[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]]
_______________________________________________________________________
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.
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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
