addressed the disparity between rates charged for livestock forage on 
    private and State lands versus the rate charged for Federal lands.
        The preamble acknowledged that some permittees and lessees that are 
    highly dependent on Federal forage, do not have off-ranch income, and 
    have heavy debt loads, might be required to make financial adjustments. 
    These adjustments, in some circumstances, might have included sale of 
    the ranch. However, it was expected that such sales would occur in only 
    limited circumstances. It was further noted that such sales occur now 
    and could be [[Page 9945]] expected to continue even if the fee 
    proposal were not adopted. However, the preamble noted that the 
    economic impact on western communities was expected to be localized 
    and, in most areas, not significant because the portion of the local 
    economy dependent upon the use of Federal forage is relatively minor.
        The rule proposed March 25, 1994, discussed the criteria identified 
    by BLM and the Forest Service by which a new fee proposal should be 
    measured:
        1. The fee charged for livestock grazing should approximate market 
    value. Using market value helps assure that the public receives a fair 
    return for use of publicly owned resources.
        2. The fee should not cause unreasonable impacts on communities 
    that are not economically diverse or to livestock operations that are 
    greatly dependent on public land forage.
        3. The grazing fee should recover a reasonable amount of government 
    costs involved in administering grazing permits and leases and should 
    provide increased funds to improve ecological conditions.
        4. The fee system should be understandable and reasonably easy to 
    administer.
        Public comments on the proposal regarding payment of fees addressed 
    how the fee formula should be derived, impacts of an increase, 
    differences between Federal and private lands rates, non-fee costs 
    associated with Federal lands, fair market value for public land 
    grazing, fair return to the public for livestock grazing use on public 
    lands, recovery of costs for BLM's range program, whether the fee 
    represents a subsidy for public lands ranchers, and funds for range 
    improvements.
        Commenters recommending no change to the existing fee formula 
    anticipated that an increase in fees would have adverse effects on 
    individual operations and rural western counties. Some commenters 
    suggested that other factors be considered in setting fees, including 
    regional economic differences and resource conditions.
        The final rule will not include the fee provision, thus giving the 
    Congress the opportunity to address appropriate fees for grazing on 
    public lands. In the FY94 Interior Appropriations bill, the Senate 
    voted for a moratorium on the completion of the rangeland reform 
    regulations. Although the House later approved grazing reform by a vote 
    of 314 to 109, the Senate did not approve the measure.
        Subsequently, the Department resumed this rulemaking. Five 
    Congressional hearings were held in the field and in Washington 
    following release of the proposed rule. Correspondence from Members of 
    Congress through the process has suggested the need for Congressional 
    involvement and possible action. A few Members of Congress commented 
    that some increase in grazing fees is needed while others indicated 
    that the proposed fee would have a heavy negative impact on public 
    lands ranching. Some Congressional commenters suggested alternative 
    methods of setting fees and leasing land.
        Some commenters opposed the proposed fee formula asserting that it 
    would promote poor resource use and would not reflect a fair return for 
    the public. Some public comments suggested a link between the fee 
    formula and overgrazing. Analysis of the relationship between livestock 
    grazing use on BLM lands and the fee indicates that there is little 
    correlation between the two at the current fee level and the fee levels 
    considered by the proposed rule. First, the amount of livestock grazing 
    allowed on Federal lands is set by BLM and is independent of the fee. 
    Second, even within the allowed limits, there is no indication that the 
    proposed fee would have reduced livestock grazing on Federal lands. 
    From 1982 to 1983, while the fee decreased by 25 percent, livestock use 
    did not increase at all, but instead decreased by three percent. While 
    the fee remained the same in 1985, 1986 and 1987, livestock use 
    decreased by nearly seven percent from 1985 to 1986 and increased about 
    seven percent from 1986 to 1987. Moreover, from 1992 to 1993 when the 
    fee decreased, livestock grazing use decreased also, instead of 
    increasing. Therefore, it appears that even within the allowable limits 
    of livestock grazing use, the fee level does not have a dominant effect 
    on livestock use. Apparently other factors such as livestock prices, 
    livestock inventories, cost of production, drought, availability of 
    other forage and market conditions play a substantial role in 
    determining livestock grazing use.
        Based on the above statistics, it appears that as long as the 
    Federal forage is not priced above market value the forage will 
    continue to be used, if not by the current permittee, then by a new 
    permittee. The grazing fee analyzed in the preferred alternative was 
    not above the market value for Federal forage. Therefore, it would not 
    have significantly affected the amount or type of grazing use or, in 
    turn, rangeland health.
        Other factors, such as proper planning and grazing management based 
    on sound technical and scientific data and professional skills, 
    conformance of terms and conditions with effective management practices 
    such as those embodied in the fundamentals of rangeland health and the 
    standards and guidelines of subpart 4180 of this final rule and timely 
    and appropriate responses to conditions of resource deterioration that 
    are essential to improving rangeland health. Based on the historical 
    data cited above, management practices and market conditions have a 
    greater impact on rangeland health than does the specific fee level.
        The Department has concluded that, due to the great amount of 
    comment received against the fee (either because it was being changed 
    too much or too little), significant Congressional interest, and the 
    severability of the fee and management portions of the proposed rule, 
    it is appropriate to retain the current fee structure at this time. 
    This will provide an opportunity for Congress to consider the need to 
    legislate a fee increase.
        Other proposals also are not adopted in the final rule. The 
    surcharge associated with base property leases and multiple year 
    billing provisions have not been adopted. As many commenters pointed 
    out, authorized subleasing is a long-standing practice that provides 
    benefits to both the rancher and the public. First, it helps facilitate 
    the entry of new ranchers into the livestock business in Federal land 
    areas. Second, unlike Forest Service lands, many BLM lands are 
    intermingled with private lands, and therefore are affected by and 
    affect the management of intermingled private land and improvements. 
    The Department has decided that the proposed surcharge on the transfer 
    of Federal permits and leases resulting from base property leases would 
    have had negative effects that would have outweighed the benefits of 
    the surcharge, and has not carried this form of surcharge forward into 
    the final rule.
        However, the final rule adopts the proposed provision that when the 
    lease or permit is transferred to the base property lessee, it must be 
    issued for a period of not less than three years. Such a lease of the 
    base property constitutes a substantial long-term commitment of 
    resources thus reducing the potential for large short-term windfall 
    profits, as identified by the General Accounting Office (RCED-86-168BR) 
    and the Office of the Inspector General (92-1-1364), and helping to 
    ensure good stewardship. The authorized officer has the discretion to 
    approve a transfer for a shorter period when consistent with management 
    and resource condition objectives. [[Page 9946]] 
        Other changes proposed in Sec. 4130.7-1 also are adopted in this 
    final rule. In the proposed rule, these changes would have amended 
    Sec. 4130.7-1 to make clear the definition of billing unit, to provide 
    for assessing a surcharge in certain instances for the public 
    landlord's share of authorized livestock pasturing agreements 
    associated with Federal land grazing, to clarify that grazing use that 
    occurs before a bill is paid is an unauthorized use and may be dealt 
    with under the settlement and penalties sections of these rules, and 
    that noncompliance with terms and conditions may result in the loss of 
    after-the-grazing-season billing privileges. These provisions are 
    adopted as proposed. The proposed provision to provide for free use 
    where the primary objective of livestock use is to benefit resource 
    conditions or management, such as scientific study or the control of 
    noxious weeds, is moved to Sec. 4130.5 in the final rule.
        The Department received comments that were both supportive and 
    critical of the proposed pasturing agreement surcharge. Commenters 
    criticized the approach to calculating the surcharge because they 
    believed it did not reflect the regional differences in forage value. 
    Other commenters opposed absolutely any pasturing on BLM lands because, 
    they maintained, it results in large windfall profits from sale of 
    public resources. Still other commenters asserted that permittees are 
    entitled to profit from pasturing other operators' cattle on their 
    Federal grazing permits or leases.
        The Department believes pasturing agreements have a potential for 
    short-term windfall profits and do not provide an appropriate incentive 
    for good stewardship. Therefore, the provision for a surcharge on 
    pasturing agreements has been adopted in this final rule. However, the 
    calculation of the surcharge is changed to reflect the regional 
    differences in forage value using State private grazing land lease 
    rates, as calculated by NASS. The consideration of the private grazing 
    land lease rate for each State, rather than an average of all States, 
    is intended to reflect the value of the Federal forage involved in a 
    more equitable and efficient manner. After consideration of private 
    land lease rates in the western states, the Department has decided that 
    35 percent of the difference between the private grazing land lease 
    rate in each respective State and the Federal grazing fee represents a 
    reasonable balance that will allow the permittee or lessee to cover 
    costs that may arise from pasturing other livestock operators' cattle, 
    will provide the government a reasonable rate of return, and will aid 
    in ensuring good stewardship. Sons and daughters of permittees or 
    lessees will be exempt from the surcharge, as set forth in the final 
    rule.
        A number of comments were also received on free use, which was 
    originally proposed in this section. Most of the comments expressed 
    concern that the provision would lead to numerous free use grazing 
    permits. This provision is intended to provide for the use of grazing, 
    at the discretion of BLM, for limited scientific and vegetation 
    manipulation objectives. For example, intense grazing by goats may 
    serve as an effective method for the control of weeds such as leafy 
    spurge.
        The Department has decided to adopt the provision with the changes 
    discussed above.
    Section 4130.8-3  Service Charge (Formerly Section 4130.7-3)
        Section 4130.7-3 would have been amended by redesignating the 
    section as section 4130.7-4, and by adding to applications that are 
    made solely for temporary nonuse or conservation use. The service fee 
    would offset the costs of processing such applications.
        The Department received very few comments on this section. 
    Accordingly, the Department has decided to adopt the final rule 
    language as proposed with the exception of a minor clarifying change.
    Subpart 4140--Prohibited Acts
    Section 4140.1  Prohibited Acts on Public Lands
        As proposed, paragraph (a)(2) of this section would have been 
    amended to clarify that approved temporary nonuse, conservation use, or 
    temporarily suspended use would be excepted from the requirement to 
    make substantial use, and, therefore would not have been subject to 
    penalty action under Sec. 4170.1. Other proposed amendments to this 
    section would have clarified paragraph (b)(1) to establish that grazing 
    bills for which payment has not been received do not constitute 
    authorization to graze. Paragraph (b)(9) would have been amended to 
    make it clear that the permittee is responsible for controlling 
    livestock so they do not stray on to ``closed to range'' areas where 
    grazing is prohibited by local laws, such as formally designated 
    agriculture districts or municipalities. To be consistent with the 
    Forest Service this section would have restored two provisions that 
    existed in this subpart prior to 1984. These provisions would have made 
    subject to penalty permittee or lessee violations of the Wild and Free 
    Roaming Horse and Burro Act of 1971 and violations of Federal or State 
    laws or regulations concerning animal damage control, application or 
    storage of pesticides, herbicides or other hazardous materials, illegal 
    alteration or destruction of stream courses, pollution of water 
    resources, illegal take, destruction or harassment of fish and wildlife 
    resources, or illegal destruction or removal of archeological 
    resources.
        Further provisions would have been added to clarify that attempted 
    payment by a check that is not honored by the bank does not constitute 
    payment and would result in unauthorized use. (However, Sec. 4140.1(c) 
    specifically provides for civil penalties only where payment with 
    insufficiently funded checks is repeated and willful.) The proposal 
    also would have provided for reclamation of lands, property or 
    resources when damaged by unauthorized use or actions.
        The proposed rule also would have added reference to the types of 
    violations of Federal and State laws and regulations concerning pest or 
    predator control and conservation or protection of natural and cultural 
    resources or the environment that would be prohibited acts subject to 
    penalty under subpart 4170 where public lands are involved or affected.
        The Department received many comments on this section. A number of 
    the comments revealed some confusion as to the interaction between 
    Sec. 4140.1, prohibited acts, and subpart 4170, the penalties section 
    of the grazing rules. Section 4140.1 provides a list of prohibited 
    acts. Specifically, Sec. 4140.1(a) lists prohibited acts for which 
    permittees and lessees might be subject to civil penalties; 
    Sec. 4140.1(b) lists prohibited acts for which all persons using the 
    rangelands might be subject to civil and criminal penalties, and new 
    Sec. 4140.1(c), which incorporates what was proposed as Sec. 4170.1-3, 
    lists additional prohibited acts and establishes the conditions that 
    must be fulfilled before the Department may impose civil penalties on 
    those committing these prohibited acts. Sections 4170.1 and 4170.2 set 
    forth the penalties, both civil and criminal, for committing prohibited 
    acts.
        Many commenters objected to including violations of State and 
    Federal statutes related to water pollution, wildlife protection, and 
    other matters, as prohibited acts. Some commenters asserted that this 
    provision exceeded the Secretary's authority, and violated Section 
    302(c) of FLPMA (43 U.S.C. 1732(c)). In particular, these commenters 
    contended that FLPMA provides only for the revocation or suspension of 
    authorizations for the use, [[Page 9947]] occupancy, or development of 
    public lands on the basis of violations of State or Federal acts or 
    regulations applicable to air or water quality. Furthermore, these 
    commenters asserted that Section 302(c) of FLPMA provides for the 
    suspension, revocation, or cancellation of authorizations to use, 
    occupy, or develop public lands only when violations of terms and 
    conditions occur on public lands in connection with the exercise of 
    rights and privileges of the use authorization. Others were concerned 
    that penalties would be imposed for even de minimus violations.
        Although Section 302(c) of FLPMA contains specific references to 
    Federal and State air and water quality standards, its language is 
    expansive. It allows enforcement of terms and conditions, ``including, 
    but not limited to, terms and conditions requiring compliance with 
    regulations under Acts applicable to the public lands * * *.'' The 
    Department has concluded that these provisions of FLPMA would encompass 
    the activities prohibited in Sec. 4140.1 of this rule. Moreover, the 
    Department has concluded that good stewardship of the public lands, as 
    well as the intent and specific language of FLPMA, are served by 
    expanding the prohibited acts section to include violations of State 
    and Federal laws related to natural resources, and that expanding the 
    list of prohibited acts provides the regulated community and the public 
    with improved notice of the prohibited acts.
        The final rule as adopted provides penalties where violations are 
    more than de minimus and concern, in a more than remote way, the use of 
    the public lands. The Department has addressed commenters' concerns 
    that the provisions should be restricted to violations of terms and 
    conditions that occur on public lands and in connection with the 
    exercise of rights and privileges of the use authorization by adding to 
    Sec. 4140.1 the list of conditions formerly included under Sec. 4170.1-
    3. Under Sec. 4140.1(c) of this final rule, violations of other State 
    or Federal laws or regulations will not constitute prohibited acts 
    unless public land administered by BLM is involved or affected, the 
    violation is related to grazing use authorized by a permit or lease 
    issued by BLM, and the permittee or lessee has been convicted or 
    otherwise found to be in violation of any of these laws or regulations 
    by a court or by final determination of an agency charged with the 
    administration of these laws or regulations, and no further appeals are 
    outstanding. This consolidates in one section the list of the types of 
    violations and the three conditions that must be met before a violation 
    of State, Federal, and local laws and regulations constitutes a 
    prohibited act. This reorganization of the provisions from proposed 
    Secs. 4140.1 and 4170.1-3 into final Sec. 4140.1 improves the clarity 
    of the final rules by eliminating cumbersome cross-references.
        A number of commenters expressed concerns about procedural 
    protection in connection with the imposition of penalties. Under this 
    final rule, enforcement of the penalty provisions is subject to the 
    same Departmental appeal procedures as other types of appeals. These 
    procedures are detailed in regulations of the Department's OHA, Title 
    43 of the Code of Federal Regulations, Part 4, Subpart B. These 
    provisions provide adequate procedural safeguards, set conventional 
    burdens of proof and provide fair enforcement of the rules. Therefore, 
    the Department has not modified the rule language in response to these 
    concerns.
        There was also considerable comment about prohibited acts regarding 
    transit between public and private lands, trespass, straying, and gate 
    closure. Commenters expressed concern about whether the provisions 
    affected the ability of landowners to protect private property or range 
    improvements from trespass and vandalism. Others were concerned that 
    the provisions would affect Department of Agriculture or State agency 
    predator control activities.
        Nothing in these rules prohibits landowners from protecting private 
    property from trespass or vandalism, or prohibits the landowner from 
    keeping their gates closed to protect private property. The final rule 
    regarding gates is clarified by the addition of the words ``during 
    periods of livestock use.'' The Department does not intend this 
    provision to apply to situations where gates are left open to give 
    cattle access to forage and water. Closing a gate and consequently 
    denying cattle access to needed forage or water could be covered by the 
    provisions in Sec. 4140.1(a)(5). Nothing in this rule is intended to 
    prevent legitimate use of gates to move and control livestock. The 
    provision of Sec. 4140.1 relating to public access merely reiterates 
    existing requirements. The intent of the provision is to prevent 
    individuals from interfering with lawful uses of the public lands.
        The provisions in subpart 4140 apply to BLM's administration of the 
    grazing program on the public lands, and nothing in the subpart 
    prevents the landowner from placing signs on private property to 
    prevent trespass and destruction. Furthermore, nothing in this 
    provision affects Department of Agriculture or State agencies' predator 
    control activities. However, the Department has no authority to prevent 
    human trespass on private lands. Trespass is governed under the State 
    laws in each State.
        Stray livestock are a serious problem on public lands. In addition 
    to being an unauthorized use of forage, stray livestock present hazards 
    to vehicles and public land users, carry a potential to transfer 
    disease from sick to healthy stock, disrupt other animals, and cause 
    undesired breedings and unplanned mixtures of livestock gene pools.
        It is the responsibility of the permittee to control his or her 
    livestock. However, in evaluating violations, the authorized officer 
    can consider factors beyond the control of the permittee or lessee. For 
    example, the authorized officer could consider the fact that a third 
    party, without any knowledge on the part of the permittee, had 
    destroyed the permittee's fence and as a result livestock had strayed 
    from authorized areas. In contrast, repeated incidents of apparently 
    incidental strays could signify a more serious problem of range 
    management. In such cases, the authorized officer needs authority to 
    penalize the permittee or lessee for the problem.
        Some commenters expressed the view that conservation use should not 
    be exempted from the prohibition against failing to make substantial 
    grazing use. Commenters' concerns about conservation use are discussed 
    elsewhere in this preamble, especially at Sec. 4130.2. Failure to make 
    substantial use is discussed at Sec. 4170.1-2.
        Some commenters asked whether the rule prohibited alteration of 
    stream courses that might be needed as part of the maintenance of 
    improvements. The proposed and final language indicates that customary 
    maintenance of diversion points is an authorized activity. Others were 
    concerned about the provision specifying that attempted payment by a 
    check that is not honored does not constitute a grazing authorization. 
    In response, the language at final Sec. 4140.1(b)(9) has been revised 
    to specify that payment with insufficiently funded checks on a repeated 
    and willful basis is a prohibited act.
        Other commenters were concerned about the provisions on leasing and 
    subleasing. Nothing in this provision prohibits authorized leasing or 
    subleasing. The final rule has been amended to clarify that only 
    unauthorized leasing or subleasing is a prohibited act. The Department 
    understands that transactions that [[Page 9948]] include the leasing or 
    subleasing of base property and pasturing agreements can be a necessary 
    component of a grazing operation. However, the Department also believes 
    that it has a responsibility to ensure that sublessees are qualified 
    and will be good stewards, that appropriate base property is available, 
    and that livestock grazed pursuant to pasturing agreements must be 
    under the control of the permittee or lessee. Subleasing will be 
    permitted if the authorized officer determines the above criteria are 
    met.
        In accordance with the above discussion, Sec. 4140.1 of the 
    proposed rule is adopted as final with the exception of adding the 
    conditions formerly provided at Sec. 4170.1-3 to Sec. 4140.1, addition 
    of the phrase ``repeated and willful'' to paragraph (b)(9), and making 
    minor edits for clarity. Comments on the provisions proposed as 
    Sec. 4170.1-3 are discussed also at that section.
    Subpart 4150--Unauthorized Grazing Use
    Section 4150.1  Violations
        Under the proposal, this section would have been reorganized for 
    clarity and would have added the requirement that the authorized 
    officer shall determine whether a violation is nonwillful, willful, or 
    repeated and willful.
        The Department received a few comments on this section. Commenters 
    expressed concerns about the definition of violations and penalties to 
    be imposed, and about the process to be followed by the authorized 
    officer in making decisions about violations and penalties. A typical 
    concern was the investigation of violations. Related concerns included 
    how the authorized officer would determine if a violation had occurred.
        Other comments included suggestions that violators not be held 
    liable unless violations were repeated and willful, that damages should 
    be limited to that actually sustained, and that various words be 
    defined.
        The Department has decided not to adopt any specific definition for 
    terms that are legal standards and are not unique to BLM rules.
        The rule adopted today requires that BLM follow a fair, orderly 
    process when investigating violations and assessing penalties. An 
    appeal process is available under subpart 4160 when the violator 
    believes the rules have been inappropriately interpreted. The 
    Department acknowledges that in any regulatory program there is a 
    potential for inconsistent decisions, and intends that this regulatory 
    reform will improve the consistency of rangeland administration 
    throughout the Bureau. Consistency will be enhanced further through 
    additional information and training.
        It is not appropriate to limit liability to cases where violations 
    are repeated and willful, because in some cases a single violation can 
    be considerably damaging to the public lands. However, the final rules 
    provide for nonmonetary settlement of nonwillful violations in some 
    cases. Similarly, the Department does not believe it is appropriate to 
    limit penalties to the cost of correcting the problem. The availability 
    of penalties is a common enforcement mechanism that acts as a deterrent 
    to violations and an incentive to comply.
        In accordance with the above discussion, Sec. 4150.1 is adopted as 
    proposed.
    Section 4150.2  Notice and Order to Remove
        In the proposal, this section would have been amended to grant the 
    authorized officer authority to determine if a nonwillful violation is 
    incidental in nature, to outline a process for doing so, and to clarify 
    actions for expeditious resolution of these innocent or unintended 
    trespasses. The ability to close areas for a period of up to 12 months 
    to specified class and kinds of livestock for the sole purpose of 
    abating unauthorized use was also proposed, as was a provision that 
    would have allowed such decisions to be effective upon issuance or on a 
    specified date, and to remain in effect pending a decision on an 
    appeal. Reference to the agents of livestock owners would also have 
    been added to allow the authorized officer to notify an agent of a 
    nonwillful and incidental violation.
        The Department received very few comments on this section, most of 
    which related to the administrative burden of pursuing incidental 
    violations and land closures. The Department agrees that pursuing 
    violations for incidental unauthorized use increases the workload for 
    BLM and has provided for relief by making final the provision of the 
    proposed rule that allows for nonmonetary settlement of nonwillful 
    trespass under specific conditions.
        In accordance with the above discussion, the Department has adopted 
    Sec. 4150.2 as proposed except for minor changes to eliminate 
    redundancy between Sec. 4150.2 and Sec. 4150.1.
    Section 4150.3  Settlement
        Under the proposed rule this section would have been amended to 
    provide guidelines for nonmonetary settlements where fees could be 
    waived for unintentional incidental trespasses in a fair manner. The 
    authorized officer could have made a nonmonetary settlement only under 
    the following conditions: the operator is not at fault, an 
    insignificant amount of forage is consumed, no damage occurred, and 
    nonmonetary settlement is in the best interest of the United States. 
    The method for determining the settlement amounts would have been 
    amended to base the value of forage on the monthly rate per AUM for 
    pasturing livestock on private, nonirrigated land in each of the 17 
    western States. Other proposed amendments would have reduced the 
    potential for abuse of discretion by clarifying when a nonmonetary 
    settlement for nonwillful violations may be made.
        The Department received very few comments on this section. Nearly 
    all commenters supported the basic principle of nonmonetary settlement 
    but suggested alternatives for implementation. Commenters also sought 
    additional definition or suggested that nonmonetary settlement should 
    be excluded from the record to prevent every violation from being 
    appealed.
        The Department believes that the proposed conditions under which 
    the nonmonetary settlement would be used are defined in sufficient 
    detail and are appropriate. The specific circumstances of each case 
    vary greatly and will have to be evaluated in view of the conditions in 
    the rules by the authorized officer to make a determination of 
    nonmonetary settlement.
        The Department does not agree with some commenters' suggestions 
    that nonmonetary settlements should be excluded from the record. The 
    purpose of the provision is to ease the administrative burden for the 
    agency and relieve the financial burden for the operator. While 
    nonmonetary settlement may be appropriate under the terms of this rule, 
    unauthorized use should be documented in the record.
        The Department has decided to revise the provision of the proposed 
    rule that would have based the settlement fee for unauthorized use on 
    the average of private grazing land lease rates in the 17 western 
    States as reported annually by the Department of Agriculture's National 
    Agriculture Statistics Service. This provision would have provided for 
    an unauthorized use settlement that would have been uniform across all 
    public lands administered by BLM as well as western National Forest 
    System lands. Also, the settlement fee would have been based on the 
    same data set [[Page 9949]] that would have been used to calculate the 
    forage value index included in the proposal to amend the grazing fee 
    formula, which has not been carried forward in this final rule. The 
    Department has decided to base settlement of unauthorized use on the 
    average private grazing land lease rate, reported annually by the 
    National Agriculture Statistics Service, for the individual State in 
    which the unauthorized use occurs rather than on an average across the 
    17 States. This change will provide for a more fair settlement across 
    all affected States.
        In accordance with the above discussion, the proposed rule is 
    adopted as final except for the noted change from the average private 
    grazing land lease rate for all 17 western States to the average 
    private grazing land lease rate for each individual State.
    Subpart 4160--Administrative Remedies
    Section 4160.1  Proposed Decisions
        The proposed rule would have amended this section to provide 
    clarification that a final decision may be issued without first issuing 
    a proposed decision when action under Sec. 4110.3-3(b) of this part is 
    necessary to stop resource damage, or when action is taken under 
    Sec. 4150.2(d) to close an area to unauthorized grazing use. It would 
    have served to expedite the decision process where immediate action is 
    necessary and would have clarified what information must be contained 
    in a proposed decision. The provision is adopted as proposed.
        A number of comments objected to the use of the term ``interested 
    public.'' Comments indicated a concern that the use of the term 
    broadens public participation which may result in delays due to 
    administrative appeals and thus uncertainty for permittees. Comments 
    questioned whether the ``interested public'' would have an interest in 
    the matter they appeal and whether the ``interested public'' would 
    automatically have ``standing'' to challenge the final decision of an 
    authorized officer. One commenter suggested that decisions should be 
    sent to affected public land users, and any party showing a concrete 
    and particular injury from the decision.
        The term ``interested public'' replaces the term ``affected 
    interest'' in the existing rules. The definition of the term 
    ``interested public,'' adopted by today's action, appears at 
    Sec. 4100.0-5. One of the goals in adopting the changes to this section 
    is to clarify that the ``interested public'' will be notified of all 
    proposed decisions in order to involve the public in an early stage of 
    the decision making process. Under the existing rules ``affected 
    interests'' were notified of proposed decisions on permits and leases. 
    Today's change provides for notification to the ``interested public.'' 
    The Department expects that by involving the interested public early in 
    the decision making process on such issues as permit issuance, renewal 
    and modification, increasing and decreasing permitted use, and 
    development of activity plans and range improvement programs, there 
    will be fewer protests and appeals because parties will have a better 
    understanding of the final decision and the factors considered in 
    reaching the decision. The determination of whether a person has 
    ``standing'' to appeal a final decision of the authorized officer has 
    not been changed. Any person whose interest is ``adversely affected'' 
    by a final decision of the authorized officer may appeal the decision. 
    The OHA determines if a party is ``adversely affected'' and thus has 
    standing to bring an appeal. The Department did not adopt the 
    suggestion to send decisions to only affected public land users and 
    parties showing a concrete and particular injury from the decision 
    since this would have the affect of limiting public participation.
        Comments were received on the proposed clarifying amendment to 
    allow the authorized officer to forgo issuance of a proposed decision 
    prior to a final decision where the authorized officer has made a 
    determination in accordance with Sec. 4110.3-3(b) or Sec. 4150.2(d). 
    Some comments were supportive of the change. Others indicated that the 
    change was not needed because BLM currently has the ability to place 
    decisions in effect on issuance or on a date specified in the decision 
    without issuing a proposed decision. Other commenters asserted that the 
    provision raises procedural questions, does not provide security of 
    tenure, impacts private and State lands, removes incentives to settle 
    appeals, creates uncertainty for lending institutions, and lowers 
    property values and thus the local tax base.
        The changes adopted today clarify that in the case of 
    determinations under Sec. 4110.3-3(b) or Sec. 4150.2(d), the authorized 
    officer does not have to first issue a proposed decision. The 
    Department is making this change to clarify what had been implicit in 
    the existing rules. This is consistent with the interpretation in the 
    existing BLM Manual.
        These changes clarify that the authorized officer may act quickly 
    to arrest damage to rangeland resources resulting from conditions such 
    as drought, fire, flood, insect infestation, or when continued grazing 
    use poses an imminent likelihood of significant resource damage. There 
    continues to be a provision to consult with the affected permittees or 
    lessees, the interested public, and the State having lands or 
    responsible for managing resources within the area. The authorized 
    officer will have developed a record prior to taking action which will 
    allow permittees and lessees, the interested public, and the affected 
    State the opportunity to provide pertinent information and to discuss 
    the impacts of adopting a final decision without a protest period. The 
    changes being made preserve the rights of appeal and the ability to 
    seek a stay by those affected by BLM's decisions. Clarifying the 
    existing provision and practice should not create uncertainty for 
    lending institutions nor lower property values and thus the local tax 
    base. Nor should it raise concerns with security of tenure or remove 
    incentives for settling appeals. The Department's intent in adopting 
    this provision is to clarify that the authorized officer does not have 
    to issue a proposed decision prior to a final decision where the 
    authorized officer has made a determination in accordance with 
    Secs. 4110.3-3(b) or 4150.2(d).
        Other comments recommended a notification period for violations, 
    sought an expansion of the protest time period, and suggested a 
    definition of repeated willful violations. The Department is not 
    adopting these suggestions because existing early communication 
    provides sufficient notification and time for protest. Regarding the 
    willful violation suggestion, the Department has concluded that it is 
    more effective to retain discretion to consider each violation of the 
    grazing rules individually to determine the appropriate action.
    Section 4160.3  Final Decisions
        Under the proposed rule, this section would have been amended to 
    clarify the process for filing an appeal and a petition for a stay of a 
    final decision. Decisions would have been implemented at the end of a 
    30-day appeal period except where a petition for stay has been filed 
    with OHA, in which case OHA has, under Sec. 4.21 of this title, a 
    period of 45 days from the end of the appeal period in which to decide 
    on the petition for stay. A stay, if granted, would have suspended the 
    effect of the decision pending final disposition of the appeal. Under 
    the present grazing administration appeals process, decisions other 
    than those pertaining to situations where [[Page 9950]] immediate 
    action was required are automatically stayed upon the timely filing of 
    an appeal.
        The amendment also would have clarified how the Departmental rule 
    at Sec. 4.21 would have been applied and the amount of grazing use that 
    would be allowable when a decision has been stayed. Where an appellant 
    had no authorized grazing use the preceding year, the authorized 
    grazing use would have been required to be consistent with the decision 
    pending a final determination on appeal. Appellants affected by this 
    provision would have included persons that are applicants for permit or 
    lease transfers. Where a decision proposed to change the amount of 
    authorized grazing use, the permitted grazing use would not have 
    exceeded the appellant's previously determined permitted use during the 
    time an appeal is pending. Reference to ephemeral use would have been 
    added to the amendments which would have pertained to levels of use 
    pending determination on appeal. This amendment would also have 
    provided for making decisions effective upon issuance or on a date 
    specified in the decision when necessary to protect the rangeland 
    resources or to facilitate abatement of unauthorized use by closing an 
    area to grazing use under Secs. 4110.3-3 and 4150.2 of this part. These 
    provisions are being adopted as proposed, with minor changes to add 
    references to annual rangeland and OHA and to clarify that the proposed 
    term ``previously permitted use'' means ``authorized use in the last 
    year during which any use was authorized.''
        Many comments addressed the proposed change to conform the grazing 
    appeals process with the general appeals provisions of the Department. 
    Some comments supported the changes, while others reflected the same 
    concern expressed in response to Sec. 4160.1, above. Responses to those 
    comments are not repeated here.
        Some commenters questioned if the change would provide sufficient 
    procedural protections for the permittee or lessee, and add to the 
    number of stays sought from OHA. Other commenters questioned the 
    authorized officer's discretion to make a decision effectively 
    immediately; whether stay provisions would apply; whether the stay 
    process was in conflict with the factual hearing process; and whether 
    decisions should be placed in immediate effect only if ``required for 
    the orderly administration of the range or for the protection of other 
    resource values.''
        It is the Department's intent in making the grazing appeals process 
    consistent with the Department's general appeals process to put 
    decisions in place in a timely manner unless OHA grants a stay. The 
    amendments adopted by today's action preserve the ability to file an 
    administrative appeal and a petition to stay a final decision. The stay 
    provision allows OHA to determine if it is appropriate to stay all or a 
    portion of a final decision.
        The rule adopted today provides for two separate mechanisms for the 
    issuance and appeal of decisions: (1) Making decisions effective at the 
    end of a 30-day appeal period and, if a petition for stay is filed, 
    upon any denial of the petition but not later than 75 days from the 
    date of the decision, or (2) making decisions effective upon issuance 
    or on a date specified in the decision to stop or prevent imminent 
    damage to resources, in accordance with the standards set forth in 
    Secs. 4110.3-3(b) and 4150.2(d). The first mechanism is expected to 
    serve as the usual way in which decisions will be made. Making 
    decisions effective during the 30 day appeal period will be reserved 
    for situations where immediate action is needed to protect rangeland 
    resources or to abate unauthorized use, in accordance with the 
    standards set forth herein.
        The rules governing the consideration of petitions to stay a 
    decision pending appeal are provided at 43 CFR 4.21(b)(i) through (iv), 
    and are not changed by this rulemaking. The standards are (i) the 
    relative harm to the parties if the stay is granted or denied; (ii) the 
    likelihood of the appellant's success on the merits; (iii) the 
    likelihood of immediate and irreparable harm if the stay is not 
    granted; (iv) whether the public interest favors granting the stay. As 
    it does currently, BLM will make available to involved persons the 
    required components of an appeal and petition to stay a decision at the 
    time a final decision is issued. A party will not have to choose 
    between a hearing or seeking a stay. A hearing before an administrative 
    law judge will review the facts associated with an appeal, while OHA 
    will consider stay petitions consistent with the standards at 43 CFR 
    4.21(b)(1).
        In the case of decisions under Secs. 4110.3-3(b) and 4150.2(d), the 
    Department has concluded that the rule and BLM Manual provide 
    sufficient guidance to the authorized officer. For this reason, the 
    Department has not adopted the suggestion to place decisions in effect 
    immediately only if ``required for the orderly administration of the 
    range or the protection of other resource values.'' As discussed above, 
    the Department has concluded that this authority is needed to stop or 
    prevent imminent damage to rangeland resources or to abate unauthorized 
    use. The amendments adopted today may result in an increased number of 
    stay petitions, but this is balanced by the benefits of making the 
    grazing appeals process consistent with the general Departmental 
    process.
    Section 4160.4  Appeals
        Under the proposed rule, this section would have provided 
    instructions regarding the filing of appeals and petitions to stay 
    decisions. When a final decision is issued, all parties whose interests 
    have been adversely affected would have been able to file an appeal and 
    a petition for stay of the decision within 30 days from the date of 
    receipt of a final decision, or 30 days from the date a proposed 
    decision becomes final in the absence of a protest. Under the process 
    of Sec. 4.21 of this title, the OHA is allowed 45 days from the end of 
    the appeal period to review the petition and issue a determination. 
    Under the proposal, a decision would not have been in effect during the 
    consideration of a petition for stay unless it were made effective for 
    reasons under Sec. 4110.3-3(b) or 4150.2(d). The provision would have 
    included a requirement for prompt transmittal by the authorized officer 
    of appeals and petitions for stay to the OHA. These provisions are 
    being adopted as proposed.
        Comments filed on this section suggested alternative time limits 
    and questioned if the amendments would encourage appeals by the 
    interested public. Commenters also inquired whether there should be a 
    presumption of grazing use when an applicant had no grazing use the 
    preceding year.
        The Department has not adopted the suggestion that the time for 
    appeal or OHA review of petitions for stay should be expanded or 
    limited. Past experience with the timing periods for appeals and stays 
    has indicated that these timing requirements are reasonable. A 
    permittee or lessee will almost always be aware of impending 
    implementation of a decision before the final decision is issued. In 
    addition, except for some cases that require that decisions be placed 
    in immediate effect, the permittee or lessee is provided with a 
    proposed decision, which may be protested, at least 15 days before a 
    final decision is issued. It is the Department's intent in involving 
    the interested public at early stages to reduce the number of protests 
    and appeals because all of the parties will have an understanding of 
    the factors considered in issuing a decision.
        The Department has not adopted the view that applicants without 
    grazing use [[Page 9951]] the preceding year should not be allowed to 
    graze livestock at the levels allowed by a decision that is under 
    appeal. This provision is consistent with the basic concept of subpart 
    4160 and 43 CFR 4.21 that the decision of the authorized officer will 
    be put into effect unless a stay is granted. The Department intends 
    that this concept apply consistently throughout the rules pertaining to 
    livestock grazing.
    Subpart 4170--Penalties
    Section 4170.1-1  Penalty for Violations
        The proposed rule would have been amended to provide for a penalty 
    for unauthorized leasing and subleasing in the amount of two times the 
    private grazing land lease rate for the 17 western States as supplied 
    annually by the National Agricultural Statistics Service, plus all 
    reasonable expenses incurred by the United States in detecting, 
    investigating, and resolving the violation. This penalty would have 
    been more consistent with the penalties provided for unauthorized use 
    and simpler to administer than the penalty provided in the existing 
    rules. This would have facilitated consistent application of the 
    provisions by BLM. The Department has adopted the provision as 
    proposed, with minor clarifying changes. The Department received few 
    comments on this section. Some suggested that penalties should be based 
    on public land AUM values, not private land values. Others stated that 
    the rate suggested in the proposal was punitive. The concept of 
    assessing penalties upon ``value of forage'' removed is not new. Under 
    PRIA and the existing Federal grazing fee formula (from 1985 to 
    present), BLM has assessed penalties for unauthorized use on that 
    basis.
        Others stated that using twice the average private rate of all 17 
    states would be a bargain in some cases, or that BLM should use the 
    private rate for each area. The Department agrees that the private rate 
    for each State should be used to calculate the fee. The final language 
    of the rule is revised to clarify this point.
        Some commenters stated that violations should not be penalized 
    unless they were willful. One common comment suggested that penalties 
    should apply to other public land users, not just grazing permittees. 
    Others suggested that the authorized officer should have the authority 
    to cancel a lease or permit, but not be required to do so.
        Regarding commenters' concerns about willful violations, the 
    penalties discussed in this section apply specifically to unauthorized 
    leasing and subleasing. Leasing or subleasing agreements are oral or 
    written contractual arrangements between permittees or lessees and 
    third parties, even though the grazing privileges obtained by Federal 
    permittees or lessees is not transferrable or assignable without 
    approval. Such arrangements are willful actions. The authorized officer 
    must produce competent evidence to support a finding that the permittee 
    has in fact violated Sec. 4140.1(a)(6). This section does not alter the 
    procedural rights of permittees under this part. It merely establishes 
    the penalty for unauthorized grazing of livestock owned by persons 
    other than the permittee or lessee or their sons and daughters as 
    provided in this part. It does not apply to authorized base property 
    leases or subleases or authorized pasturing agreements. Other penalties 
    set forth elsewhere in these rules do pertain to public land users who 
    enter public lands without authorization and remove publicly-owned 
    assets or damage public lands.
        Some commenters suggested that payment of expenses should be 
    limited to specific legal costs, and that payment of salaries of 
    Federal personnel should not be included. Others stated that none of 
    the statutes listed by BLM provide for revocation of permits as a 
    permissible penalty. The Secretary has adequate legal authority to 
    provide for penalties for such violations. The penalties adopted in 
    this section are fair and consistent with other similar programs, and 
    contribute to BLM's effective enforcement of the grazing program. 
    Pricing Federal forage at market rates can be a very effective 
    deterrent to the use of unauthorized grazing of livestock owned by 
    persons other than the permittee or lessee except for sons and 
    daughters of permittees and lessees.
        A typical comment discussed the fact that the proposal imposes the 
    same penalty for unauthorized subleasing as for willful trespass, and 
    suggested that this was excessive since the livestock involved with the 
    subleasing were probably included in an existing authorized permit and 
    therefore a permittee subject to a penalty for subleasing would have 
    paid the grazing fee for authorized use plus the penalty. The 
    Department believes that individuals who have violated the subleasing 
    provisions should be penalized to the same extent as those who have 
    trespassed. In some cases, trespass violations determined to be 
    repeated and willful will result in a penalty of three times the 
    private grazing land lease rate, plus administrative expenses. 
    Experience in resolving cases of livestock trespass has shown a need 
    for a gradient of penalties that can be specific for certain 
    nonwillful, willful, and repeated willful offenses. In the Department's 
    determination, unauthorized pasturing or other unauthorized subleasing 
    will constitute a willful violation of the rules pertaining to grazing 
    and will be discouraged by the penalty of twice the private rate plus 
    administrative expenses. Should such violations be repeated, other 
    enforcement mechanisms are available.
        Others stated that the proposal does not take into account use upon 
    intermingled private land maintenance of improvements, or suggested 
    that some sort of penalty should be available to the authorized officer 
    to penalize a permittee, short of cancelling a permit. Differing land 
    ownership patterns could make these provisions more difficult to 
    enforce. However, the provisions adopted do provide for authorizing 
    grazing of public lands by livestock owned by persons other than the 
    permittee or lessee. Penalties for violations of the subleasing or 
    pasturing provisions would be limited to the public land forage AUMs 
    consumed. The authorized officer does have discretion to use lesser 
    sanctions than permit cancellation when warranted.
        Others asserted that the penalties were not serious enough to be 
    effective, and suggested that there should be a debarment provision. 
    The penalty established in the final rule is intended to serve as a 
    strong deterrent to unauthorized pasturing of livestock owned by other 
    than permittees, lessees, or their sons or daughters. Setting the 
    penalty at two times the private grazing land lease rate plus 
    administrative expenses will ensure that there is no financial impetus 
    for committing such a violation, i.e. an effective penalty must result 
    in a cost greater than the reward. The provisions adopted today ensure 
    this by using the private land rate, which in itself should generally 
    exceed the cost of public land forage, and then doubling that figure. 
    Administrative costs to be added to the penalty merely serve as a 
    further disincentive to violate the provision and highlight the 
    expenses to the public that result from the detection and resolution of 
    violations of the provisions.
        In accordance with the above discussion, the Department has decided 
    to adopt the provision as proposed, with a few changes. The phrase 
    ``for the 17 western States'' is revised to ``in each State'' and is 
    moved to modify the phrase ``required to pay'' to provide a penalty 
    that is tied to the private land [[Page 9952]] lease rate in each 
    individual State. This responds to commenters' suggestions and makes 
    the penalty more proportionate to the benefit received from the 
    unauthorized use.
    Section 4170.1-2  Failure To Use
        This section would have been amended to clarify the consultation 
    requirements imposed on BLM when an authorized officer is considering 
    taking action to cancel, in whole or in part, a permit or lease in 
    response to failure to use. This section also would have clarified that 
    failure to make substantial grazing use as authorized means failure to 
    make active grazing use as approved on a grazing use authorization. 
    Failure to make authorized use may result in monitoring studies 
    providing false information which can cause decisions to over-obligate 
    the forage resource of the rangeland.
        Permittees and lessees would have been required to apply and 
    receive approval for nonuse or conservation use. Failure to apply for 
    conservation use or nonuse prevents BLM from having an opportunity to 
    determine if conservation use or nonuse is in conformance with the 
    rules at 43 CFR 4130.2(g) and applicable planning documents.
        The proposal would also have included failure to maintain or use 
    water base property in the grazing operation as a type of failure to 
    use. Providing for the use of such waters is critical to the effective 
    administration of grazing within an allotment. Water property is 
    crucial to the proper use and operation of livestock grazing in water 
    base areas. If base property waters are not kept in serviceable 
    condition, livestock are forced to overuse the service areas of the 
    remaining waters.
        BLM received very few comments on this section. The Department has 
    decided to adopt the substance of the provision as proposed, with 
    editorial changes for clarity. The most common issue raised was what 
    readers viewed as an exemption from the ``substantial use'' provisions 
    for conservation use. Some commenters who specifically supported 
    cancellation for non-use objected to the exemption for conservation 
    use. Others stated this was a double standard, and that it made no 
    difference to the resource if someone with grazing use simply did not 
    use the permit or if someone had conservation use. Still others stated 
    that permittees with conservation use should be subject to the 
    cancellation provisions for failure to maintain or use water base 
    property.
        The Department disagrees that conservation use is an exemption from 
    the substantial use standard. Conservation use is an active use, and 
    therefore provisions regarding failure to use do not apply. Issues 
    regarding conservation use are discussed at Sec. 4130.2.
        Some comments asserted there should be no penalty for using a 
    permit less than the permitted use, and that fees collected should be 
    based on actual AUMs used. Others asserted that the proposed changes 
    eliminate any incentive on the part of BLM to reach an agreement with 
    the permittee, and suggested limiting cancellation to situations where 
    the permittee or lessee has failed to maintain use without reason, has 
    unreasonably failed to maintain or use base property or to install or 
    maintain range improvements.
        There is no penalty for using less than permitted use provided that 
    the authorized officer has approved either temporary nonuse or 
    conservation use. The Department does not believe that the provisions 
    will be a disincentive to reach an agreement. The provision does not 
    displace the cooperative processes set out in FLPMA, as amended by 
    PRIA. Parties to be consulted are limited to permittees and lessees 
    because any action taken in response to failure to make use will be a 
    ministerial action addressing a requirement of the rule and permit or 
    lease.
        Other commenters asked what ``failure to maintain or use water-
    based property in the grazing operations for two consecutive grazing 
    fee years'' meant. ``Failure to maintain or use water-based property. . 
    . for two consecutive grazing fee years'' means that the permittee has 
    not had cattle on the range for two consecutive years, has not allowed 
    livestock to use the base water, has neglected to conduct necessary 
    repair and maintenance activities of the base water for two consecutive 
    years, or a combination of these three. In response to the commenters' 
    concerns, the final rule as adopted is revised to clarify this point.
        One commenter stated that the provision assumes the permittee has 
    the funds to purchase livestock or maintain base property. The 
    commenter was concerned that if the permittee could not get funding, 
    BLM might place a lien on the permittee's base property, thus reducing 
    its collateral value. The Department does assume that the permittee has 
    the funds necessary to maintain a grazing operation, including the 
    purchase or lease of livestock and the maintenance of base water 
    facilities. The BLM will not place liens on base property. If a 
    permittee cannot afford to make use of, or maintain, base water in any 
    one year, there will be no penalty under thus provision. However, if 
    the situation extends into the second year, then BLM will consider 
    cancelling whatever amount of permitted use the permittee or lessee has 
    failed to use, as provided in this section of the final rule.
        Regarding specific requests for definitions, the Department 
    believes the use of the term ``substantial use'' is sufficient without 
    definition for purposes of national rules. The meaning of the word 
    ``substantial'' in a legal context has been well-established in the 
    courts.
        In accordance with the above discussion, the Department has decided 
    to adopt the substance of the provision as proposed, with editorial 
    changes for clarity. The language in the final section is rewritten to 
    clarify the meaning of the ``2 consecutive grazing fee years'' 
    provision.
    Section 4170.1-3 Federal or State Animal Control and Environmental 
    Protection or Resource Conservation Regulations or Laws
        The proposed rule would have amended this section to make subject 
    to penalty under Sec. 4170.1-1 violations of Federal or State 
    regulations or laws that are listed as prohibited acts under 
    Sec. 4140.1 and that pertain to predator animal and pest control, wild 
    free-roaming horses and burros, natural and cultural resources, 
    resource conservation, or the environment. The heading of this section 
    would have been amended to reflect the change in scope. These changes 
    were proposed to conform with similar amendments in Sec. 4140. The 
    types of violations that may result in the withholding, suspension or 
    cancellation of a permit or lease under Sec. 4170.1-1(a) would have 
    been expanded to include violations of regulations and laws that 
    pertain to the protection of the environment and conservation of 
    natural and cultural resources where public lands are involved or 
    affected, the violation is related to grazing use authorized by the 
    permit or lease, and the permittee or lessee has been found to be in 
    violation by the relevant court or other authority and no appeals are 
    outstanding. Principal users of the rangelands should be expected to 
    comply with such laws and regulations. The proposed amendments would 
    have adopted language of the grazing administration regulations that 
    existed before 1984. Today's action adopts the provision with minor 
    clarifying changes, and also moves the entire provision to 
    Sec. 4140.1(c) for clarity.
        Commenters on this section were strongly divided on its provisions. 
    Some asserted, as they had on Sec. 4140.1 of the proposal, that 
    inclusion of other statutes [[Page 9953]] in the penalty provisions of 
    the grazing program was outside the Secretary's legal authority, which 
    they asserted applies only to public lands governed by a grazing 
    permit. Others asserted that the provisions placed too much emphasis on 
    other values, that under this program only grazing values should be 
    considered.
        Section 2 of TGA directs the Department to preserve public 
    rangeland and its resources from destruction or unnecessary injury and 
    to provide for the orderly use, improvement, and development of the 
    range to ensure that the public grazing lands are administered in a 
    reasonable and orderly fashion. The Department believes that the 
    language of this section represents a reasonable and practical balance 
    between those responsibilities and limitations placed on it by resource 
    and other practical considerations.
        The Secretary has full authority to establish terms and conditions 
    for grazing permits to ensure compliance with the laws affecting public 
    lands. Consideration of natural and cultural resource values is fully 
    consistent with the Department's responsibility for multiple resource 
    management under its statutory authorities. The Department cannot 
    condone violations of other statutes and expects that principal users 
    of public lands, such as grazing permittees, will comply with these 
    statutes in the conduct of their activities. These related statutes do 
    have separate enforcement provisions that would be unaffected by this 
    rule. However, as discussed at Sec. 4140.1, there are limitations 
    placed on the Secretary's authority to impose penalties for violations 
    under other laws. These limitations are that public land administered 
    by the Bureau of Land Management must be involved or affected, the 
    violation must be related to grazing use authorized by a permit or 
    lease, and the permittee or lessee must be convicted or otherwise found 
    to be in violation of any of these laws or regulations by a court or by 
    final determination of an agency charged with the administration of 
    these laws or regulations, with no further appeals outstanding.
        Some commenters asked whether lesser violations of State laws would 
    be cause for loss of a permit, or suggested that only repeated, willful 
    violations should be penalized. Others asserted that paragraph (c) 
    should be amended to limit the provision to penalizing violations 
    resulting from court decisions.
        The Department does not intend that de minimis violations of State 
    or even Federal laws or regulations will result in penalties affecting 
    the grazing permit or lease under this provision. However, the rule as 
    adopted will not affect how violations of State or Federal law or 
    regulations are dealt with initially by the various enforcement or 
    regulatory agencies.
        Others stated that the provisions were too narrow, and should apply 
    to additional statutes addressing natural resource protection. One 
    specific suggestion was the American Indian Religious Freedom Act. Some 
    of these commenters suggested that penalties for violation be 
    nondiscretionary. Other comments suggested omitting paragraph (c) 
    altogether on the basis that there is no legal argument to support such 
    a limitation on the Department's responsibility under FLPMA and TGA to 
    promulgate and enforce its own regulations.
        As stated in the preamble to the proposed rule, a list of relevant 
    laws will be made available to grazing permittees and lessees. No State 
    or Federal statutes were added to the list presented in the preamble to 
    the proposed rule.
        In accordance with the above discussion, the Department has decided 
    to retain the substance of Sec. 4170.1-3, as proposed. However, in 
    response to comments on Secs. 4140.1 and 4170.3, the Department has 
    moved the entire section establishing conditions limiting when 
    violations of certain laws and regulations would constitute prohibited 
    acts for the purposes of grazing administration to Sec. 4140.1(c). This 
    change from the proposed rule is intended to clarify the provision by 
    removing cumbersome cross-references and by consolidating discussions 
    of prohibited acts. Further discussion of this provision can be found 
    at that section.
    Section 4170.2-1  Penal Provisions Under the Taylor Grazing Act
        Under the proposal, this section would have clarified a confusing 
    existing statement by rewriting the provision to state that any person 
    who willfully commits an act prohibited under Sec. 4140.1(b), or who 
    willfully violates approved special rules and regulations, is 
    punishable by a fine of not more than $500, under the penal provisions 
    of TGA.
        The Department received no comments on this section, and it is 
    finalized as proposed.
    Section 4170.2-2  Penal Provisions Under the Federal Land Policy and 
    Management Act
        The proposed rule would have amended this section to adopt the 
    alternative fines provisions of Title 18 U.S.C. section 3571, which was 
    enacted after enactment of FLPMA. This action would have strengthened 
    the protection of natural or cultural resources under the grazing 
    program. Other language changes consistent with similar changes to 
    Sec. 4170.2-1 regarding willful commission of acts prohibited under 
    Sec. 4140.1(b) would also have been made.
        The Department received very few comments on this section. The 
    major theme of the comments was that the establishment of civil and 
    criminal sanctions are outside the authority of the Secretary, but 
    rather are within the exclusive jurisdiction of the legislature.
        The Department disagrees that the provisions of this section are 
    outside the authority of the Secretary. The Secretary has full 
    authority to enforce provisions of FLPMA, TGA and other statutes, and 
    has authority to promulgate rules to implement FLPMA and other statutes 
    pertaining to public lands (43 U.S.C. 1740). Section 4170.2-2 
    establishes the penalty provision for criminal acts.
    Subpart 4180  Fundamentals of Rangeland Health and Standards and 
    Guidelines for Grazing Administration (Titled ``National Requirements 
    and Standards and Guidelines for Grazing Administration'' In Proposed 
    Rule)
        Under the proposed rule, this subpart would have been added to 
    establish national requirements for the administration of grazing on 
    public lands. It would also have included a provision for the 
    development of State or regional standards and guidelines for grazing 
    administration. These requirements, standards, and guidelines were 
    proposed to establish clear direction for managing rangelands in a 
    manner that would achieve or maintain ecological health, including the 
    protection of habitats of threatened or endangered species and 
    candidate species, and the protection of water quality.
        The heading of the subpart is modified from the proposed rule, as 
    noted above.
    Section 4180.1 Fundamentals of Rangeland Health (Titled ``National 
    Requirements for Grazing Administration'' In Proposed Rule)
        Under the proposed rule, this new section would have established 
    national requirements for grazing administration on public rangelands. 
    Permits, leases, other grazing authorizations and grazing related plans 
    and activities on public lands would have incorporated, as applicable, 
    grazing practices that help achieve healthy, properly functioning 
    ecosystems and riparian systems. All [[Page 9954]] grazing-related 
    actions on public lands would have been required to conform with the 
    national requirements. Where the national requirements were not being 
    met, the authorized officer would have been required to take corrective 
    action prior to the start of the next grazing season. This would have 
    included actions such as reducing livestock stocking rates, adjusting 
    the season or duration of livestock use, or modifying or relocating 
    range improvements. Nothing in the national requirements relating to 
    riparian systems was to be construed to create a water right based on 
    Federal law. The national requirements presented in the proposed rule 
    have been retitled ``fundamentals of rangeland health'' to better 
    reflect the Department's view that they represent the basic components 
    of healthy rangelands. These components will be referred to as the 
    ``fundamentals of rangeland health'' in the discussion below.
        The Department received many comments on this section. Comments 
    suggested that establishing fundamentals that were unique to grazing 
    administration discriminated against public land livestock operators 
    and questioned the statutory authority of the Secretary to promulgate 
    such provisions. Other comments expressed the view that the provisions 
    were too lax; still others asserted that the section discounted the 
    role that herbivores have played in the history of the public 
    rangelands and would create problems and complexities in BLM grazing 
    program due to the variation in standards and guidelines.
        It is the Department's intent to establish through the fundamentals 
    of rangeland health and the applicable standards and guidelines 
    appropriate grazing practices to help ensure productive rangelands. 
    These 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. It is not unusual for BLM 
    programs to have unique requirements that pertain to a particular group 
    of activities on the public lands, for example the Onshore Orders 
    regulating portions of the oil and gas program.
        The fundamentals are statements of the conditions that are 
    representative of healthy rangelands across the West, and, as such, are 
    relatively broad as pointed out in some comments. The fundamentals 
    establish the Department's policy of managing for healthy rangelands. 
    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. State or regional standards and guidelines will provide 
    the measures and guidance needed to develop terms and conditions of 
    permits, leases, and other authorizations, AMPs and other activity 
    plans, cooperative range improvement agreements and to issue range 
    improvement permits in a manner that will result in maintaining or 
    making significant progress toward healthy, functional rangelands.
        The focus on the fundamental requirements of healthy rangelands 
    does not discount the role played by herbivores. Applying the 
    principles of ecosystem management to grazing administration requires 
    consideration of herbivores, both wild and domestic. The historical 
    role of herbivores is discussed in some detail in the FEIS on this 
    rule.
        The intent in adopting this section is to facilitate compliance 
    with relevant requirements of Acts such as the ESA and the Clean Water 
    Act and to ensure functional rangelands in order to improve ecological 
    conditions while providing for sustainable development. The Department 
    does not agree with some commenters who asserted that the fundamentals 
    would exceed the requirements of the relevant statutes. The 
    fundamentals, along with State or regional standards and guidelines, 
    will be used to establish management practices that are appropriate for 
    the particular region that lead toward or maintain healthy, sustainable 
    rangelands and provide security of tenure for permittees and lessees.
        Regarding comments that the section creates complexities and 
    problems for BLM's grazing program due to State or regional variations, 
    the Department has concluded that such variation is necessary to 
    address the specific conditions present within individual areas. The 
    fundamentals, however, provide the basic components of healthy 
    rangelands that will apply to all States and regions (exclusive of 
    Alaska). These overarching principles will be supplemented by standards 
    and guidelines that will be tailored to more local conditions.
        Finally, some commenters also asserted that the fundamentals of 
    rangeland health and the standards and guidelines would result in a 
    ``taking'' if grazing use was modified as a result of this section. 
    Issues associated with ``takings'' are discussed in the General 
    Comments section.
        In accordance with the above discussion, the Department has decided 
    to adopt the substance of the provision as proposed with reordering and 
    modifications for clarity, adding wording that requires significant 
    progress toward meeting the fundamentals, and rewording to incorporate 
    more fully a watershed management approach.
    Section 4180.2  Standards and Guidelines for Grazing Administration
        Under the proposed rule, this new section would have established 
    the requirements for the development of standards and guidelines for 
    grazing administration on public lands, and guiding principles for 
    their development. All grazing related actions within the affected area 
    would have been required to conform with the appropriate standards and 
    guidelines. The geographical area to be covered by the standards and 
    guidelines to be developed pursuant to this section were to be 
    determined by the BLM State Director. Standards and guidelines would 
    have been required to be developed for an entire State, or for an 
    ecoregion including portions of more than one State, except where the 
    geophysical or vegetal character of an area is unique and the health of 
    the rangelands could not be ensured by using standards and guidelines 
    developed for a larger geographical area. The preparation of standards 
    and guidelines would have involved consultation with multiple resource 
    advisory councils, coordination with Indian tribes, and Federal 
    agencies responsible for the management of lands within the affected 
    area. Public participation would have included the involvement of the 
    interested public.
        The proposed rule would have established guiding principles to be 
    addressed in the development of standards and guidelines. The guiding 
    principles for standards to be developed were to have pertained to the 
    minimum soil, water and biological conditions required for rangeland 
    ecosystem health. All standards for grazing administration would have 
    been required to address factors relating to soil stability and 
    watershed function, the distribution of nutrients and energy, and the 
    recovery mechanisms of plant communities and riparian functioning 
    conditions. The guiding principles for the development of guidelines 
    for grazing administration were to have pertained to the types of 
    management actions necessary to ensure that the standards could be met. 
    Included in [[Page 9955]] these guiding principles were the 
    requirements that State or regional guidelines address grazing 
    practices that can be implemented to benefit threatened or endangered 
    species and candidate species, and to maintain, restore or enhance 
    water quality; critical periods of plant growth or regrowth and the 
    need for rest from livestock grazing; situations in which continuous 
    season-long grazing, or use of ephemeral rangelands, could be 
    authorized; the allowable types and location of certain range 
    improvements and management practices; and utilization or residual 
    vegetation limits.
        The proposed rule would have provided that where State or regional 
    standards and guidelines were not developed within 18 months after the 
    effective date of the proposed rule, fallback standards and guidelines 
    included in the text of the rule would be implemented. The fallback 
    standards addressed the same factors relating to soil stability and 
    watershed function, the distribution of nutrients and energy, the 
    recovery mechanisms of plant communities, and riparian functioning 
    condition as provided for under the guiding principles. The fallback 
    guidelines addressed the grazing management practices that would be 
    acceptable across a broad variety of rangelands. Both the proposed 
    fallback standards and fallback guidelines were general in order to be 
    applicable to most western rangelands.
        As with the previous section, some commenters questioned whether 
    the provisions for standards and guidelines were discriminatory and 
    whether they exceeded the requirements of numerous statutes. These 
    comments were addressed above under the discussion of Sec. 4180.1. Some 
    commenters expressed views that the standards and guidelines should be 
    developed in coordination, cooperation and consultation with 
    permittees, that local grazing advisory boards should be retained and 
    involved, and that local and county government should be consulted. 
    Some commenters questioned the expertise of the RACs to develop 
    standards and guidelines and questioned why the interested public and 
    the public in general is included in the development process.
        Some commenters asserted that the 18-month development period is 
    too short and that the fallback provisions should be eliminated. Others 
    questioned whether there should be any waiting period before the 
    fallback standards and guidelines come into effect.
        Some commenters asserted that the standards and guidelines should 
    be developed through the land-use planning process. Comments were 
    received that questioned the efficacy of the standards and guidelines 
    while some felt the standards and guidelines were too strict and would 
    harm livestock operations. Finally, a few commenters questioned the 
    intent and wording of individual guiding principles and fallback 
    standards and guidelines.
        The Department recognizes the need for an effective partnership 
    with livestock operators and will continue to work closely with them. 
    The Department has also concluded that public land management in 
    general will be improved by providing for a more inclusive partnership 
    which extends to RACs, the interested public, and State and local 
    government. The RACs, the interested public and the public in general 
    will be involved in the development of the standards and guidelines. 
    RAC members will have a variety of qualifications that will contribute 
    to the standards and guidelines development process. Grazing permittees 
    and lessees will be represented on the RACs and will have a variety of 
    opportunities to provide input to BLM through the RACs and public 
    forums during the development of State or regional standards and 
    guidelines. The RACs and their subgroups will be able to provide 
    technical advice in a manner similar to the former grazing advisory 
    boards, while at the same time representing a broader array of 
    interests. For further discussion of member qualifications and 
    experience, see section-by-section analysis of subpart 1780.
        The Department has concluded that the 18-month time frame for 
    development of the State or regional standards and guidelines will 
    provide adequate time to develop appropriate standards and guidelines 
    for several reasons. First, the standards and guidelines build off of 
    current range science, existing policies and land-use planning 
    decisions concerning grazing activities. Second, it is anticipated that 
    any additional NEPA analysis that may be needed can be tiered from the 
    FEIS for this rule and incorporate analyses of other NEPA documents. 
    The Department believes that an 18-month period is necessary to allow 
    opportunity to consider local needs and concerns. In the long term, the 
    Department believes that a development process that considers local 
    circumstances along with national priorities will produce superior 
    standards and guidelines.
        The fallback standards and guidelines are intended to provide 
    protection should the development of the State or regional standards 
    take longer than anticipated. The fallbacks are relatively general 
    because they are intended to be applicable wherever State or regional 
    standards and guidelines have not been put into effect within 18 months 
    of the effective date of this final rule. The fallback provisions 
    cannot be as specific or detailed as State or regional standards and 
    guidelines that will be tailored to the conditions and needs of each 
    State or region.
        Concerning the comment that the standards and guidelines should be 
    developed through the land-use planning process, State or regional 
    standards or guidelines that are inconsistent with existing land use 
    plans will be analyzed in land use plan amendments. Management 
    decisions such as resource condition objectives, thresholds, 
    stipulations, and terms and conditions of BLM use authorizations that 
    have been or are developed for purposes other than State or regional 
    standards and guidelines for grazing administration are not subject to 
    the provisions of developing and approving standards or guidelines 
    presented in Sec. 4180.2. For example, an AMP decision that livestock 
    use should not exceed a specified level of usage would not constitute a 
    standard that would be subject to the provisions of Sec. 4180.2, but 
    would remain as an AMP decision. However, the Department expects that 
    the merits of officially adopting existing land use plan and other 
    management decisions as State or regional standards or guidelines will 
    be considered and that many proven practices will serve as the basis 
    for State or regional standards or guidelines.
        The fundamentals of rangeland health, guiding principles for 
    standards and the fallback standards address ecological components that 
    are affected by all uses of public rangelands, not just livestock 
    grazing. However, the scope of this final rule, and therefore the 
    fundamentals of rangeland health of Sec. 4180.1, and the standards and 
    guidelines to be made effective under Sec. 4180.2, are limited to 
    grazing administration. Under this final rule, actions are to be taken 
    by the authorized officer upon determining that grazing management 
    practices and levels of use on public lands are significant factors in 
    preventing achievement of the standards and conformance with the 
    guidelines. Application of the principles contained in subpart 4180 to 
    uses of public rangelands other than authorized grazing activities 
    would require separate action by BLM or the Department.
        Some commenters questioned how the PACFISH standards and guidelines 
    affect the standards and guidelines developed in this section. The 
    Department recognizes that [[Page 9956]] coordination between the 
    PACFISH effort and BLM range program is essential. The Rangeland Reform 
    '94 EIS considered cumulative impacts of PACFISH and rangeland reform. 
    Nothing in subpart 4180 is intended to affect special planning efforts 
    such as those related to anadromous fish habitat (PACFISH) or the Upper 
    Columbia River Basin EIS. These are separate efforts that will be 
    coordinated, as appropriate, with activities under subpart 4180.
        Concerning the comment that the standard and guideline provisions 
    are too strict and will drive livestock operators out of business, the 
    guiding principles for the State or regional standards and guidelines 
    are designed to allow State and regional issues to be considered while 
    still resulting in significant progress toward established goals. 
    Specific quantitative assessment methods for the listed items were not 
    proposed because the Department believes specific assessment 
    methodologies should be chosen in light of more site-specific 
    considerations.
        The guiding principles for standards and guidelines require that 
    State or regional standards and guidelines address the basic components 
    of healthy rangelands. The Department believes that by implementing 
    grazing-related actions that are consistent with the fundamentals of 
    Sec. 4180.1 and the guiding principles of Sec. 4180.2, the long-term 
    health of public rangelands can be ensured. The fallback standards and 
    guidelines will also lead to improved rangeland health, but the 
    fallbacks do not provide the same opportunities for tailoring to meet 
    more-local resource conditions and livestock management practices.
        Standards and guidelines will be implemented through terms and 
    conditions of grazing permits, leases, and other authorizations, 
    grazing-related portions of activity plans (including AMPs), and 
    through range improvement-related activities. The Department 
    anticipates that in most cases the standards and guidelines themselves 
    will not be terms and conditions of various authorizations but that the 
    terms and conditions will reflect the standards and guidelines. For 
    example, a standard for maintaining water quality may be implemented 
    via a condition of a permit that livestock will not be allowed to 
    occupy specified riparian areas during a certain time of year. In 
    assessing the health of rangelands to determine whether action of the 
    authorized officer is necessary, the BLM will generally consider the 
    extent to which standards are being met and guidelines followed across 
    the area of a grazing allotment or group of allotments. The Department 
    intends that failing to comply with a standard in an isolated area 
    would not necessarily result in corrective action.
        The Department recognizes that it will sometimes be a long-term 
    process to restore some rangelands to properly functioning condition. 
    The Department intends that the standards and guidelines will result in 
    a balance of sustainable development and multiple use along with 
    progress towards attaining healthy, properly functioning rangelands. 
    For that reason, wording has been adopted in this final rule that will 
    require the authorized officer to take appropriate action upon 
    determining that existing grazing management practices are failing to 
    ensure significant progress toward the fulfillment of the standards and 
    toward conformance with the guidelines.
        Also, the Department recognizes that it is not possible to complete 
    all assessments of rangeland health and to take appropriate corrective 
    action, pursuant to Sec. 4180.2(c) of this final rule, immediately upon 
    completion of the State or regional standards and guidelines or upon 
    the fallbacks taking effect. The Department intends that assessments 
    and corrective actions will be undertaken in priority order as 
    determined by BLM.
        In some areas, it may take many years to achieve healthy 
    rangelands, as evidenced by the fundamentals, established standards, 
    and guidelines. The Department recognizes that, in some cases, trends 
    may be hard to even document in the first year. The Department will use 
    a variety of data including monitoring records, assessments, and 
    knowledge of the locale to assist in making the ``significant 
    progress'' determination. It is anticipated that in many cases it will 
    take numerous grazing seasons to determine direction and magnitude of 
    trend. However, actions will be taken to establish significant progress 
    toward conformance as soon as sufficient data are available to make 
    informed changes in grazing practices.
        Many commenters had suggestions or concerns specific to one or more 
    of the guiding principles or fallback standards or guidelines. 
    Commenters asserted the requirement pertaining to A-horizon soils was 
    unrealistic, that suitability determinations need to be addressed, and 
    that greater specificity should be provided for water quality and the 
    protection of riparian areas. Commenters also stated that the standards 
    and guidelines should include a prohibition on exceeding the livestock-
    carrying capacity and should require an upward trend in soil and 
    vegetation.
        The Department agrees that the A-horizon requirement would not 
    serve as a useful standard on some BLM-administered lands since some 
    naturally-occurring soil structures do not conform to this requirement. 
    The standard that referenced ``A'' soil horizons has not been carried 
    forward in this final rule. Comments suggesting the addition of 
    suitability determinations have been addressed in the section-by-
    section analysis for Sec. 4130.2. This final rule does not add a 
    requirement for suitability determinations. The Department has decided 
    not to add more detailed guidance pertaining to water quality or 
    riparian areas but the wording of the guiding principles and fallbacks 
    has been modified from that of the proposed rule to provide greater 
    focus on watershed function. The Department intends that more specific 
    provisions will be considered in the development of State or regional 
    standards and guidelines following consideration of public input and 
    the site-specific characteristics of the public rangelands. The concern 
    that grazing use not be allowed to exceed the livestock carrying 
    capacity is dealt with in Secs. 4110.2-2 and 4110.3 of this final rule. 
    The suggestion that public rangelands be required to exhibit an upward 
    trend in condition is adopted, in part, through the addition of the 
    requirement that action be taken to ensure significant progress toward 
    the fulfillment of the standards and toward conformance with the 
    guidelines when the authorized officer determines that grazing 
    management practices or levels of use are significant factors in 
    failing to meet the standards or conform with the guidelines.
        References to meeting the minimum requirements of the ESA and State 
    water quality standards have been removed from the fallback standards 
    and guidelines. Both ESA requirements and water quality standards are 
    included in the fundamentals presented in Sec. 4180.1 of this final 
    rule and, therefore, do not need to be restated in the fallbacks. The 
    fallback guidelines retain reference to promoting the restoration and 
    maintenance of habitats of special status species, to make clear that 
    it is the Department's intent to take reasonable measures to interrupt 
    the decline of such habitats.
        References to minimum ESA requirements and State water quality 
    standards have been retained in the guiding principles for the 
    development of State or regional standards and guidelines. The 
    Department intends that, as State or regional standards and 
    [[Page 9957]] guidelines are developed, more specific and useful 
    application of ESA requirements and water quality standards can be 
    made. For instance, habitat requirements may be presented in measurable 
    terms or tied to specific areas within the State or region.
        In accordance with the above discussion, the Department has decided 
    to adopt the provision as proposed with the exception of modifications 
    for clarity, consolidation and reordering of paragraphs, clarifying the 
    concept of upward trend by adding the requirement for making 
    ``significant progress'' toward fulfilling the standards and toward 
    conforming with the guidelines, removal from the fallbacks the 
    redundant reference to ESA requirements and State water quality 
    standards, and to incorporate more fully a watershed management 
    approach and current science consistent with rangeland health goals.
    
    VI. Procedural Matters
    
    NEPA
    
        The BLM analyzed the impacts of these final rules in its 
    ``Rangeland Reform '94: Final Environmental Impact Statement,'' in 
    accordance with section 102(2)(C) of the NEPA of 1969 (42 U.S.C. 
    4332(c)(C)).
        A Record of Decision for the EIS for Rangeland Reform '94 was 
    issued on February 13, 1995. The Department's decision is represented 
    in the rule adopted today. The ROD departs from the preferred 
    alternative in the FEIS in that it retains the existing grazing fee 
    formula, identified as the PRIA (No Action) alternative, and makes 
    minor modifications to the Preferred Management alternative. Changes 
    made from the Preferred Management alternative of the FEIS, and 
    adoption of the No Action Fee alternative, which are represented in the 
    Record of Decision and this final rule, were found to be within the 
    range of alternatives considered in the FEIS. Also, these changes were 
    found not to affect the analysis of environmental consequences 
    presented in the FEIS.
    
    Executive Order 12778: Civil Justice Reform Certification
    
        This rule has been reviewed under the applicable standards of 
    Executive Order 12778, Civil Justice Reform (56 FR 55195). The 
    requirements of the Executive Order are covered by the preamble 
    discussion of this rule. The Department certifies that this rule meets 
    the applicable standards provided in Section 2(a) and 2(b)(2) of that 
    Order. Where applicable, the recommendations and analyses required 
    under Section 2(d) of that Order are attached to the certification and 
    included in the administrative record of this rule.
    
    Regulatory Flexibility Act
    
        The Department has determined that this final rule will not have a 
    significant economic impact on a substantial number of small entities 
    under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). A final 
    regulatory flexibility analysis has been prepared and may be requested 
    from the following address: Bureau of Land Management, U.S. Department 
    of the Interior, Room 5555, Main Interior Building, 1849 C Street NW, 
    Washington, DC 20240. The final rule will not change costs to industry 
    or to the Federal, State, or local governments. Furthermore, the rule 
    produces no adverse effects on competition, employment, investment, 
    productivity, innovation, or the ability of United States enterprises 
    to compete with foreign-based enterprises in domestic or export 
    markets.
    
    Executive Order 12866
    
        This final rule has been reviewed under Executive Order 12866.
    
    Executive Order 12630
    
        This rule has been reviewed under Executive Order 12630, the 
    Attorney General Guidelines, Department Guidelines, and the Attorney 
    General Supplemental Guidelines to determine the takings implications 
    of the proposed rule if it were promulgated as currently drafted. 
    Because the relevant statutes and rules governing grazing on Federal 
    land and case law interpreting said statutes and rules have 
    consistently recognized grazing on Federal land as a revocable license 
    and not a property interest, it has been determined that this final 
    rule does not present a risk of a taking.
    
    Paperwork Reduction Act
    
        The collections of information contained in this rule have been 
    approved by OMB under 44 U.S.C. 3501, et seq. and assigned clearance 
    numbers: 1004-0005, 1004-0019, 1004-0020, 1004-0041, 1004-0047, 1004-
    0051, and 1004-0068.
        Public reporting burden for the information collections are as 
    follows: Clearance number 1004-0005 is estimated to average 0.33 hours 
    per response, clearance number 1004-0019 is estimated to average 0.33 
    hours per response, clearance number 1004-0020 is estimated to average 
    0.33 hours per response, clearance number 1004-0041 is estimated to 
    average 0.25 hours per response, clearance number 1004-0047 is 
    estimated to average 0.25 hours per response, clearance number 1004-
    0051 is estimated to average 0.3 hours per response, and clearance 
    number 1004-0068 is estimated to average 0.17 hours per response, 
    including the time for reviewing instructions, searching existing data 
    sources, gathering and maintaining the data needed, and completing and 
    reviewing the collection of information. Send comments regarding this 
    burden estimate or any other aspect of these collections of 
    information, including suggestions for reducing the burden to the 
    Information Collection Clearance Officer (873), Bureau of Land 
    Management, Washington, DC 20240, and the Office of Management and 
    Budget, Paperwork Reduction Project, 1004-0005, -0019, -0020, -0041, -
    0047, -0051, or -0068, Washington, DC 20503.
    
    Author
    
        The principal authors of this final rule are Annetta L. Cheek and 
    Charles Hunt, Regulatory Management Team, with the assistance of many 
    other staff members of the Bureau of Land Management, U.S. Department 
    of the Interior, 1849 C St. NW., Washington, DC 20240.
    
    List of Subjects
    
    43 CFR Part 4
    
        Administrative practice and procedure, Civil rights, Claims, Equal 
    access to justice, Government contracts, Grazing lands, Indians, 
    Interior Department, Lawyers, Mines, Penalties, Public lands, Surface 
    mining.
    
    43 CFR Part 1780
    
        Administrative practice and procedure, Advisory committees, Land 
    Management Bureau, Public lands.
    
    43 CFR Part 4100
    
        Administrative practice and procedure, Grazing lands, Livestock, 
    Penalties, Range management, Reporting and record keeping requirements.
        For the reasons stated in the preamble and under the authority of 
    the FACA (5 U.S.C. Appendix), section 2 of the Reorganization Plan No. 
    3 of 1950 (5 U.S.C. Appendix, as amended; 64 Stat. 1262), the TGA of 
    1934 (43 U.S.C. 315, 315a-r), the Oregon and California Railroad and 
    Coos Bay Wagon Road Grant Lands Act of 1937 (43 U.S.C. 1181d), and the 
    FLPMA of 1976 (43 U.S.C. 1739, 1740), part 4 of subtitle A of title 43, 
    and part 1780, group 1700, subchapter A, and part 4100, group 4100, 
    subchapter D, of subtitle B of chapter II of title 43 of the Code of 
    Federal Regulations are amended as set forth below: [[Page 9958]] 
    
    PART 4--DEPARTMENT HEARINGS AND APPEALS PROCEDURES
    
        1. The authority for part 4 continues to read as follows:
    
        Authority: R.S. 2478, as amended, 43 U.S.C. sec. 1201, unless 
    otherwise noted.
    
    Subpart E--Special Rules Applicable to Public Land Hearings and 
    Appeals
    
        2. The authority citation for subpart E of part 4 continues to read 
    as follows:
    
        Authority: Sections 4.470 to 4.478 also issued under authority 
    of sec. 2, 48 Stat. 1270; 43 U.S.C. 315a.
    
        3. Section 4.477 is amended by removing paragraph (a); removing the 
    paragraph designations (b) (1), (2), and (3); and revising the first 
    sentence of the paragraph to read as follows:
    
    
    Sec. 4.477  Effect of decision suspended during appeal.
    
        Notwithstanding the provisions of Sec. 4.21(a) of this part 
    pertaining to the period during which a final decision will not be in 
    effect, and consistent with the provisions of Sec. 4160.3 of this 
    title, the authorized officer may provide in his decision that it shall 
    be in full force and effect pending decision on an appeal therefrom. * 
    * *
    
    PART 1780--COOPERATIVE RELATIONS
    
        4. The authority citation for part 1780 is revised to read as 
    follows:
    
        Authority: 5 U.S.C. App. (Federal Advisory Committee Act); 43 
    U.S.C. 1739.
    
    Subpart 1784--Advisory Committees
    
    
    Sec. 1784.0-5  [Amended]
    
        5. Section 1784.0-5 is amended by removing from paragraph (d) the 
    term ``Authorized representative'' and adding in its place the words 
    ``Designated Federal officer''.
        6. Section 1784.2-1 is amended by removing paragraph (b), 
    redesignating paragraph (c) as paragraph (b), and revising the newly 
    redesignated paragraph (b) to read as follows:
    
    
    Sec. 1784.2-1  Composition.
    
    * * * * *
        (b) Individuals shall qualify to serve on an advisory committee 
    because their education, training, or experience enables them to give 
    informed and objective advice regarding an industry, discipline, or 
    interest specified in the committee's charter; they have demonstrated 
    experience or knowledge of the geographical area under the purview of 
    the advisory committee; and they have demonstrated a commitment to 
    collaborate in seeking solutions to resource management issues.
        7. Section 1784.2-2 is amended by revising paragraphs (a)(1), and 
    (b), and by adding a new paragraph (c) to read as follows:
    
    
    Sec. 1784.2-2  Avoidance of conflict of interest.
    
        (a) * * *
        (1) Holders of grazing permits and leases may serve on advisory 
    committees, including resource advisory councils, and may serve on 
    subgroups of such advisory councils;
    * * * * *
        (b) No advisory committee members, including members of resource 
    advisory councils, and no members of subgroups of such advisory 
    committees, shall participate in any matter in which the members have a 
    direct interest.
        (c) Members of advisory committees shall be required to disclose 
    their direct or indirect interest in leases, licenses, permits, 
    contracts, or claims and related litigation which involve lands or 
    resources administered by the Bureau of Land Management. For the 
    purposes of this paragraph, indirect interest includes holdings of a 
    spouse or a dependent child.
        8. Section 1784.3 is amended by removing paragraphs (a), (b)(3), 
    (b)(4), (b)(5), (c), (d) and (g); redesignating paragraphs (b)(1) and 
    (b)(2) as paragraphs (a)(1) and (a)(2), respectively; adding 
    introductory text before newly redesignated paragraph (a)(1); removing 
    from newly redesignated paragraph (a)(1) the word ``district'' and 
    adding in its place the words ``geographical area''; removing paragraph 
    (b) and redesignating paragraphs (e) and (f) as paragraphs (b) and (c), 
    respectively; removing the words ``his authorized representative'' from 
    newly redesignated paragraph (c) and adding in its place the words 
    ``the designated Federal officer''; and adding a new paragraph (d) to 
    read as follows:
    
    
    Sec. 1784.3  Member service.
    
        (a) Appointments to advisory committees shall be for 2-year terms 
    unless otherwise specified in the charter or the appointing document. 
    Terms of service normally coincide with duration of the committee 
    charter. Members may be appointed to additional terms at the discretion 
    of the authorized appointing official.
    * * * * *
        (d) For purposes of compensation, members of advisory committees 
    shall be reimbursed for travel and per diem expenses when on advisory 
    committee business, as authorized by 5 U.S.C. 5703. No reimbursement 
    shall be made for expenses incurred by members of subgroups selected by 
    established committees, except that the designated Federal officer may 
    reimburse travel and per diem expenses to members of subgroups who are 
    also members of the parent committee.
    
    
    Sec. 1784.5-1 and 1784.5-2  [Amended]
    
        9. Sections 1784.5-1 and 1784.5-2 are amended by removing the 
    phrase ``his authorized representative'' and adding in its place the 
    phrase ``the designated Federal officer.''
        10. Section 1784.6 is revised to read as follows:
    
    
    Sec. 1784.6  Membership and functions of resource advisory councils and 
    sub-groups .
    
        11. Section 1784.6-1 is revised to read as follows:
    
    
    Sec. 1784.6-1  Resource advisory councils--requirements.
    
        (a) Resource advisory councils shall be established to cover all 
    lands administered by the Bureau of Land Management, except where--
        (1) There is insufficient interest in participation to ensure that 
    membership can be fairly balanced in terms of the points of view 
    represented and the functions to be performed; or
        (2) The location of the public lands with respect to the population 
    of users and other interested parties precludes effective 
    participation.
        (b) A resource advisory council advises the Bureau of Land 
    Management official to whom it reports regarding the preparation, 
    amendment and implementation of land use plans for public lands and 
    resources within its area. Except for the purposes of long-range 
    planning and the establishment of resource management priorities, a 
    resource advisory council shall not provide advice on the allocation 
    and expenditure of funds. A resource advisory council shall not provide 
    advice regarding personnel actions.
        (c) The Secretary shall appoint the members of each resource 
    advisory council. The Secretary shall appoint at least 1 elected 
    official of general purpose government serving the people of the area 
    to each council. An individual may not serve concurrently on more than 
    1 resource advisory council. Council members and members of a rangeland 
    resource team or other local general purpose subgroup must reside in 1 
    of the States within the geographic jurisdiction of the council or 
    subgroup, respectively. Council members and members of general purpose 
    subgroups shall be representative of the interests of the following 3 
    general groups:
        (1) Persons who-- [[Page 9959]] 
        (i) Hold Federal grazing permits or leases within the area for 
    which the council is organized;
        (ii) Represent interests associated with transportation or rights-
    of-way;
        (iii) Represent developed outdoor recreation, off-highway vehicle 
    users, or commercial recreation activities;
        (iv) Represent the commercial timber industry; or
        (v) Represent energy and mineral development.
        (2) Persons representing--
        (i) Nationally or regionally recognized environmental 
    organizations;
        (ii) Dispersed recreational activities;
        (iii) Archeological and historical interests; or
        (iv) Nationally or regionally recognized wild horse and burro 
    interest groups.
        (3) Persons who--
        (i) Hold State, county or local elected office;
        (ii) Are employed by a State agency responsible for management of 
    natural resources, land, or water;
        (iii) Represent Indian tribes within or adjacent to the area for 
    which the council is organized;
        (iv) Are employed as academicians in natural resource management or 
    the natural sciences; or
        (v) Represent the affected public-at-large.
        (d) In appointing members of a resource advisory council from the 3 
    categories set forth in paragraphs (c)(1), (c)(2), and (c)(3) of this 
    section, the Secretary shall provide for balanced and broad 
    representation from within each category.
        (e) In making appointments to resource advisory councils the 
    Secretary shall consider nominations made by the Governor of the State 
    or States affected and nominations received in response to public calls 
    for nominations pursuant to Sec. 1784.4-1. Persons interested in 
    serving on resource advisory councils may nominate themselves. All 
    nominations shall be accompanied by letters of reference from interests 
    or organizations to be represented.
        (f) Persons appointed to resource advisory councils shall attend a 
    course of instruction in the management of rangeland ecosystems that 
    has been approved by the Bureau of Land Management State Director.
        (g) A resource advisory council shall meet at the call of the 
    designated Federal officer and elect its own officers. The designated 
    Federal officer shall attend all meetings of the council.
        (h) Council charters must include rules defining a quorum and 
    establishing procedures for sending recommendations forward to BLM. A 
    quorum of council members must be present to constitute an official 
    meeting of the council. Formal recommendations shall require agreement 
    of at least a majority of each of the 3 categories of interest from 
    which appointments are made.
        (i) Where the resource advisory council becomes concerned that its 
    advice is being arbitrarily disregarded, the council may request that 
    the Secretary respond directly to such concerns within 60 days of 
    receipt. Such a request can be made only upon the agreement of all 
    council members. The Secretary's response shall not constitute a 
    decision on the merits of any issue that is or might become the subject 
    of an administrative appeal, and shall not be appealable.
        (j) Administrative support for a resource advisory council shall be 
    provided by the office of the designated Federal officer.
        12. A new Sec. 1784.6-2 is added to read as follows:
    
    
    Sec. 1784.6-2  Resource advisory councils--optional features.
    
        (a) Resource advisory councils must be established consistent with 
    any 1 of the 3 models in paragraphs (a)(1), (a)(2), and (a)(3) of this 
    section. The model type and boundaries for resource advisory councils 
    shall be established by the BLM State Director(s) in consultation with 
    the Governors of the affected States and other interested parties.
    
    (1) Model A
    
        (i) Council jurisdiction. The geographic jurisdiction of a council 
    shall coincide with BLM District or ecoregion boundaries. The Governor 
    of the affected States or existing resource advisory councils may 
    petition the Secretary to establish a resource advisory council for a 
    specified Bureau of Land Management resource area. The councils will 
    provide advice to the Bureau of Land Management official to whom they 
    report regarding the preparation, amendment and implementation of land 
    use plans. The councils will also assist in establishing other long-
    range plans and resource management priorities in an advisory capacity, 
    including providing advice on the development of plans for range 
    improvement or development programs.
        (ii) Membership. Each council shall have 15 members, distributed 
    equally among the 3 interest groups specified in Sec. 1784.6-1(c).
        (iii) Quorum and voting requirements. At least 3 council members 
    from each of the 3 categories of interest from which appointments are 
    made pursuant to Sec. 1784.6-1(c) must be present to constitute an 
    official meeting of the council. Formal recommendations shall require 
    agreement of at least 3 council members from each of the 3 categories 
    of interest from which appointments are made.
        (iv) Subgroups. Local rangeland resource teams may be formed within 
    the geographical area for which a resource advisory council provides 
    advice, down to the level of a single allotment. These teams may be 
    formed by a resource advisory council on its own motion or in response 
    to a petition by local citizens. Rangeland resource teams will be 
    formed for the purpose of providing local level input to the resource 
    advisory council regarding issues pertaining to the administration of 
    grazing on public land within the area for which the rangeland resource 
    team is formed.
        (A) Rangeland resource teams will consist of 5 members selected by 
    the resource advisory council. Membership will include 2 persons 
    holding Federal grazing permits or leases. Additional members will 
    include 1 person representing the public-at-large, 1 person 
    representing a nationally or regionally recognized environmental 
    organization, and 1 person representing national, regional, or local 
    wildlife or recreation interests. Persons selected by the council to 
    represent the public-at-large, environmental, and wildlife or 
    recreation interests may not hold Federal grazing permits or leases. At 
    least 1 member must be selected from the membership of the resource 
    advisory council.
        (B) The resource advisory council will be required to select 
    rangeland resource team members from nominees who qualify by virtue of 
    their knowledge or experience of the lands, resources, and communities 
    that fall within the area for which the team is formed. All nominations 
    must be accompanied by letters of recommendation from the groups or 
    interests to be represented.
        (C) All members of rangeland resource teams will attend a course of 
    instruction in the management of rangeland ecosystems that has been 
    approved by the BLM State Director. Rangeland resource teams will have 
    opportunities to raise any matter of concern with the resource advisory 
    council and to request that BLM form a technical review team, as 
    described below, to provide information and options to the council for 
    their consideration.
        (D) Technical review teams can be formed by the BLM authorized 
    officer on the motion of BLM or in response to a request by the 
    resource advisory council or a rangeland resource team. 
    [[Page 9960]] The purpose of such teams is to gather and analyze data 
    and develop recommendations to aid the decisionmaking process, and 
    functions will be limited to tasks assigned by the authorized officer. 
    Membership will be limited to Federal employees and paid consultants. 
    Members will be selected based upon their knowledge of resource 
    management or their familiarity with the specific issues for which the 
    technical review team has been formed. Technical review teams will 
    terminate upon completion of the assigned task.
    
    (2) Model B
    
        (i) Council jurisdiction. The jurisdiction of the council shall be 
    Statewide, or on an ecoregion basis. The purpose of the council is to 
    promote federal, state, and local cooperation in the management of 
    natural resources on public lands, and to coordinate the development of 
    sound resource management plans and activities with other states. It 
    will provide an opportunity for meaningful public participation in land 
    management decisions at the state level and will foster conflict 
    resolution through open dialogue and collaboration.
        (ii) Membership. The council shall have 15 members, distributed 
    equally among the 3 interest groups specified in Sec. 1784.6-1(c), and 
    will include at least one representative from wildlife interest groups, 
    grazing interests, minerals and energy interests, and established 
    environmental/conservation interests. The Governor shall chair the 
    council.
        (iii) Quorum and voting requirements. The charter of the council 
    shall specify that 80% or 12 members must be present to constitute a 
    quorum and conduct official business, and that 80% or 12 members of the 
    council must vote affirmatively to refer an issue to BLM Federal 
    officer.
        (iv) Subgroups. Local rangeland resource teams may be formed by the 
    Statewide council, down to the level of a 4th order watershed. 
    Rangeland resource teams will be formed for the purpose of providing 
    local level input to the resource advisory council. They will meet at 
    least quarterly and will promote a decentralized administrative 
    approach, encourage good stewardship, emphasize coordination and 
    cooperation among agencies, permittees and the interested public, 
    develop proposed solutions and management plans for local resources on 
    public lands, promote renewable rangeland resource values, develop 
    proposed standards to address sustainable resource uses and rangeland 
    health, address renewable rangeland resource values, propose and 
    participate in the development of area-specific National Environmental 
    Policy Act documents, and develop range and wildlife education and 
    training programs. As with the resource advisory council, an 80% 
    affirmative vote will be required to send a recommendation to the 
    resource advisory council.
        (A) Rangeland resource teams will not exceed 10 members and will 
    include at least 2 persons from environmental or wildlife groups, 2 
    grazing permittees, 1 elected official, 1 game and fish district 
    representative, 2 members of the public or other interest groups, and a 
    Federal officer from BLM. Members will be appointed for 2 year terms by 
    the resource advisory council and may be reappointed. No member may 
    serve on more than 1 rangeland resource team.
        (B) Technical review teams can be formed by the BLM authorized 
    officer on the motion of BLM or in response to a request by the 
    resource advisory council or a rangeland resource team. The purpose of 
    such teams is to gather and analyze data and develop recommendations to 
    aid the decisionmaking process, and functions will be limited to tasks 
    assigned by the authorized officer. Membership will be limited to 
    Federal employees and paid consultants. Members will be selected based 
    upon their knowledge of resource management or their familiarity with 
    the specific issues for which the technical review team has been 
    formed. Technical review teams will terminate upon completion of the 
    assigned task.
    
    (3) Model C
    
        (i) Council jurisdiction. The jurisdiction of the council shall be 
    on the basis of ecoregion, State, or BLM district boundaries.
        (ii) Membership. Membership of the council shall be 10 to 15 
    members, distributed in a balanced fashion among the 3 interest groups 
    defined in Sec. 1784.6-1(c).
        (iii) Quorum and voting requirements. The charter of each council 
    shall specify that a majority of each interest group must be present to 
    constitute a quorum and conduct official business, and that a majority 
    of each interest group must vote affirmatively to refer an issue to BLM 
    Federal officer.
        (iv) Subgroups. Resource advisory councils may form more local 
    teams to provide general local level input to the resource advisory 
    council on issues necessary to the successful functioning of the 
    council. Such subgroups can be formed in response to a petition from 
    local citizens or on the motion of the resource advisory council. 
    Membership in any subgroup formed for the purpose of providing general 
    input to the resource advisory council on grazing administration should 
    be constituted in accordance with provisions for membership in 
    Sec. 1784.6-1(c).
        (A) Technical review teams can be formed by the BLM authorized 
    officer on the motion of BLM or in response to a request by the 
    resource advisory council or a local team. The purpose of such 
    technical review teams is to gather and analyze data and develop 
    recommendations to aid the decisionmaking process, and functions will 
    be limited to tasks assigned by the authorized officer. Membership will 
    be limited to Federal employees and paid consultants. Members will be 
    selected based upon their knowledge of resource management or their 
    familiarity with the specific issues for which the technical review 
    team has been formed. Technical review teams will terminate upon 
    completion of the assigned task.
        (B) [Reserved]
    
    
    Sec. 1784.6-3 through 1784.6-5  [Removed]
    
        13. Sections 1784.6-3 through 1784.6-5 are removed.
    
    PART 4100--GRAZING ADMINISTRATION--EXCLUSIVE OF ALASKA
    
        14. The authority citation for part 4100 is revised to read as 
    follows:
    
        Authority: 43 U.S.C. 315, 315a-315r, 1181d, 1740.
    
        15. Section 4100.0-2 is revised to read as follows:
    
    
    Sec. 4100.0-2  Objectives.
    
        The objectives of these regulations are to promote healthy 
    sustainable rangeland ecosystems; to accelerate restoration and 
    improvement of public rangelands to properly functioning conditions; to 
    promote the orderly use, improvement and development of the public 
    lands; to establish efficient and effective administration of grazing 
    of public rangelands; and to provide for the sustainability of the 
    western livestock industry and communities that are dependent upon 
    productive, healthy public rangelands. These objectives shall be 
    realized in a manner that is consistent with land use plans, multiple 
    use, sustained yield, environmental values, economic and other 
    objectives stated in 43 CFR part 1720, subpart 1725; the Taylor Grazing 
    Act of June 28, 1934, as amended (43 U.S.C. 315, 315a-315r); section 
    102 of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 
    1740).
        16. Section 4100.0-5 is amended by removing the definition of 
    ``Affected interests,'' ``Grazing preference,'' and ``Subleasing''; 
    revising the definitions of [[Page 9961]] ``Active use,'' ``Actual 
    use,'' ``Allotment management plan (AMP),'' ``Consultation, cooperation 
    and coordination,'' ``Grazing lease,'' ``Grazing permit,'' ``Land use 
    plan,'' ``Range improvement,'' ``Suspension,'' and ``Utilization''; and 
    by adding in alphabetical order the definitions of ``Activity plan,'' 
    ``Affiliate,'' ``Annual rangelands,'' ``Conservation use,'' ``Ephemeral 
    rangelands,'' ``Grazing preference or preference,'' ``Interested 
    public,'' ``Permitted use,'' ``Temporary nonuse,'' and ``Unauthorized 
    leasing and subleasing'' to read as follows:
    
    
    Sec. 4100.0-5  Definitions.
    
    * * * * *
        Active use means the current authorized use, including livestock 
    grazing and conservation use. Active use may constitute a portion, or 
    all, of permitted use. Active use does not include temporary nonuse or 
    suspended use of forage within all or a portion of an allotment.
        Activity plan means a plan for managing a resource use or value to 
    achieve specific objectives. For example, an allotment management plan 
    is an activity plan for managing livestock grazing use to improve or 
    maintain rangeland conditions.
        Actual use means where, how many, what kind or class of livestock, 
    and how long livestock graze on an allotment, or on a portion or 
    pasture of an allotment.
    * * * * *
        Affiliate means an entity or person that controls, is controlled 
    by, or is under common control with, an applicant, permittee or lessee. 
    The term ``control'' means having any relationship which gives an 
    entity or person authority directly or indirectly to determine the 
    manner in which an applicant, permittee or lessee conducts grazing 
    operations.
    * * * * *
        Allotment management plan (AMP) means a documented program 
    developed as an activity plan, consistent with the definition at 43 
    U.S.C. 1702(k), that focuses on, and contains the necessary 
    instructions for, the management of livestock grazing on specified 
    public lands to meet resource condition, sustained yield, multiple use, 
    economic and other objectives.
        Annual rangelands means those designated areas in which livestock 
    forage production is primarily attributable to annual plants and varies 
    greatly from year to year.
    * * * * *
        Conservation use means an activity, excluding livestock grazing, on 
    all or a portion of an allotment for purposes of--
        (1) Protecting the land and its resources from destruction or 
    unnecessary injury;
        (2) Improving rangeland conditions; or
        (3) Enhancing resource values, uses, or functions.
        Consultation, cooperation, and coordination means interaction for 
    the purpose of obtaining advice, or exchanging opinions on issues, 
    plans, or management actions.
    * * * * *
        Ephemeral rangelands means areas of the Hot Desert Biome (Region) 
    that do not consistently produce enough forage to sustain a livestock 
    operation but may briefly produce unusual volumes of forage to 
    accommodate livestock grazing.
    * * * * *
        Grazing lease means a document authorizing use of the public lands 
    outside an established grazing district. Grazing leases specify all 
    authorized use including livestock grazing, suspended use, and 
    conservation use. Leases specify the total number of AUMs apportioned, 
    the area authorized for grazing use, or both.
        Grazing permit means a document authorizing use of the public lands 
    within an established grazing district. Grazing permits specify all 
    authorized use including livestock grazing, suspended use, and 
    conservation use. Permits specify the total number of AUMs apportioned, 
    the area authorized for grazing use, or both.
        Grazing preference or preference means a superior or priority 
    position against others for the purpose of receiving a grazing permit 
    or lease. This priority is attached to base property owned or 
    controlled by the permittee or lessee.
        Interested public means an individual, group or organization that 
    has submitted a written request to the authorized officer to be 
    provided an opportunity to be involved in the decisionmaking process 
    for the management of livestock grazing on specific grazing allotments 
    or has submitted written comments to the authorized officer regarding 
    the management of livestock grazing on a specific allotment.
        Land use plan means a resource management plan, developed under the 
    provisions of 43 CFR part 1600, or a management framework plan. These 
    plans are developed through public participation in accordance with the 
    provisions of the Federal Land Policy and Management Act of 1976 (43 
    U.S.C 1701 et seq.) and establish management direction for resource 
    uses of public lands.
    * * * * *
        Permitted use means the forage allocated by, or under the guidance 
    of, an applicable land use plan for livestock grazing in an allotment 
    under a permit or lease and is expressed in AUMs.
    * * * * *
        Range improvement means an authorized physical modification or 
    treatment which is designed to improve production of forage; change 
    vegetation composition; control patterns of use; provide water; 
    stabilize soil and water conditions; restore, protect and improve the 
    condition of rangeland ecosystems to benefit livestock, wild horses and 
    burros, and fish and wildlife. The term includes, but is not limited 
    to, structures, treatment projects, and use of mechanical devices or 
    modifications achieved through mechanical means.
    * * * * *
        Suspension means the temporary withholding from active use, through 
    a decision issued by the authorized officer or by agreement, of part or 
    all of the permitted use in a grazing permit or lease.
        Temporary nonuse means the authorized withholding, on an annual 
    basis, of all or a portion of permitted livestock use in response to a 
    request of the permittee or lessee.
    * * * * *
        Unauthorized leasing and subleasing means--
        (1) The lease or sublease of a Federal grazing permit or lease, 
    associated with the lease or sublease of base property, to another 
    party without a required transfer approved by the authorized officer;
        (2) The lease or sublease of a Federal grazing permit or lease to 
    another party without the assignment of the associated base property;
        (3) Allowing another party, other than sons and daughters of the 
    grazing permittee or lessee meeting the requirements of Sec. 4130.7(f), 
    to graze on public lands livestock that are not owned or controlled by 
    the permittee or lessee; or
        (4) Allowing another party, other than sons and daughters of the 
    grazing permittee or lessee meeting the requirements of Sec. 4130.7(f), 
    to graze livestock on public lands under a pasturing agreement without 
    the approval of the authorized officer.
        Utilization means the portion of forage that has been consumed by 
    livestock, wild horses and burros, wildlife and insects during a 
    specified period. The term is also used to refer to the pattern of such 
    use. [[Page 9962]] 
        17. Section 4100.0-7 is revised to read as follows:
    
    
    Sec. 4100.0-7  Cross reference.
    
        The regulations at part 1600 of this chapter govern the development 
    of land use plans; the regulations at part 1780, subpart 1784 of this 
    chapter govern advisory committees; and the regulations at subparts B 
    and E of part 4 of this title govern appeals and hearings.
        18. A new Sec. 4100.0-9 is added to read as follows:
    
    
    Sec. 4100.0-9  Information collection.
    
        (a) The information collection requirements contained in Group 4100 
    have been approved by the Office of Management and Budget under 44 
    U.S.C. 3501 et seq. and assigned clearance numbers 1004-0005, 1004-
    0019, 1004-0020, 1004-0041, 1004-0047, 1004-0051, and 1004-0068. The 
    information would be collected to permit the authorized officer to 
    determine whether an application to utilize public lands for grazing or 
    other purposes should be approved. Response is required to obtain a 
    benefit.
        (b) Public reporting burden for the information collections are as 
    follows: Clearance number 1004-0005 is estimated to average 0.33 hours 
    per response, clearance number 1004-0019 is estimated to average 0.33 
    hours per response, clearance number 1004-0020 is estimated to average 
    0.33 hours per response, clearance number 1004-0041 is estimated to 
    average 0.25 hours per response, clearance number 1004-0047 is 
    estimated to average 0.25 hours per response, clearance number 1004-
    0051 is estimated to average 0.3 hours per response, and clearance 
    number 1004-0068 is estimated to average 0.17 hours per response, 
    including the time for reviewing instructions, searching existing data 
    sources, gathering and maintaining the data needed, and completing and 
    reviewing the collection of information. Send comments regarding this 
    burden estimate or any other aspect of these collections of 
    information, including suggestions for reducing the burden to the 
    Information Collection Clearance Officer (873), Bureau of Land 
    Management, Washington, DC 20240, and the Office of Management and 
    Budget, Paperwork Reduction Project, 1004-0005, -0019, -0020, -0041, -
    0047, -0051, or -0068, Washington, DC 20503.
    
    Subpart 4110--Qualifications and Preference
    
        19. Section 4110.1 is amended by redesignating the introductory 
    text of the section, and paragraphs (a), (b), and (c) as the 
    introductory text of paragraph (a), (a)(1), (a)(2), and (a)(3), 
    respectively, revising the introductory text of newly redesignated 
    paragraph (a), and adding new paragraphs (b), (c), and (d) to read as 
    follows:
    
    
    Sec. 4110.1  Mandatory qualifications.
    
        (a) Except as provided under Secs. 4110.1-1, 4130.5, and 4130.6-3, 
    to qualify for grazing use on the public lands an applicant must own or 
    control land or water base property, and must be:
    * * * * *
        (b) Applicants for the renewal or issuance of new permits and 
    leases and any affiliates must be determined by the authorized officer 
    to have a satisfactory record of performance.
        (1) Renewal of permit or lease. (i) The applicant for renewal of a 
    grazing permit or lease, and any affiliate, shall be deemed to have a 
    satisfactory record of performance if the authorized officer determines 
    the applicant and affiliates to be in substantial compliance with the 
    terms and conditions of the existing Federal grazing permit or lease 
    for which renewal is sought, and with the rules and regulations 
    applicable to the permit or lease.
        (ii) The authorized officer may take into consideration 
    circumstances beyond the control of the applicant or affiliate in 
    determining whether the applicant and affiliates are in substantial 
    compliance with permit or lease terms and conditions and applicable 
    rules and regulations.
        (2) New permit or lease. Applicants for new permits or leases, and 
    any affiliates, shall be deemed not to have a record of satisfactory 
    performance when--
        (i) The applicant or affiliate has had any Federal grazing permit 
    or lease cancelled for violation of the permit or lease within the 36 
    calendar months immediately preceding the date of application; or
        (ii) The applicant or affiliate has had any State grazing permit or 
    lease, for lands within the grazing allotment for which a Federal 
    permit or lease is sought, cancelled for violation of the permit or 
    lease within the 36 calendar months immediately preceding the date of 
    application; or
        (iii) The applicant or affiliate is barred from holding a Federal 
    grazing permit or lease by order of a court of competent jurisdiction.
        (c) In determining whether affiliation exists, the authorized 
    officer shall consider all appropriate factors, including, but not 
    limited to, common ownership, common management, identity of interests 
    among family members, and contractual relationships.
        (d) Applicants shall submit an application and any other relevant 
    information requested by the authorized officer in order to determine 
    that all qualifications have been met.
        20. Section 4110.1-1 is revised to read as follows:
    
    
    Sec. 4110.1-1  Acquired lands.
    
        Where lands have been acquired by the Bureau of Land Management 
    through purchase, exchange, Act of Congress or Executive Order, and an 
    agreement or the terms of the act or Executive Order provide that the 
    Bureau of Land Management shall honor existing grazing permits or 
    leases, such permits or leases are governed by the terms and conditions 
    in effect at the time of acquisition by the Bureau of Land Management, 
    and are not subject to the requirements of Sec. 4110.1.
        21. Section 4110.2-1 is amended by revising paragraphs (a)(1), 
    (a)(2) and (c) to read as follows:
    
    
    Sec. 4110.2-1  Base Property.
    
        (a) * * *
        (1) It is capable of serving as a base of operation for livestock 
    use of public lands within a grazing district; or
        (2) It is contiguous land, or, when no applicant owns or controls 
    contiguous land, noncontiguous land that is capable of being used in 
    conjunction with a livestock operation which would utilize public lands 
    outside a grazing district.
    * * * * *
        (c) An applicant shall provide a legal description, or plat, of the 
    base property and shall certify to the authorized officer that this 
    base property meets the requirements under paragraphs (a) and (b) of 
    this section. A permittee's or lessee's interest in water previously 
    recognized as base property on public land shall be deemed sufficient 
    in meeting the requirement that the applicant control base property. 
    Where such waters become unusable and are replaced by newly constructed 
    or reconstructed water developments that are the subject of a range 
    improvement permit or cooperative range improvement agreement, the 
    permittee's or lessee's interest in the replacement water shall be 
    deemed sufficient in meeting the requirement that the applicant control 
    base property.
    * * * * *
        22. Section 4110.2-2 is amended by removing the term ``grazing 
    preference'' from paragraph (c) and adding in its place the term 
    ``permitted use'' and by revising the section heading and paragraph (a) 
    to read as follows: [[Page 9963]] 
    
    
    Sec. 4110.2-2  Specifying permitted use.
    
        (a) Permitted use is granted to holders of grazing preference and 
    shall be specified in all grazing permits and leases. Permitted use 
    shall encompass all authorized use including livestock use, any 
    suspended use, and conservation use, except for permits and leases for 
    designated ephemeral rangelands where livestock use is authorized based 
    upon forage availability, or designated annual rangelands. Permitted 
    livestock use shall be based upon the amount of forage available for 
    livestock grazing as established in the land use plan, activity plan, 
    or decision of the authorized officer under Sec. 4110.3-3, except, in 
    the case of designated ephemeral or annual rangelands, a land use plan 
    or activity plan may alternatively prescribe vegetation standards to be 
    met in the use of such rangelands.
    * * * * *
        23. Section 4110.2-3 is amended by redesignating paragraph (f) as 
    paragraph (g), removing from paragraph (b) the term ``grazing 
    preference'' and adding in its place the term ``permitted use,'' 
    revising paragraph (a)(1), and adding a new paragraph (f) to read as 
    follows:
    
    
    Sec. 4110.2-3  Transfer of grazing preference.
    
        (a) * * *
        (1) The transferee shall meet all qualifications and requirements 
    of Secs. 4110.1, 4110.2-1, and 4110.2-2.
    * * * * *
        (f) Transfers shall be for a period of not less than 3 years unless 
    a shorter term is determined by the authorized officer to be consistent 
    with management and resource condition objectives.
    * * * * *
        24. Section 4110.2-4 is revised to read as follows:
    
    
    Sec. 4110.2-4  Allotments.
    
        After consultation, cooperation, and coordination with the affected 
    grazing permittees or lessees, the State having lands or responsible 
    for managing resources within the area, and the interested public, the 
    authorized officer may designate and adjust grazing allotment 
    boundaries. The authorized officer may combine or divide allotments, 
    through an agreement or by decision, when necessary for the proper and 
    efficient management of public rangelands.
        25. Section 4110.3 is revised to read as follows:
    
    
    Sec. 4110.3  Changes in permitted use.
    
        The authorized officer shall periodically review the permitted use 
    specified in a grazing permit or lease and shall make changes in the 
    permitted use as needed to manage, maintain or improve rangeland 
    productivity, to assist in restoring ecosystems to properly functioning 
    condition, to conform with land use plans or activity plans, or to 
    comply with the provisions of subpart 4180 of this part. These changes 
    must be supported by monitoring, field observations, ecological site 
    inventory or other data acceptable to the authorized officer.
        26. Section 4110.3-1 is amended by removing the words ``grazing 
    preferences'' from paragraph (b) and adding in their place the words 
    ``suspended permitted use''; removing from paragraph (c)(2) the term 
    ``grazing preference'' and adding in its place the term ``permitted 
    use'' and removing the words ``and/or'' and adding in their place the 
    word ``and''; revising the section heading, paragraph (a), the 
    introductory text of paragraph (c), and paragraph (c)(1), to read as 
    follows:
    
    
    Sec. 4110.3-1  Increasing permitted use.
    
    * * * * *
        (a) Additional forage temporarily available for livestock grazing 
    use may be apportioned on a nonrenewable basis.
    * * * * *
        (c) After consultation, cooperation, and coordination with the 
    affected permittees or lessees, the State having lands or managing 
    resources within the area, and the interested public, additional forage 
    on a sustained yield basis available for livestock grazing use in an 
    allotment may be apportioned to permittees or lessees or other 
    applicants, provided the permittee, lessee, or other applicant is found 
    to be qualified under subpart 4110 of this part. Additional forage 
    shall be apportioned in the following priority:
        (1) Permittees or lessees in proportion to their contribution or 
    stewardship efforts which result in increased forage production;
    * * * * *
        27. Section 4110.3-2 is amended by revising the section heading, 
    removing from paragraph (a) the term ``Active'' and adding in its place 
    the term ``Permitted,'' removing paragraph (c) and revising paragraph 
    (b) to read as follows:
    
    
    Sec. 4110.3-2  Decreasing permitted use.
    
    * * * * *
        (b) When monitoring or field observations show grazing use or 
    patterns of use are not consistent with the provisions of subpart 4180, 
    or grazing use is otherwise causing an unacceptable level or pattern of 
    utilization, or when use exceeds the livestock carrying capacity as 
    determined through monitoring, ecological site inventory or other 
    acceptable methods, the authorized officer shall reduce permitted 
    grazing use or otherwise modify management practices.
        28. Section 4110.3-3 is revised to read as follows:
    
    
    Sec. 4110.3-3  Implementing reductions in permitted use.
    
        (a) After consultation, cooperation, and coordination with the 
    affected permittee or lessee, the State having lands or managing 
    resources within the area, and the interested public, reductions of 
    permitted use shall be implemented through a documented agreement or by 
    decision of the authorized officer. Decisions implementing Sec. 4110.3-
    2 shall be issued as proposed decisions pursuant to Sec. 4160.1, except 
    as provided in paragraph (b) of this section.
        (b) When the authorized officer determines that the soil, 
    vegetation, or other resources on the public lands require immediate 
    protection because of conditions such as drought, fire, flood, insect 
    infestation, or when continued grazing use poses an imminent likelihood 
    of significant resource damage, after consultation with, or a 
    reasonable attempt to consult with, affected permittees or lessees, the 
    interested public, and the State having lands or responsible for 
    managing resources within the area, the authorized officer shall close 
    allotments or portions of allotments to grazing by any kind of 
    livestock or modify authorized grazing use notwithstanding the 
    provisions of paragraph (a) of this section. Notices of closure and 
    decisions requiring modification of authorized grazing use may be 
    issued as final decisions effective upon issuance or on the date 
    specified in the decision. Such decisions shall remain in effect 
    pending the decision on appeal unless a stay is granted by the Office 
    of Hearings and Appeals in accordance with 43 CFR 4.21.
        29. Section 4110.4-2 is amended by revising paragraphs (a)(1) and 
    (a)(2) to read as follows:
    
    
    Sec. 4110.4-2  Decrease in land acreage.
    
        (a) * * *
        (1) Grazing permits or leases may be cancelled or modified as 
    appropriate to reflect the changed area of use.
        (2) Permitted use may be cancelled in whole or in part. 
    Cancellations determined by the authorized officer to be necessary to 
    protect the public lands will be apportioned by the authorized officer 
    based upon the level of available [[Page 9964]] forage and the 
    magnitude of the change in public land acreage available, or as agreed 
    to among the authorized users and the authorized officer.
    * * * * *
    
    Subpart 4120--Grazing Management
    
        30. Section 4120.2 is revised to read as follows:
    
    
    Sec. 4120.2  Allotment management plans and resource activity plans.
    
        Allotment management plans or other activity plans intended to 
    serve as the functional equivalent of allotment management plans may be 
    developed by permittees or lessees, other Federal or State resource 
    management agencies, interested citizens, and the Bureau of Land 
    Management. When such plans affecting the administration of grazing 
    allotments are developed, the following provisions apply:
        (a) An allotment management plan or other activity plans intended 
    to serve as the functional equivalent of allotment management plans 
    shall be prepared in careful and considered consultation, cooperation, 
    and coordination with affected permittees or lessees, landowners 
    involved, the resource advisory council, any State having lands or 
    responsible for managing resources within the area to be covered by 
    such a plan, and the interested public. The plan shall become effective 
    upon approval by the authorized officer. The plans shall--
        (1) Include terms and conditions under Secs. 4130.3, 4130.3-1, 
    4130.3-2 4130.3-3, and subpart 4180 of this part;
        (2) Prescribe the livestock grazing practices necessary to meet 
    specific resource objectives;
        (3) Specify the limits of flexibility, to be determined and granted 
    on the basis of the operator's demonstrated stewardship, within which 
    the permittee(s) or lessee(s) may adjust operations without prior 
    approval of the authorized officer; and
        (4) Provide for monitoring to evaluate the effectiveness of 
    management actions in achieving the specific resource objectives of the 
    plan.
        (b) Private and State lands may be included in allotment management 
    plans or other activity plans intended to serve as the functional 
    equivalent of allotment management plans dealing with rangeland 
    management with the consent or at the request of the parties who own or 
    control those lands.
        (c) The authorized officer shall provide opportunity for public 
    participation in the planning and environmental analysis of proposed 
    plans affecting the administration of grazing and shall give public 
    notice concerning the availability of environmental documents prepared 
    as a part of the development of such plans, prior to implementing the 
    plans. The decision document following the environmental analysis shall 
    be considered the proposed decision for the purposes of subpart 4160 of 
    this part.
        (d) A requirement to conform with completed allotment management 
    plans or other applicable activity plans intended to serve as the 
    functional equivalent of allotment management plans shall be 
    incorporated into the terms and conditions of the grazing permit or 
    lease for the allotment.
        (e) Allotment management plans or other applicable activity plans 
    intended to serve as the functional equivalent of allotment management 
    plans may be revised or terminated by the authorized officer after 
    consultation, cooperation, and coordination with the affected 
    permittees or lessees, landowners involved, the multiple resource 
    advisory council, any State having lands or responsible for managing 
    resources within the area to be covered by the plan, and the interested 
    public.
        31. Section 4120.3-1 is amended by adding the words ``range 
    improvement'' immediately before the word ``agreement'' in paragraphs 
    (b) and (e), and by adding a new paragraph (f) to read as follows:
    
    
    Sec. 4120.3-1   Conditions for range improvements.
    
    * * * * *
        (f) Proposed range improvement projects shall be reviewed in 
    accordance with the requirements of the National Environmental Policy 
    Act of 1969 (42 U.S.C. 4371 et seq.). The decision document following 
    the environmental analysis shall be considered the proposed decision 
    under subpart 4160 of this part.
        32. Section 4120.3-2 is revised to read as follows:
    
    
    Sec. 4120.3-2   Cooperative range improvement agreements.
    
        (a) BLM may enter into a cooperative range improvement agreement 
    with a person, organization, or other government entity for the 
    installation, use, maintenance, and/or modification of permanent range 
    improvements or rangeland developments to achieve management or 
    resource condition objectives. The cooperative range improvement 
    agreement shall specify how the costs or labor, or both, shall be 
    divided between the United States and cooperator(s).
        (b) Subject to valid existing rights, title to permanent range 
    improvements such as fences, wells, and pipelines where authorization 
    is granted after August 21, 1995 shall be in the name of the United 
    States. The authorization for all new permanent water developments such 
    as spring developments, wells, reservoirs, stock tanks, and pipelines 
    shall be through cooperative range improvement agreements. A 
    permittee's or lessee's interest in contributed funds, labor, and 
    materials will be documented by BLM to ensure proper credit for the 
    purposes of Secs. 4120.3-5 and 4120.3-6(c).
        (c) The United States shall have title to nonstructural range 
    improvements such as seeding, spraying, and chaining.
        (d) Range improvement work performed by a cooperator or permittee 
    on the public lands or lands administered by BLM does not confer the 
    exclusive right to use the improvement or the land affected by the 
    range improvement work.
        33. Section 4120.3-3 is amended by revising the first sentence of 
    paragraph (a), and paragraphs (b) and (c) to read as follows:
    
    
    Sec. 4120.3-3   Range improvement permits.
    
        (a) Any permittee or lessee may apply for a range improvement 
    permit to install, use, maintain, and/or modify removable range 
    improvements that are needed to achieve management objectives for the 
    allotment in which the permit or lease is held. * * *
        (b) The permittee or lessee may hold the title to authorized 
    removable range improvements used as livestock handling facilities such 
    as corrals, creep feeders, and loading chutes, and to temporary 
    structural improvements such as troughs for hauled water.
        (c) Where a permittee or lessee cannot make use of the forage 
    available for livestock and an application for temporary nonuse or 
    conservation use has been denied or the opportunity to make use of the 
    available forage is requested by the authorized officer, the permittee 
    or lessee shall cooperate with the temporary authorized use of forage 
    by another operator, when it is authorized by the authorized officer 
    following consultation with the preference permittee(s) or lessee(s).
        (1) A permittee or lessee shall be reasonably compensated for the 
    use and maintenance of improvements and facilities by the operator who 
    has an authorization for temporary grazing use.
        (2) The authorized officer may mediate disputes about reasonable 
    compensation and, following consultation with the interested parties, 
    make a determination concerning the [[Page 9965]] fair and reasonable 
    share of operation and maintenance expenses and compensation for use of 
    authorized improvements and facilities.
        (3) Where a settlement cannot be reached, the authorized officer 
    shall issue a temporary grazing authorization including appropriate 
    terms and conditions and the requirement to compensate the preference 
    permittee or lessee for the fair share of operation and maintenance as 
    determined by the authorized officer under subpart 4160 of this part.
        34. Section 4120.3-8 is added to read as follows:
    
    
    Sec. 4120.3-8   Range improvement fund.
    
        (a) In addition to range developments accomplished through other 
    resource management funds, authorized range improvements may be secured 
    through the use of the appropriated range improvement fund. One-half of 
    the available funds shall be expended in the State and district from 
    which they were derived. The remaining one-half of the fund shall be 
    allocated, on a priority basis, by the Secretary for on-the-ground 
    rehabilitation, protection and improvement of public rangeland 
    ecosystems.
        (b) Funds appropriated for range improvements are to be used for 
    investment in all forms of improvements that benefit rangeland 
    resources including riparian area rehabilitation, improvement and 
    protection, fish and wildlife habitat improvement or protection, soil 
    and water resource improvement, wild horse and burro habitat management 
    facilities, vegetation improvement and management, and livestock 
    grazing management. The funds may be used for activities associated 
    with on-the-ground improvements including the planning, design, layout, 
    contracting, modification, maintenance for which BLM is responsible, 
    and monitoring and evaluating the effectiveness of specific range 
    improvement projects.
        (c) During the planning of the range development or range 
    improvement programs, the authorized officer shall consult the resource 
    advisory council, affected permittees, lessees, and members of the 
    interested public.
        35. Section 4120.3-9 is added to read as follows:
    
    
    Sec. 4120.3-9   Water rights for the purpose of livestock grazing on 
    public lands.
    
        Any right acquired on or after August 21, 1995 to use water on 
    public land for the purpose of livestock watering on public land shall 
    be acquired, perfected, maintained and administered under the 
    substantive and procedural laws of the State within which such land is 
    located. To the extent allowed by the law of the State within which the 
    land is located, any such water right shall be acquired, perfected, 
    maintained, and administered in the name of the United States.
        36. Section 4120.5 is added to read as follows:
    
    
    Sec. 4120.5   Cooperation.
    
        37. Section 4120.5-1 is added to read as follows:
    
    
    Sec. 4120.5-1   Cooperation in management.
    
        The authorized officer shall, to the extent appropriate, cooperate 
    with Federal, State, Indian tribal and local governmental entities, 
    institutions, organizations, corporations, associations, and 
    individuals to achieve the objectives of this part.
        38. Section 4120.5-2 is added to read as follows:
    
    
    Sec. 4120.5-2   Cooperation with State, county, and Federal agencies.
    
        Insofar as the programs and responsibilities of other agencies and 
    units of government involve grazing upon the public lands and other 
    lands administered by the Bureau of Land Management, or the livestock 
    which graze thereon, the Bureau of Land Management will cooperate, to 
    the extent consistent with applicable laws of the United States, with 
    the involved agencies and government entities. The authorized officer 
    shall cooperate with State, county, and Federal agencies in the 
    administration of laws and regulations relating to livestock, livestock 
    diseases, sanitation, and noxious weeds including--
        (a) State cattle and sheep sanitary or brand boards in control of 
    stray and unbranded livestock, to the extent such cooperation does not 
    conflict with the Wild Free-Roaming Horse and Burro Act of 1971 (16 
    U.S.C. 1331 et seq.); and
        (b) County or other local weed control districts in analyzing 
    noxious weed problems and developing control programs for areas of the 
    public lands and other lands administered by the Bureau of Land 
    Management.
    
    Subpart 4130--Authorizing Grazing Use
    
        39. Sections 4130.1 through 4130.8 are redesignated as follows:
    
    ------------------------------------------------------------------------
                           Old section                          New section 
    ------------------------------------------------------------------------
    4130.1...................................................  4130.1-1     
    4130.1-1.................................................  4130.4       
    4130.3...................................................  4130.5       
    4130.4...................................................  4130.6       
    4130.4-1.................................................  4130.6-1     
    4130.4-2.................................................  4130.6-2     
    4130.4-3.................................................  4130.6-3     
    4130.4-4.................................................  4130.6-4     
    4130.5...................................................  4130.7       
    4130.6...................................................  4130.3       
    4130.6-1.................................................  4130.3-1     
    4130.6-2.................................................  4130.3-2     
    4130.6-3.................................................  4130.3-3     
    4130.7...................................................  4130.8       
    4130.7-1.................................................  4130.8-1     
    4130.7-2.................................................  4130.8-2     
    4130.7-3.................................................  4130.8-3     
    4130.8...................................................  4130.9       
    ------------------------------------------------------------------------
    
        40. Section 4130.1 is added to read as follows:
    
    
    Sec. 4130.1   Applications.
    
        41. Newly redesignated Sec. 4130.1-1 is amended by revising the 
    heading to read as follows:
    
    
    Sec. 4130.1-1   Filing applications.
    
        42. Section 4130.1-2 is amended by revising paragraph (b), removing 
    the word ``and'' from paragraph (e) and adding new paragraphs (g) and 
    (h) to read as follows:
    
    
    Sec. 4130.1-2   Conflicting applications.
    
    * * * * *
        (b) Proper use of rangeland resources;
    * * * * *
        (g) Demonstrated stewardship by the applicant to improve or 
    maintain and protect the rangeland ecosystem; and
        (h) The applicant's and affiliate's history of compliance with the 
    terms and conditions of grazing permits and leases of the Bureau of 
    Land Management and any other Federal or State agency, including any 
    record of suspensions or cancellations of grazing use for violations of 
    terms and conditions of agency grazing rules.
        43. Section 4130.2 is amended by redesignating paragraphs (b), (c), 
    (d) and (e) as paragraphs (c), (d), (e) and (i), respectively, revising 
    paragraphs (a) and newly redesignated paragraph (d) and by adding new 
    paragraphs (b), (f), (g), and (h) to read as follows:
    
    
    Sec. 4130.2   Grazing permits or leases.
    
        (a) Grazing permits or leases shall be issued to qualified 
    applicants to authorize use on the public lands and other lands under 
    the administration of the Bureau of Land Management that are designated 
    as available for livestock grazing through land use plans. Permits or 
    leases shall specify the types and levels of use authorized, including 
    livestock grazing, suspended use, and conservation use. These grazing 
    permits and leases shall also specify terms and conditions pursuant to 
    Secs. 4130.3, 4130.3-1, and 4130.3-2. [[Page 9966]] 
        (b) The authorized officer shall consult, cooperate and coordinate 
    with affected permittees or lessees, the State having lands or 
    responsible for managing resources within the area, and the interested 
    public prior to the issuance or renewal of grazing permits and leases.
    * * * * *
        (d) The term of grazing permits or leases authorizing livestock 
    grazing on the public lands and other lands under the administration of 
    the Bureau of Land Management shall be 10 years unless--
        (1) The land is being considered for disposal;
        (2) The land will be devoted to a public purpose which precludes 
    grazing prior to the end of 10 years;
        (3) The term of the base property lease is less than 10 years, in 
    which case the term of the Federal permit or lease shall coincide with 
    the term of the base property lease; or
        (4) The authorized officer determines that a permit or lease for 
    less than 10 years is in the best interest of sound land management.
    * * * * *
        (f) The authorized officer will not offer, grant or renew grazing 
    permits or leases when the applicants, including permittees or lessees 
    seeking renewal, refuse to accept the proposed terms and conditions of 
    a permit or lease.
        (g) Temporary nonuse and conservation use may be approved by the 
    authorized officer if such use is determined to be in conformance with 
    the applicable land use plans, AMP or other activity plans and the 
    provisions of subpart 4180 of this part.
        (1) Conservation use may be approved for periods of up to 10 years 
    when, in the determination of the authorized officer, the proposed 
    nonuse will promote rangeland resource protection or enhancement of 
    resource values or uses, including more rapid progress toward resource 
    condition objectives; or
        (2) Temporary nonuse for reasons including but not limited to 
    financial conditions or annual fluctuations of livestock, may be 
    approved on an annual basis for no more than 3 consecutive years. 
    Permittees or lessees applying for temporary nonuse shall state the 
    reasons supporting nonuse.
        (h) Application for nonrenewable grazing permits and leases under 
    Secs. 4110.3-1 and 4130.6-2 for areas for which conservation use has 
    been authorized will not be approved. Forage made available as a result 
    of temporary nonuse may be made available to qualified applicants under 
    Sec. 4130.6-2.
    * * * * *
        44. Newly redesignated Sec. 4130.3 is revised to read as follows:
    
    
    Sec. 4130.3   Terms and conditions.
    
        Livestock grazing permits and leases shall contain terms and 
    conditions determined by the authorized officer to be appropriate to 
    achieve management and resource condition objectives for the public 
    lands and other lands administered by the Bureau of Land Management, 
    and to ensure conformance with the provisions of subpart 4180 of this 
    part.
        45. Newly redesignated Sec. 4130.3-1 is amended by revising the 
    second sentence of paragraph (a) and adding a new paragraph (c) to read 
    as follows:
    
    
    Sec. 4130.3-1   Mandatory terms and conditions.
    
        (a) * * * The authorized livestock grazing use shall not exceed the 
    livestock carrying capacity of the allotment.
    * * * * *
        (c) Permits and leases shall incorporate terms and conditions that 
    ensure conformance with subpart 4180 of this part.
        46. Newly redesignated Sec. 4130.3-2 is amended by revising 
    paragraph (f), removing the period from the end of paragraph (g) and 
    adding an ``; and'' and by adding a new paragraph (h) to read as 
    follows:
    
    
    Sec. 4130.3-2   Other terms and conditions.
    
    * * * * *
        (f) Provision for livestock grazing temporarily to be delayed, 
    discontinued or modified to allow for the reproduction, establishment, 
    or restoration of vigor of plants, provide for the improvement of 
    riparian areas to achieve proper functioning condition or for the 
    protection of other rangeland resources and values consistent with 
    objectives of applicable land use plans, or to prevent compaction of 
    wet soils, such as where delay of spring turnout is required because of 
    weather conditions or lack of plant growth;
    * * * * *
        (h) A statement disclosing the requirement that permittees or 
    lessees shall provide reasonable administrative access across private 
    and leased lands to the Bureau of Land Management for the orderly 
    management and protection of the public lands.
        47. Newly redesignated Sec. 4130.3-3 is revised to read as follows:
    
    
    Sec. 4130.3-3   Modification of permits or leases.
    
        Following consultation, cooperation, and coordination with the 
    affected lessees or permittees, the State having lands or responsible 
    for managing resources within the area, and the interested public, the 
    authorized officer may modify terms and conditions of the permit or 
    lease when the active use or related management practices are not 
    meeting the land use plan, allotment management plan or other activity 
    plan, or management objectives, or is not in conformance with the 
    provisions of subpart 4180 of this part. To the extent practical, the 
    authorized officer shall provide to affected permittees or lessees, 
    States having lands or responsibility for managing resources within the 
    affected area, and the interested public an opportunity to review, 
    comment and give input during the preparation of reports that evaluate 
    monitoring and other data that are used as a basis for making decisions 
    to increase or decrease grazing use, or to change the terms and 
    conditions of a permit or lease.
        48. Newly redesignated Sec. 4130.4 is amended by revising the 
    heading and paragraph (b) to read as follows:
    
    
    Sec. 4130.4   Approval of changes in grazing use within the terms and 
    conditions of permits and leases.
    
    * * * * *
        (b) Changes in grazing use within the terms and conditions of the 
    permit or lease may be granted by the authorized officer. Permittees 
    and lessees may apply to activate forage in temporary nonuse or 
    conservation use or to place forage in temporary nonuse or conservation 
    use, and may apply for the use of forage that is temporarily available 
    on designated ephemeral or annual ranges.
        49. Newly redesignated Sec. 4130.5 is amended by designating the 
    text as paragraph (a), and by adding paragraph (b) to read as follows:
    
    
    Sec. 4130.5   Free-use grazing permits.
    
    * * * * *
        (b) The authorized officer may also authorize free use under the 
    following circumstances:
        (1) The primary objective of authorized grazing use or conservation 
    use is the management of vegetation to meet resource objectives other 
    than the production of livestock forage and such use is in conformance 
    with the requirements of this part;
        (2) The primary purpose of grazing use is for scientific research 
    or administrative studies; or
        (3) The primary purpose of grazing use is the control of noxious 
    weeds.
        50. Reserved Secs. 4130.5-1 through 4130.5-3 are removed.
        51. In newly redesignated Sec. 4130.6-1, paragraph (a) is revised 
    to read as follows: [[Page 9967]] 
    
    
    Sec. 4130.6-1   Exchange-of-use grazing agreements.
    
        (a) An exchange-of-use grazing agreement may be issued to an 
    applicant who owns or controls lands that are unfenced and intermingled 
    with public lands in the same allotment when use under such an 
    agreement will be in harmony with the management objectives for the 
    allotment and will be compatible with the existing livestock 
    operations. The agreements shall contain appropriate terms and 
    conditions required under Sec. 4130.3 that ensure the orderly 
    administration of the range, including fair and equitable sharing of 
    the operation and maintenance of range improvements. The term of an 
    exchange-of-use agreement may not exceed the length of the term for any 
    leased lands that are offered in exchange-of-use.
    * * * * *
        52. Newly redesignated Sec. 4130.6-2 is amended by adding a 
    sentence to the end to read as follows:
    
    
    Sec. 4130.6-2  Nonrenewable grazing permits and leases.
    
        * * * The authorized officer shall consult, cooperate and 
    coordinate with affected permittees or lessees, the State having lands 
    or responsible for managing resources within the area, and the 
    interested public prior to the issuance of nonrenewable grazing permits 
    and leases.
        53. Newly redesignated Sec. 4130.6-3 is revised to read as follows:
    
    
    Sec. 4130.6-3  Crossing permits.
    
        A crossing permit may be issued by the authorized officer to any 
    applicant showing a need to cross the public land or other land under 
    Bureau of Land Management control, or both, with livestock for proper 
    and lawful purposes. A temporary use authorization for trailing 
    livestock shall contain terms and conditions for the temporary grazing 
    use that will occur as deemed necessary by the authorized officer to 
    achieve the objectives of this part.
        54. Newly redesignated Sec. 4130.7 is amended by revising paragraph 
    (d) and adding a new paragraph (f) to read as follows:
    
    
    Sec. 4130.7  Ownership and identification of livestock.
    
    * * * * *
        (d) Except as provided in paragraph (f) of this section, where a 
    permittee or lessee controls but does not own the livestock which graze 
    the public lands, the agreement that gives the permittee or lessee 
    control of the livestock by the permittee or lessee shall be filed with 
    the authorized officer and approval received prior to any grazing use. 
    The document shall describe the livestock and livestock numbers, 
    identify the owner of the livestock, contain the terms for the care and 
    management of the livestock, specify the duration of the agreement, and 
    shall be signed by the parties to the agreement.
    * * * * *
        (f) Livestock owned by sons and daughters of grazing permittees and 
    lessees may graze public lands included within the permit or lease of 
    their parents when all the following conditions exist:
        (1) The sons and daughters are participating in educational or 
    youth programs related to animal husbandry, agribusiness or rangeland 
    management, or are actively involved in the family ranching operation 
    and are establishing a livestock herd with the intent of assuming part 
    or all of the family ranch operation.
        (2) The livestock owned by the sons and daughters to be grazed on 
    public lands do not comprise greater than 50 percent of the total 
    number authorized to occupy public lands under their parent's permit or 
    lease.
        (3) The brands or other markings of livestock that are owned by 
    sons and daughters are recorded on the parent's permit, lease, or 
    grazing application.
        (4) Use by livestock owned by sons and daughters, when considered 
    in addition to use by livestock owned or controlled by the permittee or 
    lessee, does not exceed authorized livestock use and is consistent with 
    other terms and conditions of the permit or lease.
        55. Newly redesignated Sec. 4130.8-1 is amended by revising 
    paragraph (c), redesignating paragraphs (d) and (e) as paragraphs (e) 
    and (f), respectively, adding a new paragraph (d) and amending newly 
    designated paragraph (e) by adding a new sentence after the second 
    sentence and a sentence to the end of the paragraph to read as follows:
    
    
    Sec. 4130.8-1  Payment of fees.
    
    * * * * *
        (c) Except as provided in Sec. 4130.5, the full fee shall be 
    charged for each animal unit month of authorized grazing use. For the 
    purposes of calculating the fee, an animal unit month is defined as a 
    month's use and occupancy of range by 1 cow, bull, steer, heifer, 
    horse, burro, mule, 5 sheep, or 5 goats, over the age of 6 months at 
    the time of entering the public lands or other lands administered by 
    BLM; by any such weaned animals regardless of age; and by such animals 
    that will become 12 months of age during the authorized period of use. 
    No charge shall be made for animals under 6 months of age, at the time 
    of entering public lands or other lands administered by the Bureau of 
    Land Management, that are the natural progeny of animals upon which 
    fees are paid, provided they will not become 12 months of age during 
    the authorized period of use, nor for progeny born during that period. 
    In calculating the billing the grazing fee is prorated on a daily basis 
    and charges are rounded to reflect the nearest whole number of AUMs.
        (d) A surcharge shall be added to the grazing fee billings for 
    authorized grazing of livestock owned by persons other than the 
    permittee or lessee except where such use is made by livestock owned by 
    sons and daughters of permittees and lessees as provided in 
    Sec. 4130.7(f). The surcharge shall be over and above any other fees 
    that may be charged for using public land forage. Surcharges shall be 
    paid prior to grazing use. The surcharge for authorized pasturing of 
    livestock owned by persons other than the permittee or lessee will be 
    equal to 35 percent of the difference between the current year's 
    Federal grazing fee and the prior year's private grazing land lease 
    rate per AUM for the appropriate State as determined by the National 
    Agricultural Statistics Service.
        (e) * * * Grazing use that occurs prior to payment of a bill, 
    except where specified in an allotment management plan, is unauthorized 
    and may be dealt with under subparts 4150 and 4170 of this part. * * * 
    Repeated delays in payment of actual use billings or noncompliance with 
    the terms and conditions of the allotment management plan and permit or 
    lease shall be cause to revoke provisions for after-the-grazing-season 
    billing.
    * * * * *
        56. The first sentence of newly designated Sec. 4130.8-3 is revised 
    to read as follows:
    
    
    Sec. 4130.8-3  Service charge.
    
        A service charge may be assessed for each crossing permit, transfer 
    of grazing preference, application solely for nonuse or conservation 
    use, and each replacement or supplemental billing notice except for 
    actions initiated by the authorized officer. * * *
    
    Subpart 4140--Prohibited Acts
    
        57. Section 4140.1 is amended by revising the introductory text of 
    paragraph (a), paragraphs (a)(2), (a)(6), the introductory text of 
    paragraph (b), paragraphs (b)(1)(i), (b)(5), (b)(7), (b)(9), and 
    (b)(10); and by adding paragraphs (b)(11), and (c) to read as follows: 
    [[Page 9968]] 
    
    
    Sec. 4140.1  Acts prohibited on public lands.
    
        (a) Grazing permittees or lessees performing the following 
    prohibited acts may be subject to civil penalties under Sec. 4170.1:
    * * * * *
        (2) Failing to make substantial grazing use as authorized for 2 
    consecutive fee years, but not including approved temporary nonuse, 
    conservation use, or use temporarily suspended by the authorized 
    officer.
    * * * * *
        (6) Unauthorized leasing or subleasing as defined in this part.
        (b) Persons performing the following prohibited acts related to 
    rangelands to civil and criminal penalties set forth at Secs. 4170.1 
    and 4170.2:
        (1) * * *
        (i) Without a permit or lease, and an annual grazing authorization. 
    For the purposes of this paragraph, grazing bills for which payment has 
    not been received do not constitute grazing authorization.
    * * * * *
        (5) Molesting, harassing, injuring, poisoning, or causing death of 
    livestock authorized to graze on these lands and removing authorized 
    livestock without the owner's consent;
    * * * * *
        (7) Interfering with lawful uses or users including obstructing 
    free transit through or over public lands by force, threat, 
    intimidation, signs, barrier or locked gates;
    * * * * *
        (9) Failing to pay any fee required by the authorized officer 
    pursuant to this part, or making payment for grazing use of public 
    lands with insufficiently funded checks on a repeated and willful 
    basis;
        (10) Failing to reclaim and repair any lands, property, or 
    resources when required by the authorized officer;
        (11) Failing to reclose any gate or other entry during periods of 
    livestock use.
        (c) Performance of an act listed in paragraphs (c)(1), (c)(2) or 
    (c)(3) of this section where public land administered by the Bureau of 
    Land Management is involved or affected, the violation is related to 
    grazing use authorized by a permit or lease issued by the Bureau of 
    Land Management, and the permittee or lessee has been convicted or 
    otherwise found to be in violation of any of these laws or regulations 
    by a court or by final determination of an agency charged with the 
    administration of these laws or regulations, and no further appeals are 
    outstanding, constitutes a prohibited act that may be subject to the 
    civil penalties set forth at Sec. 4170.1-1.
        (1) Violation of Federal or State laws or regulations pertaining to 
    the:
        (i) Placement of poisonous bait or hazardous devices designed for 
    the destruction of wildlife;
        (ii) Application or storage of pesticides, herbicides, or other 
    hazardous materials;
        (iii) Alteration or destruction of natural stream courses without 
    authorization;
        (iv) Pollution of water sources;
        (v) Illegal take, destruction or harassment, or aiding and abetting 
    in the illegal take, destruction or harassment of fish and wildlife 
    resources; and
        (vi) Illegal removal or destruction of archeological or cultural 
    resources;
        (2) Violation of the Bald Eagle Protection Act (16 U.S.C. 668 et 
    seq.), Endangered Species Act (16 U.S.C. 1531 et seq.), or any 
    provision of part 4700 of this chapter concerning the protection and 
    management of wild free-roaming horses and burros; or
        (3) Violation of State livestock laws or regulations relating to 
    the branding of livestock; breed, grade, and number of bulls; health 
    and sanitation requirements; and violating State, county, or local laws 
    regarding the stray of livestock from permitted public land grazing 
    areas onto areas that have been formally closed to open range grazing.
    
    Subpart 4150--Unauthorized Grazing Use
    
        58. Section 4150.1 is amended by designating the second sentence as 
    paragraph (b) and adding a new paragraph (a) following the undesignated 
    first sentence to read as follows:
    
    
    Sec. 4150.1  Violations.
    
    * * * * *
        (a) The authorized officer shall determine whether a violation is 
    nonwillful, willful, or repeated willful.
    * * * * *
        59. Section 4150.2 is amended by redesignating paragraph (b) as 
    paragraph (c), and adding new paragraphs (b) and (d) to read as 
    follows:
    
    
    Sec. 4150.2  Notice and order to remove.
    
    * * * * *
        (b) Whenever a violation has been determined to be nonwillful and 
    incidental, the authorized officer shall notify the alleged violator 
    that the violation must be corrected, and how it can be settled, based 
    upon the discretion of the authorized officer.
    * * * * *
        (d) The authorized officer may temporarily close areas to grazing 
    by specified kinds or class of livestock for a period not to exceed 12 
    months when necessary to abate unauthorized grazing use. Such notices 
    of closure may be issued as final decisions effective upon issuance or 
    on the date specified in the decision and shall remain in effect 
    pending the decision on appeal unless a stay is granted by the Office 
    of Hearings and Appeals in accordance with 43 CFR 4.21.
        60. Section 4150.3 is amended by removing the quotation mark, 
    semicolon, and the word ``and'' at the end of paragraph (c), and 
    removing the first sentence of the introductory text, and revising the 
    sentence following the new first sentence of the introductory text, and 
    revising paragraph (a) to read as follows:
    
    
    Sec. 4150.3  Settlement.
    
        * * * The amount due for settlement shall include the value of 
    forage consumed as determined in accordance with paragraph (a), (b), or 
    (c) of this section. * * *
        (a) For nonwillful violations: The value of forage consumed as 
    determined by the average monthly rate per AUM for pasturing livestock 
    on privately owned land (excluding irrigated land) in each State as 
    published annually by the Department of Agriculture. The authorized 
    officer may approve nonmonetary settlement of unauthorized use only 
    when the authorized officer determines that each of the following 
    conditions is satisfied:
        (1) Evidence shows that the unauthorized use occurred through no 
    fault of the livestock operator;
        (2) The forage use is insignificant;
        (3) The public lands have not been damaged; and
        (4) Nonmonetary settlement is in the best interest of the United 
    States.
    * * * * *
    
    Subpart 4160--Administrative Remedies
    
        61. Section 4160.1 is revised to read as follows:
    
    
    Sec. 4160.1  Proposed decisions.
    
        (a) Proposed decisions shall be served on any affected applicant, 
    permittee or lessee, and any agent and lien holder of record, who is 
    affected by the proposed actions, terms or conditions, or modifications 
    relating to applications, permits and agreements (including range 
    improvement permits) or leases, by certified mail or personal delivery. 
    Copies of proposed decisions shall also be sent to the interested 
    public.
        (b) Proposed decisions shall state the reasons for the action and 
    shall [[Page 9969]] reference the pertinent terms, conditions and the 
    provisions of applicable regulations. As appropriate, decisions shall 
    state the alleged violations of specific terms and conditions and 
    provisions of these regulations alleged to have been violated, and 
    shall state the amount due under Secs. 4130.8 and 4150.3 and the action 
    to be taken under Sec. 4170.1.
        (c) The authorized officer may elect not to issue a proposed 
    decision prior to a final decision where the authorized officer has 
    made a determination in accordance with Sec. 4110.3-3(b) or 
    Sec. 4150.2(d).
    
    
    Secs. 4160.1-1 and 4160.1-2  [Removed]
    
        62. Sections 4160.1-1 and 4160.1-2 are removed.
        63. Section 4160.3 is amended by removing from paragraph (b) the 
    words ``on other affected interests'' and adding in their place the 
    words ``the interested public,'' revising paragraph (a), and paragraph 
    (c), and adding new paragraphs (d), (e), and (f) to read as follows:
    
    
    Sec. 4160.3  Final decisions.
    
        (a) In the absence of a protest, the proposed decision will become 
    the final decision of the authorized officer without further notice 
    unless otherwise provided in the proposed decision.
    * * * * *
        (c) A period of 30 days following receipt of the final decision, or 
    30 days after the date the proposed decision becomes final as provided 
    in paragraph (a) of this section, is provided for filing an appeal and 
    petition for stay of the decision pending final determination on 
    appeal. A decision will not be effective during the 30-day appeal 
    period, except as provided in paragraph (f) of this section. See 
    Secs. 4.21 and 4.470 of this title for general provisions of the appeal 
    and stay processes.
        (d) When the Office of Hearings and Appeals stays a final decision 
    of the authorized officer regarding an application for grazing 
    authorization, an applicant who was granted grazing use in the 
    preceding year may continue at that level of authorized grazing use 
    during the time the decision is stayed, except where grazing use in the 
    preceding year was authorized on a temporary basis under Sec. 4110.3-
    1(a). Where an applicant had no authorized grazing use during the 
    previous year, or the application is for designated ephemeral or annual 
    rangeland grazing use, the authorized grazing use shall be consistent 
    with the final decision pending the Office of Hearings and Appeals 
    final determination on the appeal.
        (e) When the Office of Hearings and Appeals stays a final decision 
    of the authorized officer to change the authorized grazing use, the 
    grazing use authorized to the permittee or lessee during the time that 
    the decision is stayed shall not exceed the permittee's or lessee's 
    authorized use in the last year during which any use was authorized.
        (f) Notwithstanding the provisions of Sec. 4.21(a) of this title 
    pertaining to the period during which a final decision will not be in 
    effect, the authorized officer may provide that the final decision 
    shall be effective upon issuance or on a date established in the 
    decision and shall remain in effect pending the decision on appeal 
    unless a stay is granted by the Office of Hearings and Appeals when the 
    authorized officer has made a determination in accordance with 
    Sec. 4110.3-3(b) or Sec. 4150.2(d). Nothing in this section shall 
    affect the authority of the Director of the Office of Hearings and 
    Appeals or the Interior Board of Land Appeals to place decisions in 
    full force and effect as provided in Sec. 4.21(a)(1) of this title.
        64. Section 4160.4 is revised to read as follows:
    
    
    Sec. 4160.4  Appeals.
    
        Any person whose interest is adversely affected by a final decision 
    of the authorized officer may appeal the decision for the purpose of a 
    hearing before an administrative law judge by following the 
    requirements set out in Sec. 4.470 of this title. As stated in that 
    part, the decision must be filed within 30 days after receipt of the 
    final decision or within 30 days after the date the proposed decision 
    becomes final as provided in Sec. 4160.3(a). Appeals and petitions for 
    a stay of the decision shall be filed at the office of the authorized 
    officer. The authorized officer shall promptly transmit the appeal and 
    petition for stay and the accompanying administrative record to ensure 
    their timely arrival at the Office of Hearings and Appeals.
    
    Subpart 4170--Penalties
    
        65. Section 4170.1-1 is amended by revising the first sentence of 
    paragraph (d) to read as follows:
    
    
    Sec. 4170.1-1  Penalty for violations.
    
    * * * * *
        (d) Any person found to have violated the provisions of 
    Sec. 4140.1(a)(6) after August 21, 1995, shall be required to pay twice 
    the value of forage consumed as determined by the average monthly rate 
    per AUM for pasturing livestock on privately owned land (excluding 
    irrigated land) in each State as supplied annually by the National 
    Agricultural Statistics Service, and all reasonable expenses incurred 
    by the United States in detecting, investigating, and resolving 
    violations. * * *
        66. Section 4170.1-2 is revised to read as follows:
    
    
    Sec. 4170.1-2  Failure To use.
    
        If a permittee or lessee has, for 2 consecutive grazing fee years, 
    failed to make substantial use as authorized in the lease or permit, or 
    has failed to maintain or use water base property in the grazing 
    operation, the authorized officer, after consultation, coordination, 
    and cooperation with the permittee or lessee and any lienholder of 
    record, may cancel whatever amount of permitted use the permittee or 
    lessee has failed to use.
    
    
    Sec. 4170.1-3  [Removed]
    
        67. Section 4170.1-3 is removed.
        68. Section 4170.2-1 is revised to read as follows:
    
    
    Sec. 4170.2-1  Penal provisions under the Taylor Grazing Act.
    
        Under section 2 of the Act any person who willfully commits an act 
    prohibited under Sec. 4140.1(b), or who willfully violates approved 
    special rules and regulations is punishable by a fine of not more than 
    $500.
        69. Section 4170.2-2 is revised to read as follows:
    
    
    Sec. 4170.2-2  Penal provisions under the Federal Land Policy and 
    Management Act.
    
        Under section 303(a) of the Federal Land Policy and Management Act 
    of 1976 (43 U.S.C. 1701 et seq.), any person who knowingly and 
    willfully commits an act prohibited under Sec. 4140.1(b) or who 
    knowingly and willfully violates approved special rules and regulations 
    may be brought before a designated U.S. magistrate and is punishable by 
    a fine in accordance with the applicable provisions of Title 18 of the 
    United States Code, or imprisonment for no more than 12 months, or 
    both.
        70. Subpart 4180 is added to read as follows:
    Subpart 4180--Fundamentals of Rangeland Health and Standards and 
    Guidelines for Grazing Administration
    Sec.
    4180.1  Fundamentals of rangeland health.
    4180.2  Standards and guidelines for grazing administration. 
    [[Page 9970]] 
    
    Subpart 4180--Fundamentals of Rangeland Health and Standards and 
    Guidelines for Grazing Administration
    
    
    Sec. 4180.1  Fundamentals of rangeland health.
    
        The authorized officer shall take appropriate action under subparts 
    4110, 4120, 4130, and 4160 of this part as soon as practicable but not 
    later than the start of the next grazing year upon determining that 
    existing grazing management needs to be modified to ensure that the 
    following conditions exist.
        (a) Watersheds are in, or are making significant progress toward, 
    properly functioning physical condition, including their upland, 
    riparian-wetland, and aquatic components; soil and plant conditions 
    support infiltration, soil moisture storage, and the release of water 
    that are in balance with climate and landform and maintain or improve 
    water quality, water quantity, and timing and duration of flow.
        (b) Ecological processes, including the hydrologic cycle, nutrient 
    cycle, and energy flow, are maintained, or there is significant 
    progress toward their attainment, in order to support healthy biotic 
    populations and communities.
        (c) Water quality complies with State water quality standards and 
    achieves, or is making significant progress toward achieving, 
    established BLM management objectives such as meeting wildlife needs.
        (d) Habitats are, or are making significant progress toward being, 
    restored or maintained for Federal threatened and endangered species, 
    Federal Proposed, Category 1 and 2 Federal candidate and other special 
    status species.
    
    
    Sec. 4180.2  Standards and guidelines for grazing administration.
    
        (a) The Bureau of Land Management State Director, in consultation 
    with the affected resource advisory councils where they exist, will 
    identify the geographical area for which standards and guidelines are 
    developed. Standards and guidelines will be developed for an entire 
    state, or an area encompassing portions of more than 1 state, unless 
    the Bureau of Land Management State Director, in consultation with the 
    resource advisory councils, determines that the characteristics of an 
    area are unique, and the rangelands within the area could not be 
    adequately protected using standards and guidelines developed on a 
    broader geographical scale.
        (b) The Bureau of Land Management State Director, in consultation 
    with affected Bureau of Land Management resource advisory councils, 
    shall develop and amend State or regional standards and guidelines. The 
    Bureau of Land Management State Director will also coordinate with 
    Indian tribes, other State and Federal land management agencies 
    responsible for the management of lands and resources within the region 
    or area under consideration, and the public in the development of State 
    or regional standards and guidelines. Standards and guidelines 
    developed by the Bureau of Land Management State Director must provide 
    for conformance with the fundamentals of Sec. 4180.1. State or regional 
    standards or guidelines developed by the Bureau of Land Management 
    State Director may not be implemented prior to their approval by the 
    Secretary. Standards and guidelines made effective under paragraph (f) 
    of this section may be modified by the Bureau of Land Management State 
    Director, with approval of the Secretary, to address local ecosystems 
    and management practices.
        (c) The authorized officer shall take appropriate action as soon as 
    practicable but not later than the start of the next grazing year upon 
    determining that existing grazing management practices or levels of 
    grazing use on public lands are significant factors in failing to 
    achieve the standards and conform with the guidelines that are made 
    effective under this section. Appropriate action means implementing 
    actions pursuant to subparts 4110, 4120, 4130, and 4160 of this part 
    that will result in significant progress toward fulfillment of the 
    standards and significant progress toward conformance with the 
    guidelines. Practices and activities subject to standards and 
    guidelines include the development of grazing-related portions of 
    activity plans, establishment of terms and conditions of permits, 
    leases and other grazing authorizations, and range improvement 
    activities such as vegetation manipulation, fence construction and 
    development of water.
        (d) At a minimum, State or regional standards developed under 
    paragraphs (a) and (b) of this section must address the following:
        (1) Watershed function;
        (2) Nutrient cycling and energy flow;
        (3) Water quality;
        (4) Habitat for endangered, threatened, proposed, Candidate 1 or 2, 
    or special status species; and
        (5) Habitat quality for native plant and animal populations and 
    communities.
        (e) At a minimum, State or regional guidelines developed under 
    paragraphs (a) and (b) of this section must address the following:
        (1) Maintaining or promoting adequate amounts of vegetative ground 
    cover, including standing plant material and litter, to support 
    infiltration, maintain soil moisture storage, and stabilize soils;
        (2) Maintaining or promoting subsurface soil conditions that 
    support permeability rates appropriate to climate and soils;
        (3) Maintaining, improving or restoring riparian-wetland functions 
    including energy dissipation, sediment capture, groundwater recharge, 
    and stream bank stability;
        (4) Maintaining or promoting stream channel morphology (e.g., 
    gradient, width/depth ratio, channel roughness and sinuosity) and 
    functions appropriate to climate and landform;
        (5) Maintaining or promoting the appropriate kinds and amounts of 
    soil organisms, plants and animals to support the hydrologic cycle, 
    nutrient cycle, and energy flow;
        (6) Promoting the opportunity for seedling establishment of 
    appropriate plant species when climatic conditions and space allow;
        (7) Maintaining, restoring or enhancing water quality to meet 
    management objectives, such as meeting wildlife needs;
        (8) Restoring, maintaining or enhancing habitats to assist in the 
    recovery of Federal threatened and endangered species;
        (9) Restoring, maintaining or enhancing habitats of Federal 
    Proposed, Category 1 and 2 Federal candidate, and other special status 
    species to promote their conservation;
        (10) Maintaining or promoting the physical and biological 
    conditions to sustain native populations and communities;
        (11) Emphasizing native species in the support of ecological 
    function; and
        (12) Incorporating the use of non-native plant species only in 
    those situations in which native species are not available in 
    sufficient quantities or are incapable of maintaining or achieving 
    properly functioning conditions and biological health;
        (f) In the event that State or regional standards and guidelines 
    are not completed and in effect by February 12, 1997, and until such 
    time as State or regional standards and guidelines are developed and in 
    effect, the following standards provided in paragraph (f)(1) of this 
    section and guidelines provided in paragraph (f)(2) of this section 
    shall apply and will be implemented in accordance with paragraph (c) of 
    this section. [[Page 9971]] 
        (1) Fallback standards. (i) Upland soils exhibit infiltration and 
    permeability rates that are appropriate to soil type, climate and 
    landform.
        (ii) Riparian-wetland areas are in properly functioning condition.
        (iii) Stream channel morphology (including but not limited to 
    gradient, width/depth ratio, channel roughness and sinuosity) and 
    functions are appropriate for the climate and landform.
        (iv) Healthy, productive and diverse populations of native species 
    exist and are maintained.
        (2) Fallback guidelines. (i) Management practices maintain or 
    promote adequate amounts of ground cover to support infiltration, 
    maintain soil moisture storage, and stabilize soils;
        (ii) Management practices maintain or promote soil conditions that 
    support permeability rates that are appropriate to climate and soils;
        (iii) Management practices maintain or promote sufficient residual 
    vegetation to maintain, improve or restore riparian-wetland functions 
    of energy dissipation, sediment capture, groundwater recharge and 
    stream bank stability;
        (iv) Management practices maintain or promote stream channel 
    morphology (e.g., gradient, width/depth ratio, channel roughness and 
    sinuosity) and functions that are appropriate to climate and landform;
        (v) Management practices maintain or promote the appropriate kinds 
    and amounts of soil organisms, plants and animals to support the 
    hydrologic cycle, nutrient cycle, and energy flow;
        (vi) Management practices maintain or promote the physical and 
    biological conditions necessary to sustain native populations and 
    communities;
        (vii) Desired species are being allowed to complete seed 
    dissemination in 1 out of every 3 years (Management actions will 
    promote the opportunity for seedling establishment when climatic 
    conditions and space allow.);
        (viii) Conservation of Federal threatened or endangered, Proposed, 
    Category 1 and 2 candidate, and other special status species is 
    promoted by the restoration and maintenance of their habitats;
        (ix) Native species are emphasized in the support of ecological 
    function;
        (x) Non-native plant species are used only in those situations in 
    which native species are not readily available in sufficient quantities 
    or are incapable of maintaining or achieving properly functioning 
    conditions and biological health;
        (xi) Periods of rest from disturbance or livestock use during times 
    of critical plant growth or regrowth are provided when needed to 
    achieve healthy, properly functioning conditions (The timing and 
    duration of use periods shall be determined by the authorized 
    officer.);
        (xii) Continuous, season-long livestock use is allowed to occur 
    only when it has been demonstrated to be consistent with achieving 
    healthy, properly functioning ecosystems;
        (xiii) Facilities are located away from riparian-wetland areas 
    wherever they conflict with achieving or maintaining riparian-wetland 
    function;
        (xiv) The development of springs and seeps or other projects 
    affecting water and associated resources shall be designed to protect 
    the ecological functions and processes of those sites; and
        (xv) Grazing on designated ephemeral (annual and perennial) 
    rangeland is allowed to occur only if reliable estimates of production 
    have been made, an identified level of annual growth or residue to 
    remain on site at the end of the grazing season has been established, 
    and adverse effects on perennial species are avoided.
    Bruce Babbitt,
    Secretary of the Interior.
    [FR Doc. 95-3866 Filed 2-21-95; 8:45 am]
    BILLING CODE 4310-84-P
    
    

Document Information

Effective Date:
8/21/1995
Published:
02/22/1995
Department:
Land Management Bureau
Entry Type:
Rule
Action:
Final rule.
Document Number:
95-3866
Dates:
This rule will be effective August 21, 1995.
Pages:
9894-9971 (78 pages)
Docket Numbers:
WO-400-1110-00 24 1A
RINs:
1004-AB89
PDF File:
95-3866.pdf
CFR: (81)
43 CFR 4110.2-1(a)
43 CFR 4140.1(a)(6)
43 CFR 4110.3-3(b)
43 CFR 4130.4(b)
43 CFR 4140.1(b)
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