[Federal Register: December 8, 2003 (Volume 68, Number 235)]
[Proposed Rule]
[Page 68451-68474]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08de03-16]
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Part II
Department of the Interior
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Bureau of Land Management
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43 CFR Part 4100
Grazing Administration--Exclusive of Alaska; Proposed Rule
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DEPARTMENT OF THE INTERIOR
Bureau of Land Management
43 CFR Part 4100
[WO-220-1020-24 1A]
RIN: 1004-AD42
Grazing Administration--Exclusive of Alaska
AGENCY: Bureau of Land Management, Interior.
ACTION: Proposed rule.
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SUMMARY: The Bureau of Land Management (BLM) proposes amending its
regulations concerning how BLM administers livestock grazing on public
lands. The proposed changes would: improve BLM's day-to-day grazing
management efficiency; ensure BLM documents its considerations of the
social, cultural, environmental, and economic consequences of grazing
changes; provide that changes in grazing use be phased-in under certain
circumstances; allow BLM to share title with permittees and lessees to
range improvements in certain circumstances; make clear how BLM will
authorize grazing if a BLM decision affecting a grazing permit is
stayed pending administrative appeal consistent with court rulings;
remove provisions in the present regulations concerning conservation
use grazing permits; ensure adequate time for developing and
successfully implementing an appropriate management action when BLM
finds that current grazing management does not meet standards and
guidelines for rangeland health, and that authorized grazing is a
significant factor in not achieving one or more land health standards
or not conforming with guidelines for grazing administration; and
revise some administrative fees. We intend these changes to improve
working relationships with permittees and lessees, enhance
administrative efficiency, and cost effectiveness, clarify the
regulations and protect the health of rangelands.
DATES: You should submit your comments on or before February 6, 2004.
The BLM may not necessarily consider comments postmarked or received by
messenger or electronic mail after the above date in the decision-
making process on the final rule.
Public meetings will be held on dates and at times and places to be
announced in subsequent Federal Register documents.
ADDRESSES: Mail: Director (630), Bureau of Land Management, Eastern
States Office, 7450 Boston Boulevard, Springfield, Virginia 22153,
Attention: RIN 1004-AD42.
Personal or messenger delivery: 1620 L Street NW., Suite 401,
Washington, DC 20036.
Direct Internet response: http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.blm.gov/nhp/news/regulatory/index.htm or http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.blm.gov/grazing.
E-mail: WOComment@blm.gov.
FOR FURTHER INFORMATION CONTACT: Ken Visser, Rangeland Management
Specialist, Rangeland, Soils, Water and Air Group, (202) 452-7743, Ted
Hudson (202) 452-5042 or Cynthia Ellis (202) 452-5012 of the Regulatory
Affairs Group. Individuals who use a telecommunications device for the
deaf (TDD) may contact them individually through the Federal
Information Relay Service at 1-800/877-8339, 24 hours a day, seven days
a week.
SUPPLEMENTARY INFORMATION:
I. Public Comment Procedures
II. Background
III. Why We Are Proposing This Rule
IV. Section-by-Section Analysis
V. Procedural Matters
I. Public Comment Procedures
A. How Do I File Comments?
If you wish to comment, you may submit your comments by any one of
several methods.
[sbull] You may mail your comments to: Director (630), Bureau of
Land Management, Eastern States Office, 7450 Boston Boulevard,
Springfield, Virginia, 22153.
[sbull] You may deliver comments to 1620 L Street NW., Suite 401,
Washington, DC 20036.
[sbull] You may comment via the Internet by accessing our automated
commenting system located at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.blm.gov/nhp/news/regulatory/index.htm
and following the instructions there. [sbull] You may comment via email at WOComment@blm.gov.
Please make your comments on the proposed rule as specific as
possible, confine them to issues pertinent to the proposed rule, and
explain the reason for any changes you recommend. Where possible, your
comments should reference the specific section or paragraph of the
proposal that you are addressing.
The Department of the Interior may not necessarily consider or
include in the Administrative Record for the final rule comments that
we receive after the close of the comment period (see DATES) or
comments delivered to an address other than those listed above (see
ADDRESSES).
B. May I Review Comments Others Submit?
BLM intends to post all comments on the Internet. If you are
requesting that your comment remain confidential, do not send us your
comment at the Internet or e-mail address because we immediately post
all comments we receive on the Internet. Also, comments, including
names and street addresses of respondents, will be available for public
review at the address listed under ADDRESSES: Personal or messenger
delivery'' during regular business hours (7:45 a.m. to 4:15 p.m.),
Monday through Friday, except holidays.
Individual respondents may request confidentiality, which we will
honor to the extent allowable by law. If you wish to withhold your name
or address, except for the city or town, you must state this
prominently at the beginning of your comment. We will make all
submissions from organizations or businesses, and from individuals
identifying themselves as representatives or officials of organizations
or businesses, available for public inspection in their entirety.
II. Background
The regulations on livestock grazing provide the framework for a
public land use that has its roots in the settlement of West. The
tradition of orderly use of public range in conjunction with private
lands was recognized in law with the passage of the Taylor Grazing Act
(TGA) in the 1930s, and again in 1976 with the Federal Land Policy and
Management Act. The intent of the regulations has always been for the
agency to consult and cooperate with the ranchers, private landowners,
and other users of the public lands. Our shared purpose must be to
sustain the open space, habitat, and watershed values that the public
and private lands together can offer.
Providing for livestock grazing is part of the BLM mission to
sustain the health, diversity, and productivity of public lands. In
part because of its long history, public land grazing is woven into the
landscapes and cultures of the rural West, and contributes valuable
landscape and culture elements. Our challenge is to establish a
framework that helps us accomplish our shared stewardship purpose in a
manner that works well in the social and economic context of affected
communities.
The ranching families of livestock permittees live and work in the
heart of the Western rural landscapes. Their relationship with BLM
needs to be more than regulatory if we are to engage in conservation of
entire landscapes. Our goals must be to establish simple and
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practical ways for permittees, lessees, affected state and local
officials, and the interested public to engage with BLM in partnerships
that will leave improved open space, watershed, and habitat conditions
to the next generation.
Without careful consideration of policy decisions affecting
ranching, conversion of this rural West to something different is
entirely possible. This conversion is frequently in evidence along the
expanding urban interfaces of the West: development of ranchland into
subdivisions, changes in water use and watershed characteristics, and
changes in fire frequency and effects. Some of these changes are
necessary as populations grow and shift, but also necessary is
retaining large tracts of the rural West. A proper regulatory framework
for managing grazing use can contribute to maintaining Western
landscapes.
Whenever BLM addresses changes in regulations, we engage in a
public dialogue to ensure all points of view are considered. The
changes proposed in this rule seek to strike a balance among competing
goals, and to keep administrative processes as simple, understandable,
and flexible as possible. Meaningful, positive, and sustainable change
on the rangelands of the West can best be accomplished through
cooperation.
The proposed amendments of the grazing regulations were developed
using three primary concepts:
(1) Improving cooperation with all interested persons, especially
with directly affected permittees and landowners;
(2) Promoting practical mechanisms for assessing change in
rangelands and protecting rangelands by increasing monitoring
activities; and
(3) Enhancing administrative efficiency and effectiveness,
including addressing legal issues that need clarification.
Applying these three concepts should strengthen the regulations and
promote communication oriented toward seeking agreement and working
together. Together we can gather more and better information on
observed trends in the vegetation communities of the West. We can
resolve some legal matters that have been barriers to meaningful
dialogue about the issues we need to address. And we can sharpen the
focus on the issues that truly need our attention as we seek to ensure
proper grazing management as a part of conserving the rural landscapes
of the West.
BLM administers livestock grazing on BLM lands within the
continental United States under the regulations found at 43 CFR 4100.
Statutory authorities supporting these regulations include the
following:
1. The Taylor Grazing Act (TGA) as amended (43 U.S.C. 315, 315a
through 315r);
2. The Federal Land Policy and Management Act (FLPMA) (43 U.S.C.
1701 et seq.) as amended by the Public Rangelands Improvement Act
(PRIA) (43 U.S.C. 1901 et seq.);
3. Section 4 of the Oregon and California Railroad Lands Act (43
U.S.C. 1181d);
4. Executive orders that transfer land acquired under the Bankhead-
Jones Farm Tenant Act (7 U.S.C. 1012) to the Secretary and authorize
administration under TGA; and
5. Public land orders, executive orders and agreements authorizing
the Secretary to administer livestock grazing on specified lands under
TGA or on other lands as specified.
BLM land use plans guide and direct public lands resource
management under the multiple-use mandate of the Federal Land Policy
and Management Act of 1976. Land use plans specify lands that are
available for livestock grazing and the parameters under which grazing
is to occur. BLM issues grazing permits or leases for available grazing
lands. Grazing permits and leases specify the portion of the landscape
BLM authorizes to the permittee or lessee for grazing (i.e., one or
more allotments) and establish the terms and conditions of grazing use.
Terms and conditions include, at a minimum, the number and class of
livestock, when and where they are allowed to graze, and for how long.
Grazing use must conform to any applicable allotment management plans,
the terms and conditions of the permit or lease, land use plan
decisions, and the grazing regulations.
Since the first set of grazing regulations was issued after passage
of the TGA in 1934, they have been periodically amended and updated.
The last major revision effort was called ``Rangeland Reform '94''. In
February 1995, BLM published comprehensive changes to the grazing
regulations and put them into effect in August 1995. Changes made to
the rules in 1995 include the following:
1. Revised the term ``grazing preference'' to mean a priority
position against other applicants for receiving a grazing permit,
rather than a specified amount of public land forage apportioned and
attached to a base property owned or controlled by a permittee or
lessee, and added the term ``permitted use'' to describe forage use
amounts authorized by grazing permits or leases;
2. Removed the requirement that one must be engaged in the
livestock business to qualify for grazing use on public lands;
3. Required applicants for a new or renewed grazing permit to have
a satisfactory record of performance;
4. Provided that BLM could issue a conservation use permit to
authorize permittees not to graze their permitted allotments;
5. Limited authorized temporary nonuse to 3 years;
6. Required grazing fee surcharges for permittees who do not own
the cattle that graze under their permits;
7. Provided that the United States holds 100 percent of the vested
title to permanent range improvements, constructed under cooperative
agreements, rather than proportionately sharing title with the
cooperators;
8. Required livestock operators and the BLM to use cooperative
agreements to authorize new permanent water developments, instead of
allowing some water developments to be authorized under range
improvement permits;
9. Provided that after August 21, 1995, the United States, if
allowed by state water laws, would acquire livestock water rights on
public lands;
10. Authorized BLM to approve non-monetary settlement of non-
willful grazing trespass under certain circumstances;
11. Expanded the list of prohibited acts applicable to grazing
activities;
12. Established Fundamentals of Rangeland Health; and
13. Created a process for developing and applying state or regional
standards for land health and guidelines for livestock grazing as a
yardstick for grazing management performance.
The Public Lands Council sought judicial review with respect to a
number of these provisions. The court upheld all provisions except
conservation use (see 4, above) (Public Lands Council v. Babbitt, 929
F.Supp. 1436 (D. Wyo. 1996), rev'd in part and aff'd in part, 167 F.3d
1287 (10th Cir. 1999), aff'd, 529 U.S. 728 (2000)).
III. Why We Are Proposing This Rule
The current regulations, issued in 1995, require amending to comply
with court decisions, improve working relationships with permittees and
lessees, enhance administrative procedures and business practices, and
promote conservation of public lands.
BLM published an Advance Notice of Proposed Rulemaking (ANPR) and
Notice of Intent (NOI) to Prepare an Environmental Impact Statement
(EIS) in the Federal Register on March 3, 2003, (68 FR 9964-66 and
10030-
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10032). These notices requested public comment and input to assist BLM
with the scoping process for this proposed rule and the EIS. The
comment period on the ANPR and the NOI ended on May 2, 2003.
During the scoping process, BLM held four public meetings to elicit
comments and suggestions for the proposed rule and development of the
draft environmental impact statement. The meetings were held during
March 2003 in Albuquerque, New Mexico; Reno, Nevada; Billings, Montana;
and Washington, DC.
We received approximately 8,300 comments on the ANPR and the NOI.
The majority of these were varying types of form letters. In response
to the ANPR, the majority of commenters opposed allowing livestock
operators to temporarily lock gates on public lands in order to protect
private property in specific limited situations. We have dropped this
proposal from this proposed rule. Many commenters also opposed making
any changes to the 1995 grazing regulations and several questioned why
BLM was proposing amendments to the grazing regulations so soon after
the 1995 changes. Some members of the ranching industry commented that
they supported allowing categorical exclusions for routine activities
during National Environmental Policy Act (NEPA) compliance; however,
this is outside the scope of the rulemaking and is not addressed in
today's proposed rule. Many commenters urged BLM to consider increasing
monitoring efforts on grazing allotments. Some commenters recommended
raising the grazing fees to reflect current market values for
livestock. BLM is not addressing grazing fees in today's proposed rule.
We will distribute the Draft EIS (DEIS) on approximately December
19, 2003. Copies will be available on the Internet at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.blm.gov/grazing
, and at the Department of the Interior Library, C
Street Lobby, 1849 C Street, NW, Washington, DC 20240. Copies of the
DEIS will also be available at BLM State Offices. BLM will publish a
Notice of Availability of the DEIS in a separate publication in the
Federal Register. The DEIS examines the impact of the proposed
regulatory changes and alternatives for improving the management of the
Nation's public rangelands.
This proposed rule would make changes in several sections of BLM's
existing regulations, including revising and creating definitions for
key terms pertinent to the grazing administration program. Such changes
would include modifying the public participation requirements relating
to some day-to-day grazing management matters, and removing provisions
authorizing conservation use permits to comply with a Federal Court
decision.
The 1995 rule greatly expanded the list of situations in which BLM
solicits public comment on pending grazing management decisions. This
has led to BLM focusing scarce staff resources and time primarily on
managing the public participation process, including organizing and
updating mailing lists and handling mailings, rather than on conducting
necessary day-to-day grazing management work such as monitoring
resource conditions. BLM proposes to retain the interested public
consultation requirements for the following specific BLM actions:
1. Apportioning additional forage on BLM managed lands;
2. Development or modification of a grazing activity plan and other
BLM land use plans;
3. Planning of the range development or improvement program; and
4. Reviewing and commenting on grazing management evaluation
reports.
Also retained in the regulations will be the requirement that BLM
provide the interested public with copies of proposed and final grazing
decisions and allow them respectively to protest and appeal such
grazing decisions.
Although this proposed rule would remove the requirement that BLM
consult with the interested public about the following administrative
day-to-day actions, BLM could still consult voluntarily on these
matters before:
1. Adjusting allotment boundaries,
2. Changing grazing preference,
3. Issuing emergency closures,
4. Renewing or issuing a grazing permit or lease,
5. Modifying permits and leases, or
6. Issuing temporary and non-renewable grazing permits.
BLM may also consult with permittees and lessees, state and local
officials, and the interested public on any other matter where the
authorized officer finds that such consultation would facilitate
management of grazing on the public lands.
This change would require consultation with the interested public
where such input would be of the greatest value, such as when deciding
vegetation management objectives in an allotment management plan, or
preparing reports evaluating range conditions. BLM in cooperation with
the grazing operator, would retain the discretion to determine and
implement the most appropriate on-the-ground management actions to
achieve the objectives and/or respond to the conditions. BLM values
productive consultation with the interested public. However, BLM needs
some flexibility in order to take responsive, timely, and efficient
management action without being required to first undertake mandatory
consultation.
We received comments asking BLM to remove the term ``interested
public'' from the regulations and replace the term with ``affected
interests'' as it appeared prior to the 1995 grazing regulation
changes. Commenters stated that the involvement of ``interested
public'' is more appropriate for the broader land use plan process and
that increased participation from the interested public in day-to-day
grazing management matters created more work for BLM and resulted in
substantial program-related backlogs. As discussed above, our proposal
attempts to address these issues through a change to the definition and
modifications in requirements to consult with the interested public.
In order to comply with the 10th Circuit Court of Appeals decision
in Public Lands Council v. Babbitt, 929 F.Supp. 1436 (D. Wyo. 1996),
rev'd in part and aff'd in part, 167 F.3d 1287 (10th Cir. 1999), aff'd,
529 U.S. 728 (2000) the proposed rule would remove language from the
1995 regulations that allowed BLM to issue conservation use permits.
The court ruled that the TGA does not authorize BLM to grant
conservation use permits.
BLM issues grazing permits and leases to authorize livestock
grazing on public lands. In contrast, conservation use permits allowed
a permittee to elect not to graze allotments for the duration of the
permit, which is typically 10 years. The TGA requires BLM to issue a
grazing permit expecting a permittee or lessee to use it to graze
livestock. (167 F.3d at 1307-1308). If the permittee or lessee does not
plan to graze livestock, BLM can cancel the permit and issue one for
that allotment to someone who will use it for its intended purpose.
There are circumstances, however, where it is desirable to allow the
land to be rested from grazing to protect or improve the condition of
resources or to allow relatively short periods of nonuse for the
personal or business needs of the operator.
The Tenth Circuit Court's decision in Public Lands Council v.
Babbitt affects another regulatory provision related to ``not grazing
under a permit.'' BLM can authorize, on an annual basis, permittees and
lessees to graze less than what is provided for in their permit,
including not grazing at all. BLM calls
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this practice ``authorized temporary nonuse'' and can allow it for
purposes of conservation and protection of the public lands, or for
reasons associated with business or personal needs of the permittee.
The current regulation limits authorized temporary nonuse to 3
consecutive years, after which the permittees must graze as much as
they are authorized in their permit or risk losing the unused portion.
The 3 consecutive year temporary nonuse limitation rule was
intended to work in conjunction with the regulation that provided for
conservation use permits. For example, if the permittee wanted
authorized temporary nonuse for more than 3 consecutive years, and BLM
agreed that continuing not to graze the allotment(s) was necessary to
protect or enhance resources, BLM could replace his ``regular'' permit
with a conservation use permit. However, because of the 10th Circuit
Court decision, we no longer have that option, and BLM is limited to
issuing ``regular'' permits only. The current regulations limit
authorized temporary nonuse to 3 consecutive years. Therefore, BLM must
require permit holders to use the grazing permit at the end of the 3
years even if both the permittee and BLM wish to continue the nonuse
for resource stewardship purposes. BLM proposes not to require grazing
use of a permit when both the BLM and permittee agree that temporary
nonuse is needed for resource stewardship reasons. Although we propose
to remove the 3-consecutive-year limitation on authorized nonuse if the
purpose of the nonuse is for resource stewardship reasons, we realize
that some may wish to acquire a permit and not use it indefinitely,
despite the 10th Circuit Court's decision that BLM cannot issue grazing
permits not to graze. Where land use plans provide that an acceptable
use of the public lands is domestic livestock grazing, then BLM will
manage those lands for grazing in accordance with the land use plan.
Failing to ``make substantial grazing use as authorized for two
consecutive fee years'' is prohibited under current grazing
regulations. BLM does not propose to amend this provision in this rule.
BLM may deny nonuse of a permit if the permittee cannot justify that
nonuse is for resource stewardship or personal or business reasons. If
BLM denies nonuse, and the permittee does not graze livestock as
allowed under the permit for two years in a row, the permit or portion
of the permit that is not used is subject to cancellation and would be
available for awarding to another applicant. (These same principles
pertain to leases.) The changes to nonuse provisions that BLM is
proposing today would provide that BLM could authorize nonuse for no
longer than one year at a time, but could repeat such annual
authorizations for more than 3 consecutive years.
We considered many of the substantive issues that were raised
during the scoping period and have incorporated several of these as
alternatives in the draft EIS. We did not address, however, some of the
issues that commenters raised because they are either beyond the scope
of the document, did not meet the basic purposes of these proposed
changes to the regulations, or BLM decided we could better address the
issues through policy.
The following are issues we considered but do not address in this
proposed rule:
[sbull] Increasing grazing fees and restructuring grazing based on
market demand are outside the scope of this proposed rule.
[sbull] Reestablishing BLM grazing advisory boards to provide local
advice and recommendations to BLM on grazing issues is not addressed
because BLM grazing advisory boards were ``sunset'' on December 31,
1985, by FLPMA. This proposed rulemaking, however, would provide that
BLM cooperate with state, county or locally established grazing boards
in reviewing range improvements and allotment management plans on
public lands. This review would supplement the counsel of Resource
Advisory Councils that BLM established in 1995 to advise BLM and
recommend strategies for managing public lands under our multiple-use
mandate.
[sbull] Modifying management of wild horses and burros or making
any changes to The Wild Horse and Burro Act or its implementing
regulations are outside the authority and scope of this proposed rule.
Issues involving allocation of forage are addressed in land use plans.
[sbull] Counting 7 sheep, rather than the current 5, as the
equivalent of one animal unit for the purposes of calculating grazing
fee billings are not addressed because matters involving the grazing
fee are outside the scope of this proposed rule.
[sbull] Establishing and managing Reserve Common Allotments is not
addressed in this proposed rule. In the ANPR, BLM stated that we were
considering proposing provisions to define, establish a regulatory
framework, and otherwise support the creation of Reserve Common
Allotments. BLM has decided not to proceed with developing Reserve
Common Allotments at this time. During BLM's public scoping period many
commenters expressed concern about adding special provisions for
Reserve Common Allotments in the grazing regulations. Many commenters
said they did not think such regulatory provisions were warranted.
Ranching interests indicated they would rather have ``normal''
allotments while environmental interests questioned whether this would
be the best use of the land. After considering the reception to this
concept, BLM determined it was not in the public interest to proceed
with this provision through regulations. BLM will continue to examine
the concept of forage reserves through policy-making processes.
[sbull] Removing the grazing fee surcharge is not addressed in this
proposed rule. The 1995 regulations added a grazing fee surcharge to
address the concerns raised by the General Accounting Office and Office
of the Inspector General regarding the potential for rancher ``windfall
profits'' arising from BLM's practice of allowing for the subleasing of
public land grazing privileges. Some BLM grazing permittees enter
pasturing agreements allowing them to take temporary control of a third
party's livestock and graze them under their permit or lease. The
permittee pays the federal grazing fee and charges the third party an
amount negotiated between them for the forage and care of the
livestock. BLM assesses a fee surcharge in this circumstance that
equals 35 percent of the difference between the current Federal grazing
fee and private grazing land lease rates with one exception. BLM does
not assess the surcharge when the livestock that are grazed under the
permit or lease under a pasturing agreement belong to children of the
permittee or lessee under certain circumstances set out under section
4130.7(f). BLM is not proposing to alter the existing surcharges for
the following reasons:
1. BLM continues to believe that the surcharge is an equitable
manner in which to address the issue of potential windfall profits to
BLM permittees and lessees who choose to enter into pasturing
agreements, and
2. BLM does not want to open issues related to grazing fees at this
time.
[sbull] Assigning burden of proof to the BLM for appeals is not
addressed in this proposed rule. BLM considered including a provision
in the proposed rule requiring the BLM to assume the burden of proof
for all appeals before the Office of Hearings and Appeals. The burden
of proof has been clarified by the Supreme Court to mean the ``burden
of persuasion'' which refers to ``the notion that if evidence is evenly
balanced, the
[[Page 68456]]
party who bears the burden of persuasion must lose.'' (Director, Office
of Workers' Compensation Programs, Department of Labor v. Greenwich
Collieries, 512 U.S. 267, 272 (1994)). Often, the burden of proof had
been confused with the ``burden of production,'' which refers to a
party's obligation to come forward with evidence to support its claim.
The burden of proving a fact remains where it started, but once the
party with this burden establishes a prima facie case, the burden to
produce evidence shifts. The burden of persuasion, on the other hand,
does not shift except in the case of affirmative defenses. Decisions of
the Interior Board of Land Appeals (IBLA) hold that a party appealing a
BLM decision has the burden of showing the error in the agency's
decision. If, for example, the agency denies a permit or lease to a new
grazing applicant, that applicant would be expected to point out the
error in BLM's decision. Because each case must be analyzed on its own
facts, BLM is not proposing to change our regulations to assign the
burden of proof for all appeals.
[sbull] Changing the definition of monitoring and the process for
conducting monitoring is not addressed in this proposed rule. Few
comments directly addressed the definition of ``monitoring'' and those
we did receive did not recommend any substantive changes in the
definition. Therefore we are not proposing changes to the definition of
monitoring. Many comments contained recommendations on how BLM should
conduct monitoring. We received many comments from the livestock
industry, and environmental and conservation groups, asking BLM to
increase monitoring efforts on public lands. BLM considered including
new regulatory language regarding monitoring that would have contained
explicit direction on the development of allotment-specific resource
management objectives and short and long term monitoring programs in
consultation with the permittee or lessee. The current regulations,
however, already allow BLM to develop resource management objectives
and monitoring plans as part of its allotment management plans. As a
result, we determined that establishing monitoring methodologies and
working with permittees and lessees in collecting and interpreting data
and developing monitoring reports are more appropriately handled
through BLM's own policy guidance in Manuals and Handbooks. Therefore,
BLM has decided not to incorporate details on how to monitor in the
proposed rule. We have, however, added a requirement for monitoring in
making determinations on rangeland health.
[sbull] Requiring permittees or lessees to submit an application
for renewal of their permit or lease when their permits or leases
expire is not explicitly addressed in the current regulations nor
incorporated in the proposed regulations. We are especially interested
in public comment on this issue.
[sbull] Adding another opportunity for administrative remedy by
allowing a protesting party to appeal a BLM field office decision to
the BLM State Director was recommended by several commenters during
scoping. Such a provision would allow the BLM State Director to stay a
decision pending further review. BLM determined it was not advisable to
include this provision in the proposed rule. Such authority could cause
the appeals process to become too cumbersome and result in more delays
in the decision-making process.
[sbull] Providing for permittees and lessees to have control of
water developments authorized under a range improvement permit was
recommended by commenters during scoping. The current regulations do
not allow for water developments to be authorized under a range
improvement permit. Other commenters suggested that the rule should
propose that BLM allow the permittee or lessee to enter into a
Memorandum of Understanding with the BLM allowing the improvements to
be used other than by livestock owned or controlled by the permit
holder. BLM does not believe these regulatory changes are necessary and
therefore will not address them in this proposed rule. We believe we
can better address these issues in BLM policy and guidance.
[sbull] Establishing criteria for BLM's use of full force and
effect decision authority was recommended by some commenters during
scoping. BLM believes that full force and effect decisions are fact-
specific, so that it would be impossible to establish criteria to
address each conceivable new decision. We disagree that developing
criteria is necessarily helpful or relevant to the decision to issue a
full force and effect decision to protect resources.
[sbull] Allowing for exchange of use agreements across allotments
was recommended during scoping. Under the existing regulations, an
exchange-of-use situation occurs where the permittee owns or controls
unfenced private lands within the allotment where he grazes or wishes
to graze. The permittee may request to graze additional livestock on
the allotment to reflect the amount of forage on the private land. If
BLM authorizes the additional grazing, all the authorized livestock may
graze anywhere within the allotment, and BLM will not charge grazing
fees for the extra livestock. BLM received comments requesting that BLM
expand this authority to accommodate a transaction called ``trade of
use'' by removing the requirement that private lands in the exchange-
of-use situation be located in the same allotment being permitted for
grazing. This kind of case might arise in the situation where one
permittee or lessee owns or controls unfenced intermingled private
lands that are not within his allotment, but rather, within a second
permittee's allotment.
The first permittee cannot derive economic gain from the grazing
use made on his private lands by the second permittee, unless either--
(1) The first permittee acts to control use of his own land, by
means of fencing or through sale of the land or assignment of the land
lease for a consideration to the second permittee; or
(2) BLM manages the second permittee's grazing on the first
permittee's private land, which BLM currently does not have regulatory
authority to do.
A commenter urged that BLM facilitate the ``trade-of-use'' between
these permittees by collecting a grazing fee from the second permittee
for grazing use of lands owned by the first permittee but located in
the second permittee's allotment, and crediting the fees collected from
the second permittee for these lands to the first permittee's grazing
fee billing. BLM believes that this type of arrangement is best handled
by private arrangement between the permittees, but we encourage
additional comments as to whether BLM should set up a separate process
for such ``trade of use'' arrangements, or act as a broker between
grazers on such transactions affecting private lands, perhaps for a
service charge.
[sbull] Allowing BLM to have unrestricted discretion to determine
circumstances that would warrant non-monetary settlement of a non-
willful grazing trespass was recommended by a commenter during scoping.
The current regulations identify the following four conditions--all of
which must be satisfied before BLM can approve a non-monetary
settlement for non-willful unauthorized livestock use:
1. Evidence that unauthorized use occurred through no fault of the
operator.
2. The forage used was insignificant.
3. Public lands have not been not been damaged.
[[Page 68457]]
4. Non-monetary settlement is in the best interest of the United
States.
We believe this continues to be a reasonable approach, and
therefore BLM has decided not to change this provision.
[sbull] Removing the requirement for Secretarial approval of
amendments to regional standards for healthy rangelands was not
addressed in this proposed rule. BLM received a comment urging that we
revise the process for approving standards for rangeland health to
allow approval of revisions to the standards by BLM State Directors.
BLM believes that the requirement for Secretarial approval of standards
that BLM State Directors develop ensures that the basic components of
rangeland health are reflected in the regionally developed standards.
We are not proposing any changes to the applicable provisions of the
current regulations.
[sbull] Allowing grazing operators, when authorized by BLM, to
temporarily lock gates on public lands when necessary to protect
private property or livestock was initially considered for
incorporation in this proposed rule. Comments during the scoping were
nearly unanimously in opposition to this suggestion. This proposed rule
does not include this provision.
[sbull] Using competitive bidding for assigning permits and leases
in place of the current system for allocating grazing preference,
assigning grazing permits and the present grazing fee formula was
recommended by several commenters. This recommendation would require
legislative action and is therefore beyond the scope of this proposed
rule.
[sbull] Requiring the posting of a bond before filing an appeal was
recommended by several commenters. BLM considered the implications and
potential challenges to such a provision, and determined that such a
provision would burden the general public as well as permittees and
lessees. Therefore, it is not included in the proposed rule.
[sbull] Moving the general requirements in section 4180 related to
the fundamentals of rangeland health and public land health standards
and guidelines to BLM's planning regulations at 43 CFR 1610 was
recommended during scoping. BLM did not consider such an expansion of
the scope of this rulemaking appropriate at this time, and therefore it
is not included in the proposed rule.
Whenever BLM proposes changes to these regulations, we are
continuing a public dialogue. These proposed changes seek to keep
administrative processes as simple, understandable, and flexible as
possible.
When we developed proposed changes to the grazing regulations, we
considered whether each specific change facilitates any of the
following:
1. Promoting cooperation, especially with directly affected
permittees and landowners;
2. Promoting practical mechanisms for protecting rangeland health;
and
3. Improving administrative efficiency.
By incorporating these criteria, BLM can improve the regulations
while creating a climate for communication and cooperation. Working
together, BLM, and the public we serve, can obtain better information
about observed trends in the vegetative communities of the West. BLM
can improve some of the administrative processes so that we can sharpen
our focus on the issues that are truly in need of attention as we seek
to conserve the rural landscapes of the West.
IV. Section-by-Section Analysis
Rules of Construction: Words and Phrases
For simplicity and to make the rule easier to read and understand
we use words that signify the singular to include and apply to the
plural and vice versa as provided in 43 CFR 1810.1. Words that signify
the masculine gender also include the feminine. Words used in the
present tense also apply to the future. The terms ``BLM'' and
``authorized officer'' are used interchangeably and include any person
authorized by law or by lawful delegation of authority to perform the
duties described in this proposed rule.
Section 4100.0-2 Objectives
The proposed rule would remove reference to 43 CFR part 1720,
subpart 1725, to reflect changes made to the regulations in 1994 (59
F.R. 29206). Today's proposal acknowledges that the Public Rangelands
Improvement Act (PRIA) contributes to the objectives of the
regulations. These are technical and editorial corrections.
Section 4100.0-3 Authority
The proposed rule would make 3 editorial corrections to this
section. These are non-substantive and would not change the existing
regulations.
Section 4100.0-5 Definitions
During the scoping period, BLM received public comments addressing
specific definitions. Several commenters asked BLM to keep all current
terms consistent with their use, definition, and intent in the TGA. The
following describes the proposed changes in definitions and the
rationale for each change.
Active use: BLM proposes amending this definition to make clear
that the term refers to a forage amount based on the carrying capacity
of, and resource conditions in, an allotment. The term does not refer
to forage that had been allocated in the past but which BLM has
determined is no longer present. We now consider such forage to be in
suspension, not in active use. The current definition of ``active use''
includes ``current authorized use including livestock grazing and
conservation use.'' BLM must remove conservation use from the
definition because of the 1999 10th Circuit Court decision in Public
Lands Council v. Babbitt.
The 1995 final rules defined conservation use as ``authorized
active use,'' in contrast to ``nonuse'' and ``suspended use'' even
though the term conservation use did, by definition, exclude livestock
grazing. The 1995 definition used the term livestock grazing to
distinguish between ``active'' authorized grazing use and ``active''
authorized conservation use. Removing conservation use from this
definition eliminates the need for this distinction. We propose that
the amended definition of active use refer to that portion of grazing
preference (see proposed definition, this section) that is now
available for livestock grazing use based on the known livestock
carrying capacity of the rangeland and the resource conditions in an
allotment under a permit or lease. The definition would make it plain
that ``suspended use'' is not active use.
Conservation use: The proposed rule would remove the term
conservation use, from the definition of ``active use,'' and anywhere
else it appears in the existing regulations, in keeping with the 10th
Circuit Court decision discussed above. Removing the term conservation
use includes revising the definitions of grazing lease and grazing
permit to remove all references to conservation use.
Grazing lease: In addition to removing conservation use, BLM
proposes editorial changes to this definition to make it easier to
read. These changes will not substantively change the current
regulations. Several commenters stated that the original meaning of
``grazing lease'' comes from the TGA and has been subsequently changed
and therefore, BLM should restore it. The definition is consistent with
the TGA. We intend only to make it clear that BLM issues grazing leases
to authorize grazing on lands that are not within grazing districts
established under the
[[Page 68458]]
TGA, and that these leases include both mandatory terms and conditions
(livestock number, place of use, period of use, and amount of forage
removal), and other terms and conditions of grazing use.
Grazing permit: In addition to removing conservation use, BLM
proposes editorial changes in this definition to make the section
easier to read. BLM intends to make it clear that BLM issues grazing
permits authorizing grazing within grazing districts established under
the TGA. These permits include both mandatory terms and conditions
(livestock number, place of use, period of use and amount of forage
removal), and other terms and conditions of grazing use. Several
environmental and conservation advocacy groups said this term was
adequately addressed in the last rulemaking effort and they do not
think BLM is justified in changing it now. As with the term ``grazing
lease,'' this change is only to clarify and standardize, not
substantively change, this definition. We are not making substantive
changes to this definition other than removing the term conservation
use.
Grazing preference or preference: BLM is proposing to define
``grazing preference'' or ``preference'' as: ``the total number of
animal unit months (AUMs) on public lands apportioned and attached to
base property owned or controlled by a permittee, lessee, or an
applicant for a permit or lease. Grazing preference includes active use
and use held in suspension. Grazing preference holders have a superior
or priority position against others for the purpose of receiving a
grazing permit or lease.''
This definition is similar to the definition in the grazing
regulations in 1978, which was used until the 1995 rule changes. The
1995 definition, which changed preference from a term having a
quantitative meaning (number of AUMs) to a qualitative meaning
(superior position), has proven to be confusing. We believe that
returning to its long standing meaning will provide greater clarity
throughout the regulations.
The concept of grazing preference, as we would define it in this
rulemaking, includes two elements:
1. Livestock forage allocation on public lands.
2. Priority for receipt of that allocation, as determined through
ownership or control of attached base property.
BLM is proposing to define grazing preference as the total number
of AUMs within a grazing allotment that BLM has allocated for livestock
use. This forage amount would include ``active use,'' use that is
currently available, and ``suspended use,'' that is, use that had been
allocated and used by the permittee or lessee, or a predecessor, but
that currently is not available and therefore the subject of a BLM
suspension. These apportioned forage amounts would be attached to base
property. Base property, in turn, is land or water owned or controlled
by a permittee, lessee, or party who holds or has applied for a permit
or lease.
Ownership or control of base property gives the owner or person
controlling the property a preference for receiving a grazing permit or
lease authorizing grazing use to the extent of the active preference
already ``attached'' to that property, and priority for receipt of
forage that BLM may later determine to be available for livestock
grazing to the extent of any suspended preference that may be attached
to that property. Attaching or associating a public land forage
allocation to or with base property provides a reliable and predictable
way to connect ranch property transactions with the priority for use of
the public land grazing privileges that BLM associates with that
property. This has been the basis for BLM's system of tracking who has
priority for receipt of public land grazing privileges since the
enactment of the TGA.
The ranch property transaction alone, however, does not provide
absolute assurance of receiving the privileges, for two reasons:
(1) TGA provides that only certain parties qualify for grazing use
on public lands. Therefore, if an unqualified party acquires a base
property, BLM would not issue the party a term grazing permit or lease,
regardless of the preference for public land grazing use associated
with the base property that the party acquired; and
(2) The forage amount available for livestock grazing use on public
lands can fluctuate because of changed resource conditions or changed
administrative or management circumstances. When necessary, BLM may
adjust the amount of forage available for livestock grazing. Case law
has determined that BLM land use planning decisions may adjust
livestock forage allocations made before enactment of the Federal Land
Policy and Management Act of 1976 to change grazing use to meet
objectives specified in land use plans (see, for example, Public Lands
Council v. Babbitt, 529 U.S. 728, 739-744 (2000)).
The 1978 definition of ``grazing preference'' was crafted to meet a
specific need. Pre-FLPMA public land livestock forage allocations were
linked to base property productivity. This means that among applicants
competing for grazing privileges on public lands BLM would not grant
privileges to support livestock in excess of the number that they could
support on their base property during the time that their livestock
were not allowed on public lands. The connection between this base
property productivity, called ``commensurability,'' and the amount of
grazing privileges granted on public lands was severed by the 1978
regulation change (the same change that defined, for the first time,
the term ``grazing preference''). The 1978 rule provided that BLM would
associate public land grazing privileges with private base properties
on a pro-rata acreage basis, rather than on base property productivity.
This change simplified BLM's record-keeping needs. However, the
commensurability requirement served as a guidepost for fair and
consistent allocation of available forage. To ensure that the record of
allocation was preserved, BLM defined the term ``grazing preference.''
Attaching Federal grazing privileges to base properties has been and
continues to be the foundation for adjudicating these privileges. BLM
has always had the authority and discretion to adjust grazing levels on
public lands. The proposed change will once again associate the term
``preference'' with an amount of allocated forage on public land.
Today's proposed change would ensure that the term ``preference''
is used consistently. For example, 43 CFR 4110.2-3 (4) states,
regarding the transfer of preference, that ``The transferee shall file
an application for a grazing permit or lease to the extent of the
transferred preference * * *'' although preference is defined in the
same regulations as a ``priority position,'' that is, a singular
quality. One either has a priority position or one does not. It is not
possible to define the ``extent'' of a ``priority position'' in terms
of anything but a level or amount, and in the context of the remainder
of the rule, that would mean a level or amount of forage.
Another inconsistency arises if one considers the circumstance of a
parcel of base property owned by one party, giving that party a
priority position (preference), which is subdivided and half sold to
another party. Then, the single ``preference'' accorded the sole owner
now is split into two ``preferences'' because the second party now is
accorded preference due to its ownership of base property. The proposed
change to this definition and
[[Page 68459]]
its usage throughout the rule should provide a consistent framework for
the efficient administration of the public rangelands.
Interested public: BLM proposes amending the present definition to
mean an individual, group, or organization that has:
1. Submitted a written request to BLM to be provided an opportunity
to be involved in the process leading to a BLM decision on the
management of livestock grazing on public lands, and
2. Followed up that request by commenting on or otherwise
participating in the decision-making process as to the management of a
specific allotment if there has been an opportunity for such
participation, or
3. Submitted written comments to the authorized officer regarding
the management of livestock grazing on a specific allotment, as part of
the process leading to a BLM decision on the management of livestock
grazing on the allotment.
Permitted Use: BLM proposes removing the definition of ``permitted
use'' and replacing this term wherever it occurs in the regulations
with either ``grazing preference'' or ``preference,'' or ``active use''
depending on the regulatory context. ``Permitted use'' was introduced
as a term in the 1995 regulations change to define an amount of forage
allocated by a land use plan for livestock grazing in an allotment. It
is expressed in AUMs and includes ``active use'' (which was further
divided into ``livestock use'' and conservation use) and ``suspended
use.'' As discussed above, BLM is proposing to return to using the term
``grazing preference'' or ``preference'' to refer to that same
livestock forage allocation. Therefore, there is no need for the term
``permitted use.'' Grazing preference would have two components:
1. ``Active use,'' or use currently available on a sustained yield
basis, and
2. ``Suspended use,'' or use that had been allocated and available
for livestock grazing at some point in the past, but is now in
suspension until BLM determines that an increased amount of forage is
available on a sustained yield basis for allocation to livestock
grazing.
Although the connection between land use plans and grazing
preference would not be stated in the definition of ``grazing
preference'' or ``preference'' as it is being proposed today, the
regulatory text would reflect the relationship between ``active use''
and land use plans at Sec. Sec. 4110.2-2, 4110.3(a)(3), and 4110.3-1
and between grazing permits and leases and land use plans at Sec.
4130.2.
Suspension: BLM proposes to remove the word ``temporary'' from the
current definition because the word is superfluous. The status of
suspended preference is not affected.
Temporary nonuse: BLM proposes making it clear that ``temporary
nonuse'' would mean that portion of active use that BLM allows a
permittee or lessee not to use. The permittee or lessee must apply for
temporary nonuse.
Subpart 4110--Qualifications and Preference
Section 4110.1 Mandatory Qualifications
We revised this section by moving parts of paragraph (b) and all of
paragraph (c), which relate to procedure as opposed to qualifications,
to section 4130 and redesignating paragraph (d) as paragraph (c).
Section 4110.2-1 Base Property
The proposed rule makes editorial changes to this section.
Section 4110.2-2 Specifying Grazing Preference
BLM proposes removing the term ``permitted use'' wherever it occurs
in this section and replacing it with the term ``grazing preference''
or ``preference'' for the reasons previously explained. BLM does not
establish a grazing preference in designated ephemeral or annual
rangelands because the forage production on these lands can vary
greatly from year to year. On these rangelands, BLM bases the
authorized forage removal amount on the availability of forage in that
year. As stated earlier, BLM also proposes that grazing preference
would include active use and any suspended use.
Section 4110.2-3 Transfer of Grazing Preference
The proposed rule would make editorial changes to this section to
conform the rule to the definition of ``grazing preference.''
Section 4110.2-4 Allotments
BLM proposes to remove the requirement that BLM consult with the
interested public before making an allotment boundary adjustment
because it is primarily an administrative matter that we implement by
decision or agreement following a NEPA analysis of the action. BLM
would provide the interested public an opportunity to comment on the
action as part of the NEPA process. The interested public would also
receive a copy of the proposed and final decisions, including those on
allotment boundary adjustments, and would be able to protest and appeal
such decisions. This change would contribute to administrative
efficiency as discussed above under changes to section 4100.0-5,
Definitions.
Section 4110.3 Changes in Grazing Preference
BLM proposes to remove the term ``permitted use'' wherever it
occurs in this section and replace it with the term ``grazing
preference'' for the reasons explained previously. BLM also proposes to
simplify this section by dividing the existing text into two paragraphs
and adding a third paragraph to clarify that our NEPA documentation
addressing changes in grazing preference would include our
consideration of the effects of changes in grazing preference on
relevant social, economic, and cultural factors.
Generally, BLM managers routinely consider the possible effects of
their decisions on these factors through the NEPA process. Public
officials use the NEPA process to understand the environmental
consequences of potential decisions affecting the human environment.
NEPA (42 U.S.C. 4321 et seq.) requires Federal agencies to utilize a
systematic, interdisciplinary approach to ensure the integrated use of
the natural and social sciences and the environmental design arts in
planning and in decision-making. In the proposed rule, BLM would
analyze and, if appropriate, document the relevant social, economic and
cultural effects of the proposed action. BLM is proposing the change to
ensure that our managers document their consideration of relevant
social, economic, and cultural factors when they comply with NEPA.
Section 4110.3-1 Increasing Active Use
In the 1995 rule, section 4110.3-1 addressed ``permitted use.''
This proposed amendment addresses that portion of the livestock forage
allocation that is ``active use'' as explained in the discussion of its
definition. This change is necessary to link the proposed definitions
of ``preference'' and ``suspended use.'' BLM proposes to remove the
term ``permitted use'' from this section wherever it appears and
replace it with the term ``active use'' for the reasons explained
previously.
Because the regulation would affect how we regulate available
forage, we are asking the public to comment on whether BLM should use
the term ``available forage'' instead of ``active use.''
BLM is also asking for specific comments relating to this section
to help determine whether there have been
[[Page 68460]]
situations in which the ability of permittees or lessees to obtain
loans was adversely affected by having some of their forage allocation
suspended.
BLM also proposes to reorganize this section to describe how we
would authorize increased grazing use when additional forage is
available either temporarily, or on a sustained yield basis. BLM
proposes to add two new paragraphs, (a) and (b), that would clarify who
gets priority when we grant additional grazing use because livestock
forage has become available on either a nonrenewable basis or a
sustained yield basis. This change would clarify existing language and
does not substantially depart from the requirements of the existing
regulations.
Section 4110.3-2 Decreasing Active Use
BLM proposes replacing the term ``permitted use'' with the term
``active use'' wherever it occurs in this section. BLM is proposing to
clarify this section by amending paragraph (a) to provide that BLM will
document its observations that support the need for temporary
suspension of active use and by amending paragraph (b) to provide that
BLM will place any reductions in active use made under this paragraph
into suspension rather than require a permanent reduction. BLM wants to
ensure that it clearly documents the justification for the suspension
and believes that it is important to maintain a complete record of
forage allocation actions so that it may fairly remove suspensions upon
future range recovery.
Section 4110.3-3 Implementing Changes in Active Use
BLM proposes changing the title of this section to reflect that it
pertains to both increases and decreases grazing use and to add
language to this section to modify how BLM would implement changes in
active use. This section would provide that BLM would phase in changes
in active use of more than 10 per cent over a 5-year period unless
either the affected permittee or lessee agrees to a shorter period or
the changes must be made before the end of 5 years to comply with
applicable law. When possible, the 5-year phase-in period for changes
in active use would provide time for gradual operational adjustments by
grazing permittees or lessees to lessen sudden adverse economic impacts
that may arise from a reduction, or to allow time to build their herd
in the event of an increase. The phase-in period also allows for
ongoing monitoring in order to determine whether the initial decision
needs to be adjusted. This 5-year phase in period is similar to that
specified by the regulations in effect before 1995.
BLM also proposes amending paragraphs (a) and (b) by removing the
phrase ``the interested public'' from this section. Any change in
active use would be preceded by reports, including NEPA documents, that
analyze data that BLM would use to support the change. Under section
4130.3-1, BLM would provide the interested public the opportunity to
comment on these reports. Under section 4160.1 BLM would provide a copy
of the proposed and final grazing decisions to implement the change to
the interested public. BLM will provide the interested public full
opportunity for participation and comment on the action prior to actual
implementation. For this reason additional consultation with the
interested public regarding the actual scheduling of the change is
redundant.
Section 4110.4-2 Decrease in Land Acreage
BLM proposes removing the term ``permitted use'' from this section
and replacing it with the term ``grazing preference'' for the reasons
explained previously.
Subpart 4120--Grazing Management
Section 4120.2 Allotment Management Plans and Resource Activity Plans
BLM proposes to revise paragraph (c) for clarity only.
4120.3 Range Improvements
4120.3-1 Conditions for Range Improvements
BLM proposes to revise paragraph (f) for clarity and to correct a
citation to NEPA. The change is not substantive.
4120.3-2 Cooperative Range Improvement Agreements
BLM proposes to revise paragraph (b) to provide that, subject to
valid existing rights, cooperators and the United States would share
title to permanent structural range improvements constructed under
cooperative range improvement agreements on public lands. Such
structural improvements include wells, pipelines, or fences constructed
on BLM managed public lands. BLM is proposing to revise the regulations
to allow contributors to share title to range improvements of public
lands proportionate to the value of their contributed labor, material,
or equipment to make on-the-ground structural improvements, subject to
valid existing rights. This would return the provision on how title for
improvements constructed under Cooperative Range Improvement Agreements
is shared to that in place before 1995.
During scoping, BLM received comments supporting and opposing the
revision. Some opponents to the revision commented that, by re-
instituting shared title to range improvements, BLM would be allowing
private property rights on public lands. Some commenters supported the
provision, stating that it gives livestock operators, who pay for and
construct improvements, incentive to invest funds, time, and effort in
their allotments.
The current regulations provide that the United States has title to
new permanent structural range improvements. BLM has the discretion in
administrating the public rangelands to determine where title to range
improvements should lie. Sharing title among cooperators and the United
States provides the opportunity to maintain some asset value for
investments made, thereby encouraging and facilitating private
investment in range improvements. Granting title to a structural
improvement on public lands does not grant title to the underlying
lands. Cooperative Range Improvement Agreements will continue to
include provisions that protect the interests of the United States in
its lands and resources and ensure BLM's management flexibility on
public lands.
Section 4120.3-3 Range Improvement Permits
BLM must remove the term conservation use from this section to
comply with the decision of the Tenth Circuit Court of Appeals.
Section 4120.3-8 Range Improvement Fund
BLM is proposing to amend this section only to correct a
misspelling.
Section 4120.3-9 Water Rights for the Purpose of Livestock Grazing
BLM proposes to amend this section by removing the reference date
in the first sentence and the second sentence in total. This would
remove the requirement that livestock water rights be acquired,
perfected, maintained and administered in the name of the United States
to the extent allowed by the laws of the states where the rights would
be acquired. The proposed amendment would provide BLM greater
flexibility in negotiating arrangements, within the scope of state
processes, for construction of watering facilities in states where the
United States is allowed to hold a livestock water right. In those
states, BLM would continue to have the option of acquiring the water
[[Page 68461]]
right as long as we do so in compliance with state water law.
Section 4120.5-2 Cooperation with State, County, and Federal Agencies
BLM proposes amending this section by making an editorial
correction and adding a new paragraph (c) to specify that BLM would add
state, local, and county-established grazing boards to those groups we
routinely cooperate with in administering laws and regulations relating
to livestock, livestock diseases, and sanitation. Currently BLM's
Resource Advisory Councils provide advice to BLM on the broad range of
multiple use activities on public lands including grazing management.
Field-level range improvement and allotment management planning
programs would also benefit from the additional perspective that
locally established grazing advisory boards could provide.
Many states have state, county, or locally established grazing
advisory boards whose function is to provide guidance on range
improvements on public lands. Section 401(b)(1) of FLPMA states that a
portion of the grazing fees BLM collects are set aside for range
betterment. BLM is authorized to use one-half the amount collected from
the area in which the moneys were derived. BLM may direct these funds
after consulting with local area user representatives, to implement on-
the-ground range rehabilitation, protection, and improvements on the
lands.
Grazing interests and state and local governments expressed concern
that BLM has not used state, county, and locally established grazing
advisory boards effectively. They commented that these grazing advisory
boards are underutilized, yet are a valuable tool for gathering local
input for BLM's decision-making processes related to range improvements
and allotment management planning. This proposed rule would require BLM
to cooperate with state, county, or locally established grazing
advisory boards when reviewing range improvements and allotment
management plans on public lands. A requirement for BLM to cooperate
with such boards would ensure a consistent community-based decision-
making process throughout the BLM.
Subpart 4130--Authorizing Grazing Use
Section 4130.1-1 Filing Applications
The existing regulations are somewhat unclear as to the
circumstances under which BLM will consider an applicant for a new
permit or lease not to have a satisfactory record of performance.
The existing regulations state that we deem applicants for renewals
of permits and leases not to have a satisfactory record of performance
if:
1. They have had a Federal lease canceled within the previous 36
months;
2. They have had a state lease canceled, for lands in the grazing
district where they are seeking a Federal permit, within the previous
36 months, or
3. They have been legally barred from holding a grazing permit or
lease.
Under the proposed regulations BLM would limit the number of
possible infractions that we would take into account for determining
whether an applicant for a new permit has a satisfactory record of
performance. The proposed rule would deem applicants for issuance of a
new permit or lease to have a satisfactory record of performance if:
1. The applicant or affiliate has not had a Federal lease canceled
within the previous 36 months;
2. The applicant or affiliate has not had a state lease canceled,
for lands in the grazing district where they are seeking a Federal
permit, within the previous 36 months, or
3. The applicant or affiliate has not been legally barred from
holding a federal grazing permit or lease by a court of competent
jurisdiction.
In addition, BLM proposes moving provisions specifying what we
consider to be ``satisfactory performance'' by an applicant for a
permit or lease from section 4110.1 to this section to better organize
the regulations.
Section 4130.2 Grazing Permits or Leases
BLM proposes revising this section to make it clear that the
grazing permit or lease is the document BLM uses to authorize grazing
use for those who hold grazing preference on BLM-managed lands. BLM has
been questioned about what we consider to be the fundamental document
authorizing preference holders' grazing use. This section makes it
clear that it is the permit or lease that authorizes such grazing use
and no other document. An example of such a non-authorizing document is
a paid grazing fee billing. Although not paying a fee when it is due is
a prohibited act, the document upon which BLM bases fees, either a
permit or lease, is the document that authorizes the grazing use, not
the billing. BLM also uses ``other grazing authorizations'' such as
free use permits, exchange-of-use permits, and crossing permits to
authorize grazing for preference and non-preference holders in limited
circumstances. These are addressed in Sec. Sec. 4130.5 and 4130.6.
We propose removing the phrase ``types and levels of use
authorized'' from paragraph (a) and replacing it with the term
``grazing preference'' because the level of use, the forage amount
expressed in AUMs, and the ``type'' of use, whether active or
suspended, are embodied in the term ``grazing preference.''
We also propose removing the requirement in paragraph (b) that BLM
would consult, cooperate, and coordinate with the interested public
prior to the issuance or renewal of grazing permits and leases because
this consultation is redundant to consultation that already would have
occurred as part of the process of completing NEPA analysis and other
documentation that is pre-requisite to permit or lease issuance or
renewal.
Section 4130.3 Terms and Conditions
BLM proposes adding a new paragraph to this section to specify that
when BLM offers a permit or lease, the terms and conditions may be
protested and appealed unless the terms and conditions are not subject
to OHA appeals (e.g. terms and conditions mandated by a biological
opinion issued under the Endangered Species Act) or terms and
conditions that are part of a permit or lease offered for grazing use
on additional land acreage (see 4110.1). The proposed rule further
states that if those terms and conditions are stayed, BLM could
authorize grazing use in accordance with section 4160.4. By adding this
language, BLM seeks to clarify that we are providing the opportunity to
protest and appeal decisions that specify the terms and conditions of
the permit or lease we are offering.
Section 4130.3-2 Other Terms and Conditions
BLM proposes removing paragraph (h) from this section because it is
unnecessary. There is no need to disclose on the permit or lease the
requirement that the permittee or lessee provide administrative access
to BLM. The absence of such disclosure under the proposed rule would
not affect the underlying requirement. In 1999 IBLA held that
administrative access is an implied condition of a grazing permit
whenever administrative access is necessary in order for BLM to carry
out its statutory responsibilities on the public lands. (IBLA 98-180R;
98-404R)
[[Page 68462]]
Section 4130.3-3 Modifications of Permits or Leases
BLM proposes to amend this section to make it clear that BLM may
modify terms and conditions of a permit or lease if we determine that
either the active use or related management practice is no longer
meeting the management objectives specified in the land use plan, an
allotment management plan, or an applicable decision issued under
section 4160.3. In addition, BLM is removing the regulatory requirement
that we consult with the interested public on any decisions to modify
terms and conditions on a permit or lease for the reasons discussed
previously.
In the proposed rule the interested public retains, to the extent
practical, the opportunity to review and provide input on reports
supporting BLM's decisions to increase or decrease grazing use. In
clarifying this provision, BLM recognizes that the interested public,
permittees and lessees, and the state should all have opportunity to
review and submit input to Biological Assessments when they are used to
supplement grazing management evaluations.
BLM also proposes to reorganize this section for the sake of
clarity and logical flow.
Section 4130.4 Authorization of Temporary Changes in Grazing Use Within
the Terms and Conditions of Permits and Leases
BLM is proposing to amend section 4130.4 to provide additional
detail on what is meant by the phrase ``within the terms and conditions
of the permit or lease.'' BLM proposes that when we refer to
``temporary changes within the terms and conditions of the permit or
lease,'' we mean changes to the number of livestock and period of use
that BLM may grant in any one grazing year. We would authorize such
changes in response to annual variations in growing conditions that
arise from normal year-to-year fluctuations in temperature and the
timing and amounts of precipitation and to meet locally established
range readiness criteria. Under the proposed regulations, ``within the
terms and conditions of a permit or lease'' means that grazing use
will:
1. Not result in removing more forage than the ``active use''
specified by the permit or lease;
2. Begin no earlier than 14 days before the grazing begin date
specified by the permit or lease, and end no later than 14 days after
the grazing end date specified by the permit or lease.
Providing for temporary changes allows sufficient flexibility to
BLM land managers, permittees, and lessees to address seasonal and
annual changes, thereby supporting efficient and responsive management
of public rangelands.
Livestock periods of use established by the grazing permits are
based on the anticipated average dates that the range is ``ready'' to
be grazed. ``Range readiness'' is the stage of plant growth at which
grazing may begin without doing permanent damage to the vegetation
community or the soil. The point where the range is ``ready'' for
grazing use can and does vary from year to year around a long-term
average date of readiness. A 14-day flexibility period on either side
of the grazing begin and end dates specified by the permit or lease is
a reasonable way to allow for minor adjustments in grazing use in
response to these variations to better correspond grazing use to
rangeland conditions. BLM would consider applications for changes in
grazing use ``within the terms and conditions of the permit or lease''
on a case-by-case basis. If BLM approves the change, no formal action
other than the issuance and payment of a relevant grazing fee billing
would be required. The change would not constitute a formal permit or
lease modification. In other words, a temporary change that BLM allowed
in one year to respond to the conditions of that year would not be
carried forward to the next year. BLM would not consider an application
for grazing use that falls outside of this flexibility ``within the
terms and conditions'' of the authorizing permit or lease.
BLM proposes to move provisions addressing approval of ``temporary
nonuse'' from section 4130.2 to this section and amend them to allow
BLM to have the discretion to approve applications on a year-to-year
basis for temporary nonuse of all or part of the grazing use authorized
by a permit or lease when the nonuse is warranted by rangeland
conditions or the personal or business needs of the permittee or
lessee. Events such as drought, fire or less than average forage growth
typically result in ``rangeland conditions'' that will prompt the need
for temporary nonuse of all or part of the grazing use allowed by the
permit or lease.
When rangeland conditions are such that less grazing use would be
appropriate, BLM encourages operators, if they have not done so
already, to apply for nonuse for ``conservation and protection of
rangeland resources.'' This is the simplest way to achieve temporary
reduced use to respond to rangeland condition needs. In some cases,
approval of an application for temporary nonuse precludes the need for
BLM to issue a decision to temporarily suspend use under section
4110.3-3(b), although BLM retains the discretion to do this. ``Personal
and business needs'' of the grazing operator refer to actions operators
take in the course of managing their business, such as livestock sale,
that result in temporary herd size reductions.
Paragraph (e) of this section (paragraph 4130.2(h) in the existing
regulations, as revised for clarity) would continue BLM's current
discretion to issue a nonrenewable authorization to other qualified
applicants to use the forage that became temporarily available as a
result of nonuse approved for business or personal reasons. When BLM
approves nonuse because we agree that rangeland conditions would
benefit from temporary nonuse, we would not authorize another operator
to use it. We propose moving the current paragraph (a) to the end of
this section and redesignating it as paragraph (f). In newly designated
paragraph (f), BLM makes several editorial changes.
BLM also proposes to remove the current three-consecutive-year
limit on temporary nonuse. In the ANPR we stated that we would be
considering increasing the number of consecutive years that we could
authorize temporary nonuse from 3 years to 5 years. In response, BLM
received numerous comments on this topic. Some commenters appeared to
be confused about this provision as presented in the ANPR because they
did not distinguish between the permittee-initiated action of applying
for nonuse in proposed section 4130.3 and a BLM initiated action to
change preference in proposed section 4110.3. Other commenters asked
BLM to allow longer periods of temporary nonuse, and some expressed
concerns that extending the authorized nonuse could have impacts on a
permittee's ability to retain water rights. We are proposing that BLM
have the same discretion to approve temporary nonuse as existed before
the 1995 rule changes, to provide us with management flexibility needed
to respond to the common occurrence of site-specific fluctuations in
available forage levels that may occur for a variety of reasons as
explained above.
Section 4130.5 Free-Use Grazing Permits
The proposed rule would remove reference to conservation use in
paragraph (b)(1) of this section to conform the regulation to the
decision of the Tenth Circuit Court of Appeals. We also propose to
remove the word ``authorize'' to keep the rule internally consistent.
[[Page 68463]]
Section 4130.6-2 Nonrenewable Grazing Permits and Leases
The proposed changes to this section would remove the requirement
that BLM consult with the interested public before issuing nonrenewable
permits and leases. BLM issues nonrenewable permits and leases to allow
grazing use of additional forage that is temporarily available. One
circumstance under which we would apply this is when BLM has approved
an application for nonuse for personal or business reasons as described
above. Another circumstance where this regulation might apply is to
manage grazing use authorized on ``cheatgrass'' ranges.
Cheatgrass (Bromus tectorum), a nonnative introduced annual, is
established on vast acreages in the intermountain west. Its growth
characteristics are such that under favorable growing conditions,
ranges dominated by cheatgrass may produce 5 times or more forage than
what that same range produces in a year experiencing average growing
conditions. Its value as forage, however, is limited (hence the common
name) because its nutritional value diminishes rapidly by summer, when
it dries and becomes highly flammable. Grazing permits issued for use
of ``cheatgrass range'' specify stocking rates on the number of
livestock that can be supported in the ``average'' growth year, and
provide generally that we allow use during the spring, when the
cheatgrass can meet livestock nutritional needs. When the growth year
is favorable, cheatgrass range provides more forage, and in some cases
considerably more forage, than that which is allowed to be grazed under
the term grazing permit. When this occurs, BLM must be able to respond
rapidly to applications for temporary and nonrenewable grazing use
because forage quality declines rapidly as the season progresses.
Because BLM provides full opportunity for the interested public to
comment during the NEPA and planning processes, and because
consultation can be a time-consuming process, not generally conducive
to the ``rapid response'' needed to take advantage of situations that
would give rise to approval of an application for temporary and
nonrenewable use, BLM is proposing to remove the additional public
consultation requirement before issuing temporary and nonrenewable
grazing permits or leases.
Section 4130.8-1 Payment of Fees
BLM is proposing editorial changes to this section to make it
easier to read and corrects a cross-reference in the existing
regulations in paragraph (f) (paragraph (h) in the proposed rule) to
subpart 4160.
Section 4130.8-3 Service Charge
The proposed rule would remove the reference to conservation use in
this section to conform to the Tenth Circuit decision.
BLM is authorized under FLPMA to assess a service charge that
reflects our processing costs. The current regulations provide for
periodic fee adjustments as costs change. BLM has not adjusted our
service charges in many years. When BLM does make changes, the current
regulations require public notification in the Federal Register.
Except when BLM initiates an action, we are proposing to increase
service charge fees as shown in the following table:
------------------------------------------------------------------------
Current Proposed
Action service service
charge charge
------------------------------------------------------------------------
Issue Crossing Permit............................... $10 $75
Grazing Preference Transfer......................... 10 145
Canceling and replacing grazing fee billing......... 10 50
------------------------------------------------------------------------
As required by Section 304(b) of FLPMA, the service fees on this
chart represent BLM's average cost of processing these applications
less the estimated portion of the cost incurred for the benefit of the
general public interest rather than for the exclusive benefit of the
applicant.
Subpart 4140--Prohibited Acts
The current regulations specify a number of prohibited acts. Some
of the prohibited acts apply only to grazing permittees or lessees
while others apply to anyone who commits those acts while on BLM lands.
There are 3 different categories of prohibited acts in the current
regulations.
The first category of prohibited acts is set forth in section
4140.1(a) which provides that permittees and lessees who perform any of
the 6 prohibited acts listed under this section may be subject to civil
penalties under Sec. 4170.1 (e.g., withholding issuance, suspending,
or canceling a permit or lease.) Examples of prohibited acts in this
category include: violations of special terms and conditions of permits
or leases and refusing to remove range improvements when BLM directs
their removal. In this category, BLM is proposing to clarify the
provision which prohibits the placement of supplemental feed on public
lands without authorization. Under the proposed regulation, we are
proposing to add that placement of supplemental feed without
authorization ``or contrary to the terms and conditions of the permit
or lease'' is a prohibited act. This will further clarify the intent of
this section to ensure strict compliance with the terms and conditions
of the permit or lease.
A second category of prohibited acts is set forth in section
4140.1(b). Any person (not just a permittee or lessee) who performs one
of the 11 prohibited acts in this section is subject to civil and
criminal penalties under sections 4170.1 and 4170.2. Examples of the
prohibited acts identified in this section include: allowing livestock
or other privately owned or controlled animals to graze on or be driven
across public lands without a permit or lease; destroying vegetation;
and damaging property owned by the United States. BLM is proposing to
clarify that a violation of any of the prohibited acts set forth in
Sec. 4140.1(b) must occur on BLM-administered lands to be considered a
violation. BLM is also proposing to modify and clarify one of the
prohibited acts in this section. The current rule at Sec.
4140.1(b)(1)(i) states that it is a prohibited act to graze livestock
without a permit or lease and ``an annual grazing authorization.'' This
paragraph would be revised to state that it is a prohibited act to
graze without a permit or lease or other grazing use authorization and
``timely payment of grazing fees.'' This revision would more accurately
characterize the relationship between the document that authorizes
grazing, the permit or lease, and the requirement to pay grazing fees
as stated in Section 3 of the Taylor Grazing Act. Section 3 states:
The Secretary of the Interior is * * * authorized to issue * * *
permits to graze livestock * * * to settlers, residents and other
stock owners * * * upon the payment annually of reasonable fees * *
*.
The requirement to pay fees annually has led to the
characterization of a paid grazing fee billing as an ``annual grazing
authorization'' for the purposes of applying other provisions of the
regulations such as requirements for consultation, the ability to
protest and appeal grazing decisions, and what grazing use BLM may
authorize if a grazing permitting decision is stayed. This change is
intended to make this regulation consistent with the regulation at
section 4130.2 which provides that the grazing permit or lease is the
document that authorizes grazing use on public lands.
The third category of prohibited acts is set forth in section
4140.1(c). Under this provision, the BLM may take civil
[[Page 68464]]
action under section 4170.1 against a grazing permittee or lessee that
violates any of the prohibited acts identified in this section. For
this category of prohibited acts, unlike the first two categories, the
primary responsibility for enforcement generally rests with a Federal
or state agency other than BLM. Three sets of prohibited acts are
identified in this section. The first set consists of Federal or State
laws or regulations pertaining to 6 different activities. Examples
include: placement of poisonous bait or hazardous devices designed for
the destruction of wildlife; pollution of water resources; and illegal
removal or destruction of archeological or cultural resources. The
second set of prohibited acts in this section identifies as prohibited
acts the violation of specific laws and regulations including the Bald
Eagle Protection Act, Endangered Species Act, and any provision of the
regulations concerning wild horses and burros. The third set of
prohibited acts in this section identifies as prohibited acts the
violation of State livestock laws or regulations relating to branding
and other livestock related issues. BLM proposes to retain the
provisions in the third category of prohibited acts which allow us to
withhold, suspend, or cancel all or part of a grazing permit if the
lessee or permittee is convicted of violating any of the prohibited
acts. The proposed rule would, however, clarify and limit BLM's
enforcement authority by limiting its application to prohibited acts
performed by a permittee or lessee on his allotment where he is
authorized to graze under a BLM permit or lease. This change is
intended to further ensure that the performance of the prohibited act
is related to the permit or lease under which the violator is
operating.
In the ANPR, BLM announced that it was considering which ``non-
permit related'' violations BLM may take into account in penalizing a
permittee. BLM received numerous comments opposing and supporting
changes to this section. Many affiliates of the livestock industry
characterized the current rule's provisions as a form of ``double
jeopardy.'' BLM does not believe that violation of the Federal or state
laws listed in section 4140.1 violates the Double Jeopardy Clause of
the Fifth Amendment of the Constitution when a civil sanction, such as
suspending or canceling a permit after conviction for violating
environmental laws on an allotment where an individual has a permit or
lease to graze, furthers the legitimate objective of encouraging
responsible stewardship of public rangelands. Therefore, section 4140.0
is not a punitive measure that can be viewed as causing multiple
punishments for the same offense. Furthermore, both the Endangered
Species Act (ESA) and the Bald Eagle Protection Act (BEPA) provide for
grazing sanctions. The ESA provides that if a Federal grazing permittee
or lessee is convicted for a criminal violation of the Act, the agency
may suspend, modify, or revoke the permit or lease. The BEPA provides
that the head of a Federal agency that issues a grazing permit or lease
may immediately cancel such permit or lease when a person who holds it
is convicted of violating the Act. Commenters who opposed any changes
in the prohibited acts section of the regulations urged BLM to retain
current authority to cancel, suspend, or deny permits when the
violation is related to environmental protection.
Subpart 4150--Unauthorized Grazing Use
Section 4150.3 Settlement
Existing paragraph (e) of this section has been modified to correct
the reference to subpart 4160. We also propose adding a new paragraph
(f) to this section to specify that if a permittee or lessee obtains a
stay of a decision that demands payment or cancels or suspends a
grazing authorization, BLM will allow him to graze under his existing
authorization pending resolution of the appeal. This proposed change
clarifies existing procedures and will ensure consistent implementation
of the regulations.
Subpart 4160--Administrative Remedies
Section 4160.1 Proposed Decisions
BLM proposes to amend this section to specify that a biological
evaluation or biological assessment that BLM prepares for purposes of
the Endangered Species Act (16 U.S.C. 1531-1544) (ESA) is not a
proposed decision for purposes of a protest to BLM, or a final decision
for purposes of an appeal to the Office of Hearings and Appeals under
the Taylor Grazing Act. This provision would prospectively supersede
the decision of the Interior Board of Land Appeals (IBLA) in Blake v.
BLM, 145 IBLA 154, 166 (1998) aff'd, 156 IBLA 280 (2000), holding that
the protest and appeal provisions of 43 CFR subpart 4160 apply to a
biological evaluation or biological assessment.
A Federal agency prepares a biological assessment or biological
evaluation when it considers action that may affect species or habitats
that are protected under the ESA and are located on land managed by the
Federal agency. A biological assessment or biological evaluation
necessarily identifies what action an agency is considering, so that
the U.S. Fish and Wildlife Service (FWS) or the National Marine
Fisheries Service (NMFS) can prepare a biological opinion pursuant to
section 7 of the ESA (16 U.S.C. 1536). In addition, a description of
the contemplated action would be necessary under proposed section
4130.3-3(b), which would provide for consultation with the interested
public and others during the preparation of biological assessments or
biological evaluations, to the extent practical. However, biological
assessments and biological evaluations are tools that the FWS and the
NMFS use to decide whether to initiate formal consultation under
section 7 of the ESA. Therefore, they are not proposed grazing
decisions that may be protested to BLM, or final grazing decisions
appealable to OHA. If formal consultation is not required upon
completion of the biological assessment, BLM will issue a proposed
decision, such as the issuance of a permit or lease, that may be
protested and appealed. If formal consultation is required, upon
completion of the Section 7 consultation process BLM will issue a
decision that may be the subject of protest and appeal.
Section 4160.3 Final Decisions
In order to reconcile statutory directives found in the
Administrative Procedure Act, 5 U.S.C. 701-706 (APA), TGA and FLPMA,
BLM proposes to amend this section by--
[sbull] Cross-referencing the Department's administrative appeals
regulations,
[sbull] Clarifying the requirement that one must exhaust
administrative remedies, and
[sbull] Defining what grazing is authorized while an administrative
appeal is pending.
Current paragraph (c) states the 30-day deadline for filing an
appeal of a final grazing decision or of a proposed decision that has
become final ``by default'' because no party protested it. The proposed
rule would move this text to section 4160.4 on Appeals, where it more
properly belongs. BLM believes that the proposed revision would avoid
duplication and more clearly cross-reference procedures applicable to
grazing decision appeals in the regulations at 43 CFR 4.470. Paragraph
(f) of this section would be redesignated paragraph (c) and edited for
clarity.
Current paragraphs (d) and (e) describe what grazing is authorized
if a petition for stay of a final grazing
[[Page 68465]]
decision is granted by the Office of Hearings and Appeals. Additional
discussions related to those paragraphs appear in section 4160.4,
below.
Section 4160.4 Appeals
The proposed rule would amend this section by adding language
clarifying how the appeal of a BLM grazing decision, and a petition for
a stay of the decision pending appeal, affect the effectiveness of the
decision and the continuity of ongoing grazing operations, if any. The
current provision merely states the procedural requirements for filing
appeals, and defers to the Department of the Interior regulations at 43
CFR 4.470, which do not address the issues of whether and to what
degree ongoing activities should continue in the face of an appeal or
stay.
The APA provides a right of action against agencies and officers of
the United States to persons adversely affected or aggrieved by agency
action. However, such action may be sought in a federal court only when
a decision is ``final.'' 5 U.S.C. 704. An agency action is not
considered final where the agency requires by rule that an
administrative appeal to a superior agency authority be filed and
provides that the agency action is inoperative while the appeal is
pending. The Department's administrative appeals regulations recognize
the requirement that a party must first exhaust administrative remedies
before resorting to Federal Court: ``No decision which at the time of
its rendition is subject to appeal to the Director or an Appeals Board
shall be considered final so as to be agency action subject to judicial
review under 5 U.S.C. 704, unless a petition for a stay of decision has
been timely filed and the decision being appealed has been made
effective. * * *'' 43 CFR 4.21(c).
Under the Department's administrative appeals regulations, unless
the authorized officer, the Director of OHA, or IBLA places a decision
in immediate effect, a BLM grazing decision is ineffective until the
30-day appeal period expires. If a petition for stay is filed within
the appeal period, the decision is not in effect for 45 days after the
expiration of the appeal period or until OHA acts on the stay petition,
whichever occurs first. If the stay is not granted, the party has
exhausted his administrative remedies and may seek review in federal
court. If a stay is granted, the decision, with exceptions discussed
below, is inoperative while the appeal is pending, and thus under the
APA a party must exhaust his administrative remedies before resorting
to federal court.
There are instances, however, where grazing may continue even
though an appeal has been filed and a stay of the decision has been
granted. These situations do not, however, present a conflict with the
``finality'' requirement found in the APA. The first example occurs
when a party appeals, but does not seek a stay of the decision. In such
a case the decision will be in effect after the 30-day appeal period,
but it is not considered ``final'' for purposes of the APA since the
party did not exhaust his administrative remedies. Under the current
regulations, grazing is allowed even after the decision is stayed when
there was no valid permit or lease in effect at the time of the
appealed decision. BLM regulations provide that in such a situation,
grazing would be allowed consistent with the appealed decision even
when the decision is stayed. In such a case, a party would have fully
complied with OHA's regulations pertaining to exhaustion of
administrative remedies, but grazing would be allowed. BLM believes it
is necessary to allow grazing even if a stay is granted because the OHA
regulations do not establish time frames for resolution of appeals. To
do otherwise would potentially eliminate grazing and deny a user the
ability to graze the lands for years awaiting an administrative
decision. As a result, a party could seek judicial review of the
decision since the decision would be effective during the appeal. In
cases such as these, the BLM is attempting to find a balance between
the exhaustion of administrative remedies under the APA and its
responsibilities under FLPMA and TGA to:
[sbull] Manage lands for multiple use and sustained yield,
[sbull] Regulate the occupancy and use of the rangelands,
[sbull] Safeguard grazing privileges,
[sbull] Preserve the public rangelands from destruction or
unnecessary injury, and
[sbull] Provide for the orderly use, improvement, and development
of the range.
BLM proposes to set forth the kinds of grazing decisions that would
be rendered inoperative by the granting of a stay of a BLM grazing
decision:
[sbull] Those that modify terms and conditions of a permit or lease
during its current term or during the renewal process; and
[sbull] Those that offer a permit or lease to a preference
transferee with terms and conditions that are different from the
previous permit or lease terms and conditions.
It is proposed that if a stay of either of these kinds of decisions
is granted, the immediately preceding grazing authorization would not
expire and the affected permittee, lessee, or preference applicant
would continue grazing under the immediately preceding grazing
authorization, subject to any applicable provisions of the stay order
and subject to the provisions of proposed section 4130.3(b).
As a result, the appealed decision is inoperative. Nonetheless,
grazing under the prior grazing authorization would continue under the
APA provision at 5 U.S.C. 558 requiring that ``a license with reference
to an activity of a continuing nature'' does not expire until an agency
makes a new determination. Thus, a permittee or lessee who has made
timely and sufficient application for a renewal or a new license in
accordance with part 4100 would not have his permit or lease expire
until the application has been finally determined by the Department of
the Interior (5 U.S.C. 558(c)). This approach reconciles the exhaustion
provision of the APA and the expectation set forth in the APA that a
permittee will continue to operate under the immediately preceding
authorization in order to ensure security of tenure.
Where a party has no valid grazing authorization at the time that
the decision is rendered, there is a reduction in area available for
grazing use, or the applicant is seeking use of ephemeral or annual
rangelands, BLM could not authorize use based on the previous year's
authorization. Thus, under the proposed rule, grazing would continue
pursuant to the decision even in the case of a stay when a decision:
[sbull] Modifies a permit or lease because of a decrease in public
land acreage available for grazing;
[sbull] Affects an application for grazing use of BLM-designated
ephemeral or annual rangeland;
[sbull] Affects an application for additional forage temporarily
available;
[sbull] Affects an application for a grazing permit or lease that
is not made in conjunction with a preference transfer application.
In these cases, BLM would authorize grazing consistent with the
final decision that has been stayed, and affected parties could resort
to the Federal Courts without exhausting administrative remedies.
BLM specifically invites comment on this section regarding how it
might effectively incorporate both the exhaustion and ``activity of a
continuing nature'' requirements of the APA, and ensure that the public
land grazing is managed in such a way as to meet the direction of the
TGA and FLPMA.
[[Page 68466]]
Subpart 4170--Penalties
Section 4170.1-2 Failure To Use
BLM proposes to remove the term ``permitted use'' from this section
and replace it with the term ``active use.'' This is consistent with
our proposed definitions.
Subpart 4180--Fundamentals of Rangeland Health and Standards and
Guidelines for Grazing Administration
Section 4180.1 Fundamentals of Rangeland Health
BLM proposes revising the introduction to provide that BLM will
take action to change grazing management so that it will assist in
achieving the fundamentals, only if there are no applicable standards
and guidelines in place.
In the preamble to the final rule for the 1995 grazing regulation
amendments, the fundamentals of rangeland health were identified as the
basic components of rangeland health and were intended to serve as
overarching principles to be supplemented by the standards and
guidelines. Stated another way, the standards and guidelines were to be
developed under the umbrella of the fundamentals. As such, the
standards and guidelines serve as more locally specific measures of
rangeland health and acceptable management practices consistent with
intent of the fundamentals.
Under the existing regulations at section 4180.1, BLM is required
to take appropriate action upon determining that existing grazing
management needs to be modified to ensure that the four conditions,
which make up the fundamentals of rangeland health, exist. In addition,
under the existing regulations at section 4180.2, BLM is required to
take appropriate action upon determining that existing management
practices or levels of grazing use on public lands are significant
factors in failing to achieve the standards and conform to the
guidelines for grazing administration. Where regionally specific
standards and guidelines have been developed and approved, there is no
need for BLM managers to make two separate determinations as suggested
by the existing rule. An evaluation of standards attainment and
guidelines conformance to determine whether existing grazing management
practices or levels of grazing use are significant factors in failing
to achieve the standards and conform with the standards and guidelines
will effectively satisfy the requirement for an evaluation to determine
if existing grazing management needs to be changed to ensure the
existence of the conditions as defined by the fundamentals. Thus, an
evaluation relating to the fundamental of rangeland health is necessary
only in those circumstances where standards and guidelines have not
been developed and approved.
BLM proposes revising the introduction also to change the amount of
time BLM would need to take action to ensure that resource conditions
conform to the requirements of this section. The deadline would change
from not later than the start of the next grazing year to not later
than the start of the grazing year following BLM's completion of
action, including consultation under sections 4110.3-3 and 4130.3-3.
This change will provide time for BLM to complete relevant and
applicable requirements of law and regulation, such as NEPA compliance
documentation, consultation under ESA if applicable, and required
consultation under sections 4110.3-3 and 4130.3-3. BLM is doing this
because some decisions must address complex resource management
circumstances and require time to determine the most appropriate course
of action.
BLM received few comments on this provision in response to the
ANPR. The ANPR stated that we are considering whether to amend the
provision stating when BLM will implement action that changes grazing
management after determining that the allotments used by a permittee or
lessee are not meeting or significantly progressing toward meeting land
health standards. Most of the comments BLM received asked us to
implement stricter adherence to the already existing standards and to
establish time frames for compliance and consequences for not achieving
those time frames. We believe the current framework is effective and
achieves compliance. Other commenters asked that we move the
fundamentals of rangeland health provisions to Subpart 1610, Resource
Management Planning. At this time we plan to leave the health standards
in the grazing portion of our regulations.
Section 4180.2 Standards and Guidelines for Grazing Administration
BLM proposes revising paragraph (c) to provide that we would
require both assessments of standards attainment and monitoring to
support a determination that grazing practices are a significant factor
in failing to achieve, or not making significant progress towards
achieving rangeland health standards. BLM's current policy is to use
all available relevant information, including monitoring data when
available, to assess standards attainment.
The change proposed by this rule would require that BLM support
standards attainment determinations with assessment and monitoring
data.
We would also revise paragraph (c) to provide that within 24 months
following a determination that current grazing practices are a
significant factor in failing to achieve or make progress towards
achievement of standards, BLM would, in compliance with applicable law
and with consultation requirements, analyze, formulate, and propose
appropriate action intended to remedy the failure to meet the
standards. Under the current rule, following the determination BLM must
take appropriate action ``before the start of the next grazing year.''
The new provision states that these requirements would be met upon
execution of an agreement or issuance of a final decision to implement
appropriate action. Following the agreement or decision, and resolution
of any appeals to the decision, BLM would be required to implement the
appropriate action before the start of the next grazing year.
BLM also proposes removing the phrase ``Category 1 or 2'' with
respect to the designation of special status to candidate threatened
and endangered (T&E) species because the FWS no longer uses these
designations.
These changes are being proposed for several reasons. BLM
recognizes that one of the thrusts of ``Rangeland Reform `94'' was to
require BLM to implement timely and responsive remedial action upon
determining that existing grazing practices were preventing achievement
of rangeland health standards. Since the implementation of this rule,
BLM has found that in many cases, requiring our field offices to take
action ``before the start of the next grazing year,'' i.e. within a
maximum of 12 months of the determination, is insufficient time to
complete the governmental processes involved in making a reasoned
choice regarding the appropriate action, and it does not allow for
operation adjustments by the affected grazing operators that are not
unduly economically disruptive.
Arriving at a proposed remedial response that requires gathering
and analyzing relevant information and necessary coordination takes
time. BLM must then consider the appropriate action and document
reasonable alternatives in accordance with NEPA. Consultation under
ESA, which can be time-consuming, may be required at this stage. Then,
BLM must develop a proposed grazing decision that
[[Page 68467]]
implements the action, which is subject to protest and appeal. Should
the final decision be stayed pending appeal, further time is consumed.
In practice, implementing appropriate action within 12 months of
determining that grazing practices need to be changed is unrealistic in
many cases. BLM proposes to extend its self-imposed deadline to 24,
rather than 12 months in which to complete these processes. BLM
believes that this will allow the necessary time to deliberate and
implement responsive, reasonable, and lasting remedies.
V. Procedural Matters
Executive Order 12866, Regulatory Planning and Review
The Office of Management and Budget determined that these proposed
regulations are a significant regulatory action and therefore subject
to review under Executive Order 12866. These proposed regulations would
not have an effect of $100 million or more on the economy. The proposed
regulatory changes would not adversely affect, in a material way, the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities.
The proposed rule would not create a serious inconsistency or
otherwise interfere with an action taken or planned by another agency.
BLM is aware that there are differences between its grazing program and
the program administered by the U.S. Forest Service (USFS). For
example, the USFS regulations and procedures do not include a temporary
suspension category, unlike the BLM proposal in section 4110.3-2. The
USFS regulations at 36 CFR 222.9(b)(2) provide that title to permanent
structural range improvements on National Forest System lands such as
pipelines and water troughs remains with the United States, unlike the
BLM proposal in section 4120.3-2 that allows for the sharing of the
title for some improvements with permittees and lessees. The USFS
regulations may provide for a more streamlined process to modify
grazing permits, particularly in situations where grazing activities
need to be restricted.
Despite these and other differences, BLM believes that any
inconsistencies between BLM's grazing program and USFS' are not serious
and will not interfere with actions taken or planned by the agencies.
They merely represent differences in management approach and
philosophy. However, we specifically invite public comment on whether
any inconsistencies between the regulations and practices of the two
agencies interfere with the operations of any BLM lessees or
permittees, or otherwise inconvenience them or any other stakeholders.
These proposed regulations do not alter the budgetary effects of
entitlements, grants, user fees, or loan programs or the right or
obligations of their recipients; nor do they raise novel legal issues.
However, the proposed rule raises novel policy issues by reversing or
otherwise changing policy established in a 1995 rule.
Regulatory Flexibility Act
Congress enacted the Regulatory Flexibility Act (RFA) of 1980, as
amended, 5 U.S.C. 601-612, to ensure that Government regulations do not
unnecessarily or disproportionately burden small entities. The RFA
requires a regulatory flexibility analysis if a rule would have a
significant economic impact, either detrimental or beneficial, on a
substantial number of small entities. BLM prepared an Initial
Regulatory Flexibility Act Analysis to address changes we are
considering in this proposed rule and has concluded that this proposed
rule will not have significant economic impact, either detrimental or
beneficial, on a substantial number of small entities. This document is
available for review at 1620 L Street NW., Washington, DC 20036 and on
the Internet at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.blm.gov.grazing.
The proposed rule would not create a serious inconsistency or
otherwise interfere with an action taken or planned by another agency.
The proposed change would not alter the budgetary effects of
entitlements, grants, user fees, or loan programs or the rights or
obligations of their recipients; nor does it raise novel legal or
policy issues, except as discussed in the previous section of the
preamble.
Small Business Regulatory Enforcement Fairness Act
This proposed rule is not a ``major rule'' as defined at 5 U.S.C.
804(2). The changes BLM is proposing to the current grazing regulations
would not result in an effect on the economy of $100 million or more,
in an increase in costs or prices, or in significant adverse effects on
competition, employment, investment, productivity, innovation or on the
ability of United States-based enterprises to compete with foreign-
based enterprises in domestic and export markets.
The changes BLM proposes are intended to clarify existing
requirements and qualifications. These changes would positively affect
all applicants, whether small entities or not.
Unfunded Mandates Reform Act
This amendment of 43 CFR Part 4100, as proposed, would not result
in any unfunded mandate to state, local, or tribal governments, or to
the private sector, in the aggregate, of $100 million or more. The rule
would continue and strengthen requirements for BLM to consult with all
of these governmental and other entities whenever they would likely be
affected by our actions relating to livestock grazing.
Executive Order 12630, Governmental Actions and Interference With
Constitutionally Protected Property Rights
The proposed rule does not represent a government action capable of
interfering with constitutionally protected property rights. The
relevant statutes and regulations governing grazing on Federal land and
case law interpreting these statutes and regulations have consistently
recognized grazing on Federal land as a revocable license and not a
property interest. Therefore, the Department of the Interior has
determined that the rule would not cause a taking of private property
or require further discussion of takings implications under this
Executive Order.
Executive Order 13132, Federalism
The proposed rule would not have a substantial direct effect on the
states, on the relationship between the national government and the
states, or on the distribution of power and responsibilities among the
various levels of government. BLM's inability to issue conservation use
grazing permits neither hinders nor enhances authority vested in states
or local governments. The rule would continue and strengthen
requirements for BLM to consult with all of these governmental and
other entities whenever they would likely be affected by our actions
relating to livestock grazing. Therefore, in accordance with Executive
Order 13132, BLM has determined that this proposed rule does not have
sufficient Federalism implications to warrant preparation of a
Federalism Assessment.
Executive Order 13175 Consultation and Coordination With Indian Tribal
Governments
In accordance with Executive Order 13175, we have determined that
this rule does not include policies that have tribal implications. The
rule expressly does not apply to, and these rules
[[Page 68468]]
expressly exclude, Indian lands set aside or held for the benefit of
Indians from the effects of the rule.
Executive Order 12988, Civil Justice Reform
Under Executive Order 12988, the Office of the Solicitor has
determined that this proposed rule would not unduly burden the judicial
system and that it meets the requirements of sections 3(a) and 3(b)(2)
of the Order.
Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35),
BLM must consider whether this proposed rule will create any additional
collection, paperwork, or record keeping burdens on the public. These
burdens are permissible only when BLM can justify the practical utility
of the information collected under the rule. Office of Management and
Budget (OMB) approval is required of any new requirements for a
collection of information imposed on 10 or more persons, and a valid
OMB control number must be obtained for any covered paperwork.
The information collection requirements contained in Group 4100
have been approved by the OMB under 44 U.S.C. 3501 et seq. and assigned
the following clearance numbers: 1004-0005, 1004-0019, 1004-0020, 1004-
0041, 1004-0047, 1004-0051, 1004-0068. The information would be
collected to permit BLM to determine whether an application to utilize
public lands for grazing or other purposes should be approved.
Today's proposed rule will necessitate some modifications of terms
in the forms used to collect information. However, there will be no
change in the reporting burden as a result of today's proposed rule.
Therefore, these regulations do not contain information collection
requirements that OMB must approve.
National Environmental Policy Act
The BLM has determined that these proposed regulations constitute a
major Federal action significantly affecting the quality of the human
environment under section 102(2)(C) of the National Environmental
Policy Act of 1969, 42 U.S.C. 4332(2)(C). BLM and all Federal agencies
are required by the National Environmental Policy Act (NEPA) to prepare
an EIS if a proposed action has potential for significant environmental
impacts. BLM has prepared a draft environmental impact statement (DEIS)
which will be on file and available to the public in the BLM
Administrative Record at the address specified in the ADDRESSES
section. The Draft Environmental Impact Statement will also be
available at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.blm.gov/grazing. The draft document considers
the impacts of this proposed rulemaking to amend the regulations
governing livestock grazing on public lands. You may comment on the EIS
via the interactive ePlanning Web site, at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.blm.gov/grazing.
Executive Order 13211, Action Concerning Regulations That Significantly
Affect Energy Supply, Distribution, or Use
In accordance with Executive Order 13211, BLM finds that this
proposed rule is not likely to have a significant adverse effect on the
supply, distribution, or use of energy. The distribution of or use of
energy would not be unduly affected by this proposed rule.
Clarity of the Regulations
Executive Order 12866 requires each agency to write regulations
that are simple and easy to understand. We invite your comments on how
to make these proposed regulations easier to understand, including
answers to questions such as the following: (1) Are the requirements in
the proposed regulations clearly stated? (2) Do the proposed
regulations contain technical language or jargon that interferes with
their clarity? (3) Does the format of the proposed regulations
(grouping and order of sections, use of headings, paragraphing, etc.)
aid or reduce their clarity? (4) Would the regulations be easier to
understand if they were divided into more (but shorter) sections? (A
``section'' appears in bold type and is preceded by the symbol
``Sec. '' and a numbered heading, for example ``Sec. 4160.4.'') (5) Is
the description of the proposed regulations in the SUPPLEMENTARY
INFORMATION section of this preamble helpful in understanding the
proposed regulations? How could this description be more helpful in
making the proposed regulations easier to understand?
Please send any comments you have on the clarity of the regulations
to the address specified in the ADDRESSES section.
Author
The principal author of this rule is Ken Visser, Rangeland
Management Specialist; Rangeland, Soil, Water and Air Group, assisted
by Ted Hudson and Cynthia L. Ellis of the Regulatory Affairs Group.
List of Subjects in 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 authorities
cited below, we propose to amend Title 43, Subtitle B, Chapter II,
Subchapter D, Part 4100, as follows:
Dated: November 18, 2003.
J. Steven Griles,
Deputy Secretary of the Interior.
PART 4100--GRAZING ADMINISTRATION--EXCLUSIVE OF ALASKA
1. The authority citation for part 4100 continues to read as
follows:
Authority: 43 U.S.C. 315, 315a-315r, 1181d, 1740.
Subpart 4100--Grazing Administration--Exclusive of Alaska; General
2. Amend Sec. 4100.0-2 by redesignating the first sentence as
paragraph (a) and the second sentence as paragraph (b), and by revising
newly designated paragraph (b) to read as follows:
Sec. 4100.0-2 Objectives.
* * * * *
(b) These objectives will be realized in a manner consistent with
land use plans, multiple use, sustained yield, environmental values,
economic and other objectives stated in 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. 1701) and the
Public Rangelands Improvement Act of 1978 (43 U.S.C. 1901(b)(2)).
3. Amend Sec. 4100.0-3 by revising paragraphs (c), (d), and (f) to
read as follows:
Sec. 4100.0-3 Authority.
* * * * *
(c) Executive orders that transfer land acquired under the
Bankhead-Jones Farm Tenant Act of July 22, 1937, as amended (7 U.S.C.
1012), to the Secretary and authorize administration under the Taylor
Grazing Act.
(d) Section 4 of the Oregon and California Railroad Land Act of
August 28, 1937 (43 U.S.C. 1181d);
* * * * *
(f) Public land orders, Executive orders, and agreements that
authorize the Secretary to administer livestock grazing on specified
lands under the Taylor Grazing Act or other authority as specified.
[[Page 68469]]
4. Amend Sec. 4100.0-5 by removing the definitions of
``conservation use'' and ``permitted use'', and revising the
definitions of ``active use'', ``grazing lease'', ``grazing permit'',
``grazing preference or preference'', ``interested public'',
``suspension'', and ``temporary nonuse'', and adding a definition of
``preference'', to read as follows:
Sec. 4100.0-5 Definitions.
* * * * *
Active use means that portion of the grazing preference that is:
(1) Available for livestock grazing use under a permit or lease
based on rangeland carrying capacity and resource conditions in an
allotment; and
(2) Not in suspension.
* * * * *
Grazing lease means a document that authorizes grazing use of the
public lands under Section 15 of the Act. A grazing lease specifies
grazing preference and the terms and conditions under which lessees
make grazing use during the term of the lease.
Grazing permit means a document that authorizes grazing use of the
public lands under Section 3 of the Act. A grazing permit specifies
grazing preference and the terms and conditions under which permittees
make grazing use during the term of the permit.
Grazing preference or preference means the total number of animal
unit months on public lands apportioned and attached to base property
owned or controlled by a permittee, lessee, or an applicant for a
permit or lease. Grazing preference includes active use and use held in
suspension. Grazing preference holders have a superior or priority
position against others for the purpose of receiving a grazing permit
or lease.
Interested public means an individual, group, or organization that
has:
(1) (i) Submitted a written request to BLM to be provided an
opportunity to be involved in the process leading to a BLM decision on
the management of livestock grazing on public lands, and
(ii) Followed up that request by commenting on or otherwise
participating in the decisionmaking process as to the management of a
specific allotment if there has been an opportunity for such
participation; or
(2) Submitted written comments to the authorized officer regarding
the management of livestock grazing on a specific allotment, as part of
the process leading to a BLM decision on the management of livestock
grazing on the allotment.
* * * * *
Preference means grazing preference (see definition of ``grazing
preference'').
* * * * *
Suspension means the withholding from active use, through a
decision issued by the authorized officer or by agreement, of part or
all of the grazing preference specified in a grazing permit or lease.
Temporary nonuse means that portion of active use that the
authorized officer authorizes not to be used, in response to an
application made by the permittee or lessee.
* * * * *
5. Revise Sec. 4100.0-9 to read as follows:
Sec. 4100.0-9 Information collection.
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. The information is collected to enable the
authorized officer to determine whether to approve an application to
utilize public lands for grazing or other purposes.
Subpart 4110--Qualifications and Preference
6. Amend Sec. 4110.1 by removing paragraphs (b)(1), (b)(2), and
(c), by redesignating paragraph (d) as paragraph (c), and by revising
paragraph (b) to read as follows:
Sec. 4110.1 Mandatory qualifications.
* * * * *
(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 under Sec. 4130.1-1(b).
* * * * *
7. Amend Sec. 4110.2-1 by redesignating paragraphs (d) and (e) as
paragraphs (e) and (f), respectively, and by redesignating the last two
sentences of paragraph (c) as paragraph (d).
8. Revise Sec. 4110.2-2 to read as follows:
Sec. 4110.2-2 Specifying grazing preference.
(a) All grazing permits and grazing leases will specify grazing
preference, except for permits and leases for designated ephemeral
rangelands, where BLM authorizes livestock use based upon forage
availability, or designated annual rangelands. Preference includes
active use and any suspended use. Active use is based on 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.
(b) The grazing preference specified is attached to the base
property supporting the grazing permit or grazing lease.
(c) The animal unit months of grazing preference are attached to:
(1) The acreage of land base property on a pro rata basis, or
(2) Water base property on the basis of livestock forage production
within the service area of the water.
9. Amend Sec. 4110.2-3 by revising paragraph (b) to read as
follows:
Sec. 4110.2-3 Transfer of grazing preference.
* * * * *
(b) If base property is sold or leased, the transferee shall within
90 days of the date of sale or lease file with BLM a properly executed
transfer application showing the base property and the grazing
preference being transferred in animal unit months.
* * * * *
10. Revise Sec. 4110.2-4 to read as follows:
Sec. 4110.2-4 Allotments.
After consultation, cooperation, and coordination with the affected
grazing permittees or lessees and the state having lands or
responsibility for managing resources within the area, 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.
11. Revise Sec. 4110.3 to read as follows:
Sec. 4110.3 Changes in grazing preference.
(a) The authorized officer will periodically review the grazing
preference specified in a grazing permit or lease and make changes in
the grazing preference as needed to:
(1) Manage, maintain, or improve rangeland productivity;
(2) Assist in restoring ecosystems to properly functioning
conditions;
(3) Conform with land use plans or activity plans; or
(4) Comply with the provisions of subpart 4180.
(b) The authorized officer will support these changes by
monitoring, documented field observations, ecological site inventory,
or other data acceptable to the authorized officer.
(c) Before changing grazing preference, the authorized officer will
undertake the appropriate analysis as
[[Page 68470]]
required by the National Environmental Policy Act of 1969 (42 U.S.C.
4321 et seq.). The authorized officer will analyze and, if appropriate,
document the relevant social, economic, and cultural effects of the
proposed action.
12. Revise Sec. 4110.3-1 to read as follows:
Sec. 4110.3-1 Increasing active use.
BLM may apportion additional forage to qualified applicants for
livestock grazing use consistent with multiple-use management
objectives specified in the applicable land use plan.
(a) Additional forage temporarily available. When the authorized
officer determines that additional livestock forage is temporarily
available, he may authorize its use on a nonrenewable basis in the
following order:
(1) To permittees or lessees who have preference for grazing use in
the allotment where the forage is available, in proportion to their
active use; and
(2) To other qualified applicants under Sec. 4130.1-2.
(b) Additional forage available on a sustained yield basis. When
the authorized officer determines that additional forage is available
on a sustained yield basis, he will apportion it in the following
manner:
(1) First, to remove all or a part of the suspension of preference
of permittees or lessees with permits or leases in the allotment where
the forage is available; and
(2) Second, if additional forage remains after ending all
suspensions, the authorized officer will consult, cooperate, and
coordinate with the affected permittees or lessees, the state having
lands responsibility for managing resources within the area, and the
interested public, and apportion it in the following order:
(i) Permittees or lessees in proportion to their contribution to
stewardship efforts that result in increased forage production;
(ii) Permittee(s) or lessee(s) in proportion to the amount of their
grazing preference; and
(iii) Other qualified applicants under Sec. 4130.1-2.
13. Revise Sec. 4110.3-2 to read as follows:
Sec. 4110.3-2 Decreasing active use.
(a) The authorized officer may suspend active use in whole or in
part on a temporary basis due to reasons specified in Sec. 4110.3-
3(b)(1), or to facilitate installation, maintenance, or modification of
range improvements.
(b) When monitoring or documented 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 will reduce active
use, otherwise modify management practices, or both. To implement
reductions under this paragraph, BLM will suspend active use.
14. Revise Sec. 4110.3-3 to read as follows:
Sec. 4110.3-3 Implementing changes in active use.
(a)(1) After consultation, cooperation, and coordination with the
affected permittee or lessee and the state having lands or managing
resources within the area, the authorized officer will implement
changes in active use through a documented agreement or by a decision.
The authorized officer will implement changes in active use in excess
of 10 percent over a 5-year period unless:
(i) After consultation with the affected permittees or lessees, an
agreement is reached to implement the increase or decrease in less than
5 years, or
(ii) The changes must be made before 5 years have passed in order
to comply with applicable law.
(2) Decisions implementing Sec. 4110.3-2 will be issued as
proposed decisions pursuant to Sec. 4160.1, except as provided in
paragraph (b) of this section.
(b)(1) After consultation with, or a reasonable attempt to consult
with, affected permittees or lessees and the state having lands or
responsibility for managing resources within the area, the authorized
officer will 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 when the authorized
officer determines and documents that--
(i) The soil, vegetation, or other resources on the public lands
require immediate protection because of conditions such as drought,
fire, flood, insect infestation; or
(ii) Continued grazing use poses an imminent likelihood of
significant resource damage.
(2) 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 will
remain in effect pending the decision on appeal unless the Office of
Hearings and Appeals grants a stay in accordance with Sec. 4.21 of
this title.
15. Amend Sec. 4110.4-2 by revising the first sentence of
paragraph (a)(2) to read as follows:
Sec. 4110.4-2 Decrease in land acreage.
(a) * * *
(2) Grazing preference may be canceled in whole or in part. * * *
* * * * *
Subpart 4120--Grazing Management
16. Amend Sec. 4120.2 by revising the final sentence of paragraph
(c) to read as follows:
Sec. 4120.2 Allotment management plans and resource activity plans.
* * * * *
(c) * * * The decision document following the environmental
analysis will be issued in accordance with Sec. 4160.1.
* * * * *
17. Amend Sec. 4120.3-1 by revising paragraph (f) to read as
follows:
Sec. 4120.3-1 Conditions for range improvements.
* * * * *
(f) The authorized officer will review proposed range improvement
projects as required by the National Environmental Policy Act of 1969
(42 U.S.C. 4321 et seq.). The decision document following the
environmental analysis shall be issued in accordance with Sec. 4160.1.
18. Amend Sec. 4120.3-2 by revising paragraph (b) to read as
follows:
Sec. 4120.3-2 Cooperative range improvement agreements.
* * * * *
(b) Subject to valid existing rights, cooperators and the United
States share title to permanent structural range improvements such as
fences, wells, and pipelines where authorization is granted after
February 6, 2004 in proportion to their contribution to on-the-ground
project development and construction costs. 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. The authorized officer will document a
permittee's or lessee's interest in contributed funds, labor, and
materials to ensure proper credit for the purposes of Sec. Sec.
4120.3-5 and 4120.3-6(c).
* * * * *
19. Amend Sec. 4120.3-3 by revising the introductory text of
paragraph (c) to read as follows:
Sec. 4120.3-3 Range improvement permits.
* * * * *
[[Page 68471]]
(c) Where a permittee or lessee cannot make use of the forage
available for livestock and an application for temporary nonuse 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).
* * * * *
20. Amend Sec. 4120.3-8 by removing the misspelling ``whith'' from
where it appears in the last sentence of paragraph (b) and adding in
its place the word ``which''.
21. Revise Sec. 4120.3-9 to read as follows:
Sec. 4120.3-9 Water rights for the purpose of livestock grazing on
public lands.
Any right that the United States acquires to use water on public
land for the purpose of livestock watering on public land will be
acquired, perfected, maintained, and administered under the substantive
and procedural laws of the state within which such land is located.
22. Amend Sec. 4120.5-2 by removing the word ``and'' after the
semicolon at the end of paragraph (a), removing the period at the end
of paragraph (b) and adding in its place a semicolon and the word
``and'', and adding paragraph (c) to read as follows:
Sec. 4120.5-2 Cooperation with state, county, and Federal agencies.
* * * * *
(c) State, local, or county-established grazing boards in reviewing
range improvements and allotment management plans on public lands.
23. Revise Sec. 4130.1-1 to read as follows:
Sec. 4130.1-1 Filing applications.
(a) Applications for grazing permits or leases (active use and
nonuse), free-use grazing permits and other grazing authorizations
shall be filed with the authorized officer at the local Bureau of Land
Management office having jurisdiction over the public lands involved.
(b) The authorized officer will determine whether applicants for
the renewal or issuance of new permits and leases and any affiliates
have a satisfactory record of performance. The authorized officer will
not approve such renewal or issuance unless the applicant and all
affiliates have a satisfactory record of performance.
(1) Renewal of permit or lease.
(i) The authorized officer will deem the applicant for renewal of a
grazing permit or lease, and any affiliate, 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. The authorized officer will deem
applicants for new permits or leases, and any affiliates, to have a
record of satisfactory performance when--
(i) The applicant or affiliate has not had any Federal grazing
permit or lease canceled, in whole or in part, for violation of the
permit or lease within the 36 calendar months immediately preceding the
date of application; and
(ii) The applicant or affiliate has not had any state grazing
permit or lease, for lands within the grazing allotment for which a
Federal permit or lease is sought, canceled, in whole or in part, for
violation of the permit or lease within the 36 calendar months
immediately preceding the date of application; and
(iii) A court of competent jurisdiction does not bar the applicant
or affiliate from holding a Federal grazing permit or lease.
(c) In determining whether affiliation exists, the authorized
officer will consider all appropriate factors, including, but not
limited to, common ownership, common management, identity of interests
among family members, and contractual relationships.
24. Amend Sec. 4130.2 as follows:
A. By adding the word ``and'' after the semicolon at the end of
paragraph (e)(2);
B. By removing paragraphs (g) and (h) and redesignating paragraphs
(i) and (j) as paragraphs (g) and (h), respectively;
C. In redesignated paragraph (g), by revising the reference ``(see
Sec. 4130.3-2)'' to read ``(see Sec. 4130.3-2(g))''; and
D. By revising paragraphs (a), (b), and (f) to read as follows:
Sec. 4130.2 Grazing permits and leases.
(a) Grazing permits and leases authorize use on the public lands
and other BLM-administered lands that are designated in land use plans
as available for livestock grazing. Permits and leases will specify the
grazing preference, including active and suspended use. These grazing
permits and leases will also specify terms and conditions pursuant to
Sec. Sec. 4130.3, 4130.3-1, and 4130.3-2.
(b) The authorized officer will consult, cooperate, and coordinate
with affected permittees and lessees, and the state having lands or
responsibility for managing resources within the area, before issuing
or renewing grazing permits and leases.
* * * * *
(f) A permit or lease is not valid unless both the BLM and the
permittee or lessee have signed it.
* * * * *
25. Amend Sec. 4130.3 by redesignating the existing text as
paragraph (a) and adding paragraphs (b) and (c) to read as follows:
Sec. 4130.3 Terms and conditions.
* * * * *
(b) Upon a BLM offer of a permit or lease, the permit or lease
terms and conditions may be protested and appealed under part 4 and
subpart 4160 unless:
(1) The terms and conditions of the permit or lease, such as terms
and conditions mandated by a biological opinion prepared under the
Endangered Species Act, are not subject to review by the Office of
Hearings and Appeals; or
(2) The offer of permit or lease responds to an application for a
permit or lease for grazing use on additional land acreage (see Sec.
4110.4-1).
(c) If any of the terms and conditions of a BLM-offered permit or
lease are stayed pending appeal, BLM will authorize grazing use as
provided in Sec. 4160.4.
26. Amend Sec. 4130.3-2 by adding the word ``and'' after the
semicolon at the end of paragraph (f), by removing the semicolon and
the word ``and'' at the end of paragraph (g) and adding in their place
a period, and by removing paragraph (h).
27. Revise Sec. 4130.3-3 to read as follows:
Sec. 4130.3-3 Modification of permits or leases.
(a) Following consultation, cooperation, and coordination with the
affected lessees or permittees and the state having lands or
responsibility for managing resources within the area, the authorized
officer may modify terms and conditions of the permit or lease when the
active use or related management practices:
(1) Do not meet management objectives specified in:
(i) The land use plan;
(ii) The pertinent allotment management plan or other activity
plan; or
[[Page 68472]]
(iii) An applicable decision issued under Sec. 4160.3; or
(2) Do not conform to the provisions of subpart 4180.
(b) To the extent practical, during the preparation of biological
assessments or biological evaluations prepared under the Endangered
Species Act, and other reports that evaluate monitoring and other data,
that the authorized officer uses as a basis for making decisions to
increase or decrease grazing use, or to change the terms and conditions
of a permit or lease, the authorized officer will provide review
opportunity and opportunity to provide input to:
(1) Affected permittees or lessees;
(2) States having lands or responsibility for managing resources
within the affected area; and
(3) The interested public.
28. Revise Sec. 4130.4 to read as follows:
Sec. 4130.4 Authorization of temporary changes in grazing use within
the terms and conditions of permits and leases.
(a)(1) The authorized officer may authorize temporary changes in
grazing use within the terms and conditions of the permit or lease to:
(i) Respond to annual fluctuations in timing and amount of forage
production; or
(ii) Meet locally established range readiness criteria.
(2) The authorized officer will consult, cooperate and coordinate
with the permittees or lessees regarding their applications for changes
within the terms and conditions of their permit or lease.
(b) For the purposes of this subpart, ``within the terms and
conditions of the permit or lease'' means temporary changes in
livestock number, period of use, or both, that would result in grazing
use that:
(1) Results in forage removal that does not exceed the amount of
active use specified in the permit or lease; and
(2) Occurs either not earlier than 14 days before the begin date
specified on the permit or lease, and not later than 14 days after the
end date specified on the permit or lease.
(c) Permittees and lessees must apply if they wish--
(1) Not to use all or a part of their active use by applying for
temporary nonuse under paragraph (d) of this section;
(2) To activate forage in temporary nonuse; or
(3) To use forage that is temporarily available on designated
ephemeral or annual ranges.
(d)(1) Temporary nonuse is authorized--
(i) Only if the authorized officer approves in advance; and
(ii) For no longer than one year at a time.
(2) Permittees or lessees applying for temporary nonuse use must
state on their application the reasons supporting nonuse. The
authorized officer will authorize nonuse to provide for:
(i) Natural resource conservation, enhancement, or protection,
including more rapid progress toward meeting resource condition
objectives or attainment of rangeland health standards; or
(ii) The business or personal needs of the permittee or lessee.
(e) Under Sec. 4130.6-2, the authorized officer may authorize
qualified applicants to graze forage made available as a result of
temporary nonuse approved for the reasons described in paragraph
(d)(2)(ii) of this section. The authorized officer will not authorize
anyone to graze forage made available as a result of temporary nonuse
approved under paragraph (d)(2)(i) of this section.
(f) Permittees or lessees who wish to apply for temporary changes
in grazing use within the terms and conditions of their permit or lease
should file an application with BLM. The authorized officer will assess
a service charge under Sec. 4130.8-3 to process applications for
changes in grazing use that require the issuance of a replacement or
supplemental billing notice.
29. Amend Sec. 4130.5 by removing the words ``authorized'' and
``or conservation use'' from where they appear in paragraph (b)(1).
30. Amend Sec. 4130.6-2 by revising the second sentence 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, and the state having
lands or responsibility for managing resources within the area, before
issuing nonrenewable grazing permits and leases.
31. Amend Sec. 4130.8-1 by redesignating paragraphs (d), (e), and
(f) as paragraphs (f), (g), and (h), respectively, by revising
paragraph (c), adding new paragraphs (d) and (e), and revising the last
sentence of redesignated paragraph (h), to read as follows:
Sec. 4130.8-1 Payment of fees.
* * * * *
(c) Except as provided in Sec. 4130.5, the full fee will be
charged for each animal unit month of 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:
(1) Over the age of 6 months at the time of entering the public
lands or other lands administered by BLM;
(2) Weaned regardless of age; or
(3) Becoming 12 months of age during the authorized period of use.
(d) BLM will not charge grazing fees for animals that are less than
6 months of age at the time of entering BLM-administered lands,
provided that they are the progeny of animals upon which fees are paid,
and they will not become 12 months of age during the authorized period
of use.
(e) In calculating the billing, the authorized officer will prorate
the grazing fee on a daily basis and will round charges to reflect the
nearest whole number of animal unit months.
* * * * *
(h) * * * Failure to make payment within 30 days may be a violation
of Sec. 4140.1(b)(1) and will result in action by the authorized
officer under Sec. 4150.1 and subpart 4160.
32. Revise Sec. 4130.8-3 to read as follows:
Sec. 4130.8-3 Service charge.
(a) Under Section 304(a) of the Federal Land Policy and Management
Act of 1976, the service charge BLM assesses will reflect processing
costs. BLM will adjust the charge periodically as costs change, and
will inform the public of the changes by publishing a notice in the
Federal Register.
(b) Except when BLM initiates an action, the authorized officer
will assess a service charge for each of the following actions as shown
on the table below--
------------------------------------------------------------------------
Service
Action charge
------------------------------------------------------------------------
Issue crossing permit......................................... $75
Transfer grazing preference................................... 145
Cancel and/or replace a grazing fee billing................... 50
------------------------------------------------------------------------
Subpart 4140--Prohibited Acts
33. Amend Sec. 4140.1 by--
a. Removing the introductory text; and
b. Revising paragraphs (a)(2), (a)(3), the introductory text of
paragraph (b), paragraph (b)(1)(i), and paragraph (c) to read as
follows:
Sec. 4140.1 Acts prohibited on public lands.
(a) * * *
(2) Failing to make substantial grazing use as authorized for 2
consecutive fee years. This does not include approved temporary nonuse
or use temporarily suspended by the authorized officer;
[[Page 68473]]
(3) Placing supplemental feed on these lands without authorization,
or contrary to the terms and conditions of the permit or lease;
* * * * *
(b) Persons performing the following prohibited acts on BLM-
administered lands are subject to civil and criminal penalties set
forth at Sec. Sec. 4170.1 and 4170.2:
(1) * * *
(i) Without a permit or lease or other grazing use authorization
(see Sec. 4130.6) and timely payment of grazing fees;
* * * * *
(c)(1) A grazing permittee or lessee performing any of the
prohibited acts listed in paragraphs (c)(2) or (c)(3) of this section
on an allotment where he is authorized to graze under a BLM permit or
lease may be subject to the civil penalties set forth at Sec. 4170.1-
1, if:
(i) The permittee or lessee performs the prohibited act while
engaged in activities related to grazing use authorized by his permit
or lease;
(ii) 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
(iii) No further appeals are outstanding.
(2) 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.
(3) (i) 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
(ii) 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
34. Amend Sec. 4150.3 by revising the second sentence of paragraph
(e) and adding paragraph (f) to read as follows:
Sec. 4150.3 Settlement.
* * * * *
(e) * * * The authorized officer may take action under subpart 4160
to cancel or suspend grazing authorizations or to deny approval of
applications for grazing use until such amounts have been paid. * * *
(f) Upon a stay of a decision issued under paragraph (e) of this
section, the authorized officer will allow a permittee or lessee to
graze in accordance with this part pending resolution of any appeal.
Subpart 4160--Administrative Remedies
35. Amend Sec. 4160.1 by adding paragraph (d) to read as follows:
Sec. 4160.1 Proposed decisions.
* * * * *
(d) A biological assessment or biological evaluation prepared for
purposes of an Endangered Species Act consultation or conference is not
a decision for purposes of protest or appeal.
36. Amend Sec. 4160.3 by removing paragraphs (c), (d), and (e), by
redesignating paragraph (f) as paragraph (c), and by revising
redesignated paragraph (c) to read as follows:
Sec. 4160.3 Final decisions.
* * * * *
(c) 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,
the Interior Board of Land Appeals, or an administrative law judge, to
provide that the decision becomes effective immediately as provided in
Sec. 4.21(a)(1) of this title.
37. Revise Sec. 4160.4 to read as follows:
Sec. 4160.4 Appeals.
(a) Those who wish to appeal or seek a stay of a BLM grazing
decision must follow the requirements set forth in Sec. 4.470 et seq.
of this title. The appeal or petition for stay must be filed with the
BLM office that issued the decision within 30 days after its receipt or
within 30 days after the proposed decision becomes final as provided in
Sec. 4160.3(a).
(b) When OHA stays implementation of a decision described in
paragraph (b)(1) or (b)(2) of this section, the immediately preceding
authorization and any terms and conditions therein will not expire, and
the permittee, lessee, or preference applicant may continue to graze
under the immediately preceding grazing authorization, subject to any
relevant provisions of the stay order and Sec. 4130.3(b), and except
as provided in paragraph (c) of this section. This paragraph applies to
decisions that:
(1) Change the terms and conditions of a permit or lease during the
current term;
(2) Offer a permit or lease to a preference transferee with terms
and conditions that are different from the permit or lease terms and
conditions that are most recently applicable to the allotment or
portion of the allotment in question; or
(3) Renew a permit or lease with changed terms and conditions.
(c) When OHA stays implementation of a decision described in
paragraphs (c)(1) through (c)(4) of this section, the authorized
officer, notwithstanding paragraph (b) of this section, will authorize
grazing consistent with the final decision when the decision:
(1) Modifies a permit or lease because of a decrease in public land
acreage available for grazing (see Sec. 4110.4-2);
(2) Affects an application for grazing use of BLM-designated
ephemeral or annual rangeland;
(3) Affects an application for additional forage temporarily
available under Sec. 4110.3-1(a); or
(4) Affects an application for a grazing permit or lease that is
not made in conjunction with a preference transfer application (see
Sec. 4110.2-3(d)).
Subpart 4170--Penalties
38. Revise Sec. 4170.1-2 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
[[Page 68474]]
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 active use the
permittee or lessee has failed to use.
Subpart 4180--Fundamentals of Rangeland Health and Standards and
Guidelines for Grazing Administration
39. Amend Sec. 4180.1 by revising the introductory text and
paragraph (d) to read as follows:
Sec. 4180.1 Fundamentals of rangeland health.
Where standards and guidelines have not been established under
Sec. 4180.2(b), and the authorized officer determines that grazing
management needs to be modified to assist in achieving the following
conditions, the authorized officer will take appropriate action as soon
as practicable under Sec. 4180.2 but not later than the start of the
grazing year that follows BLM's completion of relevant and applicable
requirements of law and regulations and the consultation requirements
of Sec. Sec. 4110.3-3 and 4130.3-3:
* * * * *
(d) Habitats are, or are making significant progress toward being,
restored or maintained for Federal threatened and endangered species,
Federal proposed or candidate threatened and endangered species, and
other at-risk and special status species.
40. Amend Sec. 4180.2 by removing the semicolon at the end of
paragraph (e)(12) and adding in its place a period, by revising
paragraph (c), the introductory text of paragraph (d), paragraph
(d)(4), paragraph (e)(9), the introductory text of paragraph (f), and
paragraph (f)(2)(viii), to read as follows:
Sec. 4180.2 Standards and guidelines for grazing administration.
* * * * *
(c)(1) If the authorized officer determines through standards
assessment and monitoring 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, the authorized officer will, in
compliance with applicable laws and with the consultation requirements
of this part, formulate, propose, and analyze appropriate action to
address the failure to meet standards or to conform to the guidelines
not later than 24 months after the determination. The requirements of
this paragraph are met when the parties execute an applicable and
relevant documented agreement or the authorized officer issues an
applicable final decision under Sec. 4160.3.
(2) Upon executing the agreement or in the absence of a stay of the
final decision, the authorized officer will implement the appropriate
action as soon as practicable, but not later than the start of the next
grazing year.
(3) The authorized officer will take appropriate action as defined
in this paragraph by the deadlines established in paragraphs (c)(1) and
(c)(2) of this section. Appropriate action means implementing actions
pursuant to subparts 4110, 4120, 4130, and 4160 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 and regional standards developed or revised
under paragraphs (a) and (b) of this section must address the
following:
* * * * *
(4) Habitat for endangered, threatened, proposed, candidate, or
other at-risk or special status species; and
* * * * *
(e) * * *
(9) Restoring, maintaining or enhancing habitats of Federal
proposed, Federal candidate, and other at-risk and special status
species to promote their conservation;
* * * * *
(f) 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 will apply and will be implemented in accordance
with paragraph (c) of this section.
* * * * *
(2) * * *
(viii) Conservation of Federal threatened or endangered, proposed,
candidate, and other at risk or special status species is promoted by
the restoration and maintenance of their habitats;
* * * * *
[FR Doc. 03-30264 Filed 12-5-03; 8:45 am]
BILLING CODE 4310-84-P