Grazing AdministrationExclusive of Alaska

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:

Final rule.

SUMMARY:

The Bureau of Land Management (BLM) amends its regulations concerning how BLM administers livestock grazing on public lands. The changes ensure that BLM documents its consideration of the social, cultural, environmental, and economic consequences of grazing changes; provide that changes in grazing use will be phased in under certain circumstances; allow permittees, lessees, and others to share title to range improvements with BLM in certain circumstances; make clear how BLM will authorize grazing if a BLM decision affecting a grazing permit is stayed pending administrative appeal; 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 rangelands do 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 service charges. We intend these changes to contribute to improving working relationships with permittees and lessees, protecting the health of the rangelands and increasing administrative efficiency and effectiveness.

EFFECTIVE DATE:

August 11, 2006.

ADDRESSES:

You may send inquiries or suggestions to Director (220), Bureau of Land Management, Room 204 LS, Eastern States Office, 7450 Boston Boulevard, Springfield, Virginia 22153.

FOR FURTHER INFORMATION CONTACT:

Ken Visser, Rangeland Management Specialist, Rangeland, Soils, Water and Air Group, (775) 861-6492, or Ted Hudson (202) 452-5042 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. Background

A. History

B. Why We Are Amending the Regulations

C. Rules of Construction: Words and Phrases

II. Changes Made Since the Proposed Rule

III. Record of Decision Under the National Environmental Policy Act

A. Decisions

B. Alternatives Considered

C. Environmentally Preferable Alternative

D. Decision Rationale

1. Analysis and Documentation of Social, Economic, and Cultural Effects

2. Phase-in of Changes in Active Use of More Than 10 Percent

3. Sharing Title to Permanent Range Improvements

4. Cooperation With Tribal, State, County, and Local Government-Established Grazing Boards

5. Removal of Temporary Nonuse Limit

6. Requiring Assessments and Monitoring for Determinations on Standards and Guidelines

7. Time Frame for Taking Action

8. Conservation Use

9. Definitions of Preference, Active Use, and Removal of Permitted Use

10. Interested Public

11. Water Rights

12. Satisfactory Performance of Applicants

13. Temporary Changes in Grazing Use Within the Terms and Conditions of a Permit or Lease, Including Temporary Nonuse

14. Service Charges

15. Prohibited Acts

16. Decisions on Ephemeral or Annual Rangeland Grazing Use and Nonrenewable Permits

17. Effect on Grazing Use When an Administrative Stay Has Been Granted on an Appeal of a Decision Associated With Changes to a Permit or Lease or Grazing Preference Transfers

18. Biological Assessments and Evaluations Are Not Decisions and Therefore Not Subject To Protest or Appeal

IV. Response to General Comments

A. The Regulatory Process

B. General Support

C. General Opposition

D. Purpose and Need for Rulemaking

E. Environmental Effects of the Rule

F. Alternatives Considered

G. Cross-Cutting Issue-Related Comments

1. Role of the Interested Public

2. Land Use and Allotment Management Planning

3. Monitoring

4. Enforcement

H. Other Recommendations

1. Advisory Councils and Grazing Advisory Boards

2. Wild Horses and Burros

3. Reserve Common Allotments

4. Incentives for Good Stewardship

5. Encouraging Flexible Management

6. Determining Appropriate Technical Procedures

7. Access to Public Lands

8. Judicial Matters

9. Interagency Cooperation

V. Section-by-Section Analysis and Response to Comments

VI. Procedural Matters

I. Background

A. History

BLM administers livestock grazing on BLM lands within the continental United States under the regulations found at 43 CFR part 4100. Statutory authority for these regulations includes 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 of 1976 (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.

Section 202 of FLPMA requires the development and maintenance of land use plans for public lands. BLM land use plans are designed to provide guidance for future management actions and the development of subsequent, more detailed and limited-scope plans for resources and uses. Land use plans are developed under the multiple-use and sustained-yield mandate of FLPMA. Land use plans identify 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, the grazing regulations, and other applicable laws.

Since the first set of grazing regulations was issued after passage of the TGA in 1934, the regulations 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. Major changes made to the regulations in 1995 included the following:

• 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 allocated by or under the guidance of an applicable land use plan, and authorized by grazing permits or leases;

• Provided that BLM could issue a “conservation use” permit to authorize permittees not to graze their permitted allotments;

• Limited authorized temporary nonuse to 3 consecutive years;

• Required grazing fee surcharges for permittees who do not own the livestock that graze under their permits;

• Provided that the United States holds 100 percent of the vested title to permanent range improvements, such as fences, wells, and pipelines, constructed under cooperative agreements dated after August 21, 1995, rather than proportionately sharing title with the cooperators;

• Required livestock operators and BLM to use cooperative agreements to authorize new permanent water developments, instead of allowing some water developments to be authorized under range improvement permits;

• Provided that after August 21, 1995, any water right acquired on public land to be used for livestock watering on public land must be acquired, perfected, maintained, and administered under substantive and procedural laws of the state where the land is located, and that such water rights are to be acquired in the name of the United States, to the extent allowed by the law of the state;

• Established fundamentals of rangeland health; and

• 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.

Soon after the grazing regulations took effect on August 21, 1995, a lawsuit was filed challenging the validity of several of the new regulations. All challenged provisions except “conservation use” (see the second bullet, above) were upheld.

Public Lands Council

v.

Babbitt,

167 F.3d 1287 (10th Cir. 1999),

aff'd,

529 U.S. 728 (2000).

On March 3, 2002, 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

(68 FR 9964-9966 and 10030-10032, respectively). These notices requested public comment and input to assist BLM with the scoping process for the 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 (DEIS). The meetings were held during March 2003 in Albuquerque, New Mexico; Reno, Nevada; Billings, Montana; and Washington, DC. BLM received approximately 8,300 comments on the ANPR and the NOI. The majority of these were varying types of form letters.

We considered many of the issues that the public raised during the scoping period and discussed several of them as alternatives in the DEIS. We did not address, however, some of the issues that comments raised, because they were either beyond the scope of the document, did not meet the basic goals of these proposed changes to the regulations, or BLM decided we could better address the issues through internal policy changes. We listed and discussed these issues in the proposed rule (68 FR 68455), and in section 1.3.2 of the DEIS, and there is no need to repeat them here.

We published the proposed rule on December 8, 2003 (68 FR 68452), inviting public comments until February 6, 2004. On January 16, 2004, we published a notice to extend the comment period to March 2, 2004 (69 FR 2559). BLM held six public meetings in late January and early February, 2004, to provide the public an opportunity to comment on the proposed rule. Meetings were held in Salt Lake City, Utah; Phoenix, Arizona; Boise, Idaho; Billings, Montana; Cheyenne, Wyoming; and Washington, DC. Approximately 250 individuals attended the public meetings and 95 provided oral comments. These were transcribed and can be viewed on the BLM web site at

www.blm.gov/grazing.

We received about 18,000 comment letters and electronic communications. Most of the comments were form letters or emails. An exact count of the comments is not available because of the large amount of duplication among the comments due to individuals or entities submitting identical comments multiple times or via different media. We did not attempt to keep track of all the duplications, although we observed many. You may view comment letters, including scanned images of faxes and handwritten letters, on BLM's regulatory comment system accessible at

www.blm.gov/nhp/news/regulatory/index.html.

B. Why We Are Amending the Regulations

The grazing regulations are being amended based largely on lessons learned in implementing the 1995 regulations. Other changes are designed to improve clarity, ensure internal consistency, and address the 10th Circuit holding regarding “conservation use” permits.

Many changes have been made in livestock grazing management and practices to improve the health of the public rangelands since the passage of the TGA in 1934 and FLPMA in 1976. The final rule recognizes the many benefits of livestock grazing on public lands, including its social and economic contributions to rural communities and its preservation of open space in the rapidly growing West, as well as the importance of maintaining healthy rangelands and wildlife habitat.

When we developed this final rule, we considered whether the changes facilitated improving working relations with grazing permittees and lessees, protecting the health of rangelands, or increasing administrative efficiency and effectiveness. The changes in the final rule enhance BLM's ability to accomplish each of these objectives.

The major changes in the final rule are listed below by objective.

Improving Working Relations With Grazing Permittees and Lessees

• Require BLM to follow a consistent approach in analyzing and documenting the relevant social, economic, and cultural effects of proposed changes in grazing preference and incorporate such analyses into appropriate National Environmental Policy Act (NEPA) documents.

• Require phase-in of changes in grazing use of more than 10 percent over a 5-year period, consistent with relevant law.

• Provide for joint ownership of range improvements—changes would allow BLM and a grazing permittee, or other cooperator, to share title to certain structural range improvements, such as fences, wells, or pipelines, if they are constructed under a Cooperative Range Improvement Agreement.

• Require BLM to cooperate with Tribal, state, county, and local

government-established grazing boards in reviewing range improvements and allotment management plans on public lands.

Protecting the Health of Rangelands

• Remove the 3-consecutive-year limit on temporary nonuse of a grazing permit but continue to require BLM to review nonuse annually to make sure it is still necessary, whether for resource conservation, enhancement, or protection, or for personal or business purposes.

• Provide that a standards assessment will be used by the authorized officer to gauge whether rangeland is failing to achieve standards or that management practices do not conform to the guidelines, and where assessments indicate failure to achieve standards or to conform with guidelines, require BLM to use existing or new monitoring data to identify the factors that significantly contribute to failing to achieve standards or conform with guidelines.

• Provide additional time after a determination that grazing practices or levels of use are significant factors in failing to achieve standards and conform to guidelines for BLM to formulate, propose, and analyze actions; to comply with all applicable laws; and to complete all consultation, cooperation, and coordination requirements before reaching a final decision on appropriate actions.

Increasing Administrative Efficiency and Effectiveness

• Eliminate the “conservation use” permit regulatory provisions to comply with the Tenth Circuit Court of Appeals decision in

Public Lands Council

v.

Babbitt,

167 F.3d 1287 (10th Cir. 1999),

aff'd on other grounds,

529 U.S. 728 (2000).

• Expand the definition of “grazing preference” to include an amount of forage on public lands attached to a rancher's private base property, which can be land or water. This expanded definition, similar to one that existed from 1978 to 1995, makes clear that grazing preference has a quantitative meaning (forage amounts, measured in Animal Unit Months (AUMs)) as well as a qualitative one (priority of position “in line” for grazing privileges).

• Modify the definition of “interested public” to ensure that only those individuals and organizations who actually participate in the process are maintained on the list of interested publics. (The regulations with respect to the interested public are also revised to improve efficiency in BLM's management of public lands grazing by reducing the occasions in which the Bureau is required to involve the interested public. Under this provision, BLM could involve the public in such matters as day-to-day grazing administration, but would no longer be required to do so. BLM would continue to require consultation, cooperation, and coordination with the interested public in grazing planning activities such as allotment management planning or range improvement project or program planning.)

• Provide flexibility to the Federal government in decisions relating to livestock water rights by removing the requirement that, if BLM acquires water rights for livestock watering on public land under state law, BLM must acquire, perfect, maintain, and administer those water rights in the name of the United States where allowed by State law.

• Clarify that an applicant for a new permit or lease will be deemed to have a record of satisfactory performance when the applicant has not had any Federal or state 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 a court of competent jurisdiction has not barred the applicant or an affiliate from holding a Federal grazing permit or lease.

• Clarify what is meant by “temporary changes in grazing use within the terms and conditions of permits and lease.” Under the 1995 regulations, BLM can approve temporary changes in grazing use within the terms and conditions of a permit or lease. The final rule clarifies that “temporary changes in grazing use within the terms and conditions” means temporary changes to livestock number, period of use, or both, that would result in nonuse or in grazing use where forage removal does not exceed the amount of active use specified in the permit or lease, and such grazing use occurs 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, unless otherwise specified in the appropriate allotment management plan.

• Increase certain service charges to reflect more accurately the cost of grazing administration.

• Clarify that if a permittee or lessee is convicted of violating a Federal or state law or regulation, and if the violation occurs while he is engaged in grazing-related activities, BLM may take action against his grazing permit or lease only if the violation occurred on the BLM-managed allotment where the permittee or lessee is authorized to graze.

• Provide the authority for BLM to issue an immediately effective decision on non-renewable grazing permits or leases or on applications for grazing use on designated ephemeral or annual rangelands. Under the final rule, if a stay on an appeal of such a decision is granted, the decision would be inoperative and, if appropriate considering the specific stay, the livestock may have to be removed from the allotment.

• Clarify how BLM will authorize grazing when the Office of Hearings and Appeals (OHA) stays all or part of a BLM grazing decision affecting a permit or lease. Such decisions may:

• Cancel, suspend or change terms and conditions of a permit or lease during its current term,

• Renew a permit or lease, or

• Grant or deny a permit or lease to a preference transferee.

Under the final rule, if OHA stays all or part of such a decision, then BLM will, with respect to any stayed portions of the decision, authorize grazing use on the allotment(s) or portions of the allotment(s) in question pursuant to terms or conditions that are the same as the permit or lease that immediately preceded BLM's decision, subject to any other provisions of the stay order.

• Clarify that a biological assessment or biological evaluation, prepared in compliance with the Endangered Species Act (ESA), is not a decision and therefore is not subject to protest or appeal.

• Provide that the primary function of the fundamentals of rangeland health is to describe land condition goals and to guide development of the Standards and Guidelines that must be implemented to ensure that the conditions described by the fundamentals of rangeland health exist.

The reasons for the changes in the final rule are described in the Record of Decision in Part III of this preamble.

C. 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 final rule.

II. Changes Made Since the Proposed Rule

This part of the preamble describes briefly the changes we made since the proposed rule as a result of comments and our own review. A reader who is interested in a quick overview of the changes we made between the proposed and final rules may find this part useful. However, if you are looking for a detailed description of all the final rule changes from the existing regulations, you should look at the section-by-section analysis which appears later in this preamble.

Section 4100.0-5 Definitions

We changed the definition section in several respects in the final rule.

Active use.

In this definition, we have substituted the word “livestock” for “rangeland” in the reference to carrying capacity. The change makes the definition consistent with all other references to “carrying capacity” in the rule.

District.

We have amended the definition for the term “District” to update the regulations as to the organization of BLM field offices.

Ephemeral rangelands.

We have revised the definition for this term by removing the misstatement that production of sufficient forage by ephemeral range was necessarily unusual.

Interested public.

We amended this section to make it clear that, in a request to be considered a member of the interested public, a person must identify the specific allotments in which the person or entity is interested. We also added language providing that when members of the interested public submit comments or otherwise participates, they must address the management of a specific allotment.

Subpart 4110 Qualifications and Preference

Section 4110.2-3 Transfer of Grazing Preference

In the final rule we amended this section to make it clear that a transfer application must show the base property and the grazing preference attached to that base property.

We also removed the phrase “if the applicant leases the base property” from the second sentence of paragraph (c), and removed the third sentence entirely. This will clarify that anyone with an interest in the base property, not just an owner who is leasing the property to the preference holder, must provide written consent before a preference transfer can take place. The third sentence addressed a situation unique to the historical origins of grazing preference that is no longer applicable.

Section 4110.3 Changes in Grazing Preference

We amended paragraph (a)(2) of section 4110.3 to make it clear that BLM can make changes in grazing preference to assist in making progress toward restoring ecosystems to properly functioning conditions. We also amended paragraph (c) to make it clear that the analysis of social, economic, and cultural factors that BLM will perform before changing preference will be under NEPA (42 U.S.C. 4332).

Section 4110.3-1 Increasing Active Use

In the final rule we have added language in the introductory text of section 4110.3-1 to make it clear that decisions increasing active use are also based on monitoring or documented field observations, just as decisions decreasing active use must be. Changes in preference, whether increases or decreases, already must be supported by monitoring or documented field observations.

We have also amended paragraphs (a) and (b) to make it clear that BLM must determine that additional forage is available for livestock, as opposed to other consumption or use, before we can authorize livestock grazing use of it on a temporary or sustained-yield basis.

Section 4110.3-3 Implementing Changes in Active Use

We amended section 4110.3-3 in the final rule in 3 respects:

• We changed “shall” to “will” in paragraph (b)(1) to reflect standard usage in BLM regulations. This change has no practical effect on the obligatory nature of the provision.

• We added the word “or” in paragraph (b)(1)(i) as a grammatical correction.

• We corrected a cross-reference in paragraph (b)(ii).

Section 4120.2 Allotment Management Plans and Resource Activity Plans

In section 4120.2(c), we changed “shall” to “will” to reflect standard usage in BLM regulations. This change has no practical effect on the obligatory nature of the provision.

Section 4120.3-1 Conditions for Range Improvements

In section 4120.3-1(f), we changed “shall” to “will” to reflect standard usage in BLM regulations. This change has no practical effect on the obligatory nature of the provision.

Section 4120.3-2 Cooperative Range Improvement Agreements

We further amended paragraph (b) by adding the word “will” to make it clear that shared ownership of range improvements is not merely descriptive but regulatory and prospective.

Section 4120.3-3 Range Improvement Permits

We have revised paragraph (c) of section 4120.3-3 for purposes of clarification. The language in the existing text is unnecessarily convoluted and confusing. The point of the paragraph is to set the stage for what this part of the regulations is really about: if BLM lets a third party graze on your allotment, how do we address the use and maintenance of range improvements occurring on that allotment? We also removed a reference to conservation use.

Section 4120.5-2 Cooperation With Tribal, State, County, and Federal Agencies

In the final rule, we have amended the introductory text and added paragraph (c) of section 4120.5-2 to add Tribal grazing boards to the list of entities with which we will cooperate, and to make it clear that BLM is formally required to cooperate only with Tribal, state, county, or local grazing boards that are established under Tribal or government authority, as opposed to private organizations that might assume the title “grazing board.” We also added “Tribal agencies” to the section heading and to the general provisions on cooperation.

Section 4130.1-1 Filing Applications

We further amended paragraph (b) of section 4130.1-1 to correct an unintentional flaw, in that the paragraph seemed to refer to renewal of new permits. We are also making it clear in paragraph (b)(2) that the section refers to permits and leases that authorize use of new or transferred preference.

Section 4130.3 Terms and Conditions

In the final rule, we amended proposed section 4130.3 by removing paragraphs (b)(1) and (b)(2) in response to comments. Paragraph (b)(1) referenced terms and conditions that are not subject to review by OHA, and identified terms and conditions derived from biological opinions as an example. Paragraph (b)(2) restricted the right of appeal and protest where it was not necessary to do so. We also amended

paragraph (c) to make clear how BLM would authorize grazing if BLM made numerous changes in terms and conditions of a permit or lease, and upon an appellant's petition, OHA stayed only one or a portion of them. In this circumstance, BLM would authorize use, with respect to the stayed terms and conditions, according the comparable terms and conditions that were in effect prior to BLM's decision to change them in combination with the changed terms and conditions that were not stayed by OHA.

Section 4130.3-2 Other Terms and Conditions

In the proposed rule, we amended section 4130.3-2 by removing paragraph (h), which provides that the authorized officer may include in permit and lease terms and conditions a statement disclosing the requirement that permittees and lessees shall provide administrative access across private and leased lands if it is necessary for the orderly management and protection of public lands. In response to public comments, we have restored paragraph (h) in this final rule. (We did this by removing the amendatory text that appeared in the proposed rule directing the removal of paragraph (h). Thus, although the regulatory text in this final rule contains no mention of section 4130.3-2, the effect of the final rule is to leave paragraph (h) intact.)

Section 4130.3-3 Modification of Permits or Leases

We removed the words “biological assessments or biological evaluations prepared under the Endangered Species Act, and other” from section 4130.3-3(b), because it is unnecessary to highlight biological assessments and biological evaluations as examples of reports during the preparation of which BLM seeks input from affected permittees, lessees, states, and the interested public. We added the word “otherwise” in paragraph (b) because increasing or decreasing grazing use is a change in terms and conditions of a grazing permit or lease. Without the word, the paragraph seems to read that such an increase or decrease is not a change in terms and conditions.

Section 4130.4 Authorization of Temporary Changes in Grazing Use Within the Terms and Conditions of Permits and Leases, Including Temporary Nonuse

In the final rule, we added “temporary nonuse” to the heading of section 4130.4 as a convenience to readers. We also removed language in paragraph (a) of the section listing reasons for allowing temporary changes in grazing use within the terms and conditions of the grazing authorization.

We have amended paragraph (d)(2) of section 4130.4 of the proposed rule, which becomes paragraph (e)(2) in the final rule, by changing the word “will” to “may” in order to avoid an interpretation of this provision that BLM has no discretion to deny temporary nonuse.

We also amended paragraph (f) of the proposed rule, which becomes paragraph (g) in the final rule, to provide that permittees or lessees “must” apply if they need temporary changes in grazing use. The proposed rule stated that they “should” apply. The final rule also makes it clear that such an application must be in writing.

We amended paragraph (b) to recognize that the same application may cover both temporary nonuse and removal of forage either before the begin date or after the end date, and to allow such changes that conform to flexibility limits specified in an allotment management plan under § 4120.2(a)(3) despite the 14 day limit.

Finally, we reordered the paragraphs in the section more logically, redesignating paragraph (a)(2) as (c) and adjusting the succeeding paragraph designations accordingly, and made editorial changes for purposes of clarity.

Section 4130.6-2 Nonrenewable Grazing Permits and Leases

In the final rule, we redesignated the proposed text as paragraph (a) and added a new paragraph (b) allowing BLM to make a decision issuing a nonrenewable grazing permit or lease, or affecting an application for grazing use on annual or designated ephemeral rangelands, effective immediately or on a date established in the decision.

For purposes of clarity and ease of usage, in the final rule we have amended the first sentence of section 4130.6-2(a) by adding a cross-reference to section 4110.3-1(a), which provides for the disposition of additional forage temporarily available.

Section 4130.8-1 Payment of Fees

In the final rule we further amended paragraph (h) of section 4130.8-1 to make it clear that failure to make payment within 30 days is a violation of a prohibited act in section 4140.1 and may result in enforcement action.

Section 4130.8-3 Service Charges

In the final rule we added language to paragraph (a) of section 4130.8-3 providing that BLM will adjust the service charges periodically as costs change, and publish notice thereof in the

Federal Register,

and revised paragraphs (a) and (b) for clarity. We also restored supplemental grazing fee billings to the list of services for which BLM imposes a service charge.

Section 4140.1 Acts Prohibited on Public Lands

In the final rule we made an editorial change in section 4140.1(a)(2) for purposes of clarity, and corrected a typographical error in section 4140.1(c)(3)(ii).

Section 4150.2 Notice and Order To Remove

In the final rule we corrected an erroneous cross-reference in paragraph (d).

Section 4150.3 Settlement

In the final rule, we amended new paragraph (f) of section 4150.3 to make it clear that “this part” refers to all of part 4100 and that grazing will continue pending completion of the administrative appeal process, as opposed to resolution of judicial appeals.

Section 4160.1 Proposed Decisions

In the final rule, we added necessary cross-references to paragraph (c) of section 4160.1, which was not amended in the proposed rule. These additions conform the paragraph to the addition of section 4130.6-2(b) in this rule, and the addition of section 4190.1(a) in a previous final rule (68 FR 33804, June 5, 2003).

Section 4160.3 Final Decisions

In the final rule, we also added necessary cross-references to paragraph (c) of section 4160.3 to conform the paragraph to the addition of section 4130.6-2(b) in this rule, and the addition of section 4190.1(a) in a previous final rule (68 FR 33804, June 5, 2003).

Section 4160.4 Appeals

In response to comments by OHA and others, we have removed § 4160.4(c) in the final rule, and simplified paragraph (b). We have revised § 4160.4(b)(1), (2), and (3) to clarify that, when OHA stays all or part of a decision modifying or renewing a grazing permit or lease, or a decision offering or denying a permit or lease to a preference transferee, grazing may proceed, with respect to the portions of the decision that were stayed, under comparable terms and conditions of the permit or lease that immediately preceded the decision that was stayed, subject to any relevant provisions of the stay order.

Section 4180.1 Fundamentals of Rangeland Health

We have removed the language from the introductory text of this section that requires BLM to modify grazing management to ensure that the conditions described by the fundamentals of rangeland health exist only where standards and guidelines have not been established under section 4180.2, and added in its place a characterization of the purpose of the fundamentals of rangeland health.

We have also amended paragraph (d) of section 4180.1 to remove the reference to “at-risk” species.

Section 4180.2 Standards and guidelines for grazing administration.

As in section 4180.1, in section 4180.2 also we have removed references to “at-risk” species in paragraphs (d)(4), (e)(9) and (f)(2)(viii). We also changed “or” to “and” before the phrase “other special status species” in (d)(4).

We have added language in section 4180.2(b) allowing BLM to extend the deadline for making a decision following a determination when legally required processes that are the responsibility of another agency prevent completion within 24 months.

Finally, we made procedural changes in paragraph (c) to provide that if a standards assessment indicates to the authorized officer that the rangeland is failing to achieve standards or that management practices do not conform to the guidelines, then the authorized officer will use existing or new monitoring data to identify the significant factors that contribute to failing to achieve the standards or to conform with the guidelines.

III. Record of Decision Under the National Environmental Policy Act

This preamble constitutes BLM's record of decision, as required under the Council on Environmental Quality regulations at 40 CFR 1505.2. The decision is based on the proposed action and alternatives presented in the Final Environmental Impact Statement, “Revisions to Grazing Regulations for the Public Lands.”

A. Decisions

After considering all relevant issues, alternatives, potential impacts, and management constraints, BLM selects the Proposed Action, Alternative 2, in the Final EIS for implementation. Alternative 2 changes the existing grazing regulations in several areas as follows:

• A new provision requiring BLM to analyze and, if appropriate, document the relevant social, economic, and cultural effects as part of the NEPA analysis of proposed actions to change grazing preference;

• An amendment providing that, generally, changes in active use greater than 10 percent will be phased in over 5 years consistent with existing law;

• An amendment providing for proportional sharing of title to permanent range improvements between BLM and a cooperator, based on initial contribution to construction and installation;

• A new provision for cooperation with Tribal, state, county or local government-established grazing boards in reviewing range improvements and allotment management plans on public land;

• An amendment removing the 3-consecutive-year limit on temporary nonuse and substituting a provision for annual review of temporary nonuse.

• An amendment making BLM's finding that existing grazing management practices or levels of grazing use on public lands are significant factors in failing to achieve range health standards or conform with grazing management guidelines a two-step process. The authorized officer will use a standards assessment to gauge whether rangeland is failing to achieve standards or management practices do not conform to the guidelines, and, if this is the case, he will use existing or new monitoring data to identify the significant factors contributing to not meeting standards or conforming with guidelines.

• An amendment providing BLM up to 24 months after making a determination that grazing practices or levels of use are significant factors in failure to achieve standards or conform to guidelines, (1) to formulate, propose, and analyze appropriate action, (2) to comply with all applicable laws, and (3) to complete all consultation, cooperation, and coordination requirements before reaching a final decision on the appropriate action. The amendment allows for additional time beyond 24 months if necessary to meet legal obligations that are the responsibility of another agency.

• An amendment removing the provision that requires BLM to modify grazing management to ensure that the conditions described by the fundamentals of rangeland health exist. This amendment recognizes that BLM relies on evaluation of achievement of the standards of rangeland health and conformance with grazing management guidelines to determine whether grazing management needs to be modified in order to achieve the general descriptions of land health described by the Fundamentals.

• Amendments removing “conservation use” permit regulatory provisions throughout the grazing regulations in accordance with

Public Lands Council

v.

Babbitt, supra;

• An amendment revising the definition of “grazing preference” to mean, in addition to a priority position against others for the purpose of receiving a permit or lease, the total number of AUMs on public lands apportioned and attached to base property owned or controlled by a permittee, a lessee, or an applicant for a permit or lease. Grazing preference includes active use and use held in suspension. Related to this change, we also removed the definition of “permitted use” from the regulations;

• Amendments revising the definition and role of the “interested public” to ensure that only those individuals and organizations who actually participate in the process are maintained on the list of interested publics, and to improve efficiency by reducing the occasions in which BLM is mandated to involve the interested public;

• An amendment removing the requirement that, if livestock water rights are acquired under state law, they must be acquired, perfected, and maintained in the name of the United States;

• An amendment clarifying the criteria that BLM considers when determining whether an applicant for a new permit or lease or a transfer of grazing preference has a satisfactory record of performance;

• An amendment defining the meaning of “temporary changes in grazing use within the terms and conditions of the permit or lease” and describing when and how BLM authorizes temporary changes in grazing use;

• An amendment raising service charges for a crossing permit, transfer of preference, and cancellation and replacement of a grazing fee billing;

• An amendment limiting the applicability of certain prohibited acts to those allotments where the permittee or lessee is authorized to graze;

• An amendment providing authority for BLM to issue immediately effective decisions on nonrenewable grazing permits or leases or on decisions affecting applications for grazing use on designated ephemeral or annual rangelands;

• An amendment clarifying the effect of an administrative stay on a decision to modify or renew a grazing permit or lease, or a decision to offer or deny a

permit or lease to a preference transferee; and

• An amendment clarifying that a biological assessment or evaluation prepared for a Section 7 consultation under the ESA is not a decision for purposes of protest or appeal.

Additional amendments are also effected by this decision. They are identified in the Preamble, Part V. Section-by-Section Analysis and Response to Comments, as well as in the regulatory text in this final rule.

One comment on the DEIS stated that BLM “subverted” the NEPA process by issuing the DEIS after the proposed rule was published and rewriting an earlier draft.

We discuss this comment in detail under Response to General Comments, General Opposition, section IV.C. of this preamble.

B. Alternatives Considered

BLM considered three alternatives in the EIS to address issues that were raised by the public during the EIS scoping period and issues that surfaced during implementation of the 1995 regulations. Alternatives were developed for 18 issues and combined. As stated in the EIS, the regulatory changes are narrow in scope, do not include changes in grazing fees or the fundamentals of rangeland health, or the standards and guidelines for grazing administration, and otherwise leave the majority of the 1995 regulatory changes in place. The changes that are analyzed address specific issues and concerns that have come to BLM's attention. These issues and concerns came to the fore as areas where BLM could improve working relations with permittees and lessees, protect the health of the rangelands, and improve administrative efficiency and effectiveness, including resolution of legal issues. The alternatives included Alternative 1, the required “no action” alternative, which would have retained the 1995 regulations, Alternative 2, the proposed action alternative, and Alternative 3, the modified action alternative.

The following is a brief description of the alternatives:

Alternative 1, No Action

—This alternative would not have changed the regulations. Its consideration is required under NEPA.

Alternative 2, Proposed Final Regulations

—This alternative is BLM's proposed action and the agency's “preferred alternative.” We modified the alternative between the draft and final EIS in response to public comments. This alternative represents BLM's preferred regulatory approach after the agency considered the results of public scoping and comments on the December 2003 proposed rule.

Alternative 3—Modified Action Alternative

—This alternative differs from the preferred alternative in several respects:

• The 5-year phase-in of changes in use greater than 10 percent would have been discretionary rather than mandatory,

• Temporary nonuse would have been limited to 5 years rather than the current limit of 3 years,

• BLM would not have been required to use both assessments and monitoring as bases for determinations of rangeland health,

• Prohibited acts would have included failure to use certified weed seed free forage, grain, straw or mulch when required by BLM,

• The third category of prohibited acts, which pertain to violations of certain Federal or state laws or regulations, would have been removed from the regulations.

C. Environmentally Preferable Alternative

The Council on Environmental Quality's regulations for implementing NEPA (40 CFR 1505.2(b)) require that the Record of Decision specify the environmentally preferable alternative.

We determined the environmentally preferable alternative to be the Proposed Action (Alternative 2). The Proposed Action provides for the beneficial use of the public lands for livestock grazing while maintaining and improving the health of the land. The reasons why we determined the Proposed Action to be environmentally preferable to each of the alternatives are listed below.

The Proposed Action may result in more short-term adverse impacts in some areas than under the No Action alternative. However, it is expected to result in more beneficial long-term impacts than either the No Action alternative or the Modified Action Alternative (Alternative 3).

We determined that the Proposed Action is environmentally preferable to the No Action alternative for the following reasons:

• Under the Proposed Action a standards assessment will be used by the authorized officer to assess whether rangeland is failing to achieve standards or that management practices do not conform to the guidelines. BLM will use standards assessment and existing or new monitoring data to identify significant contributing factors in failing to achieve standards or conform with guidelines. The No Action alternative does not require monitoring. Use of monitoring data will enable more rigorous scientific analyses. As a result changes in range management actions will be more effective and decisions to increase or decrease active use will be more sustainable and less vulnerable to appeal.

• The Proposed Action allows up to 24 months (or longer if necessary to accommodate legally-required processes of another agency) following a determination on rangeland standards for BLM to formulate, propose, and analyze the appropriate action. This will allow BLM to complete required analyses and consultations, and provide additional time to collaborate with the permittee/lessee to examine alternatives and select the best solution for a sustainable decision with more acceptance from the permittee/lessee and more effective action to change grazing management to improve resource conditions. We expect the added collaboration to result in decisions that are less likely to be appealed. This will also allow more time to complete any necessary NEPA analysis and to ensure compliance with all applicable and relevant laws and regulations. BLM believes that adoption of the proposed rule will lead to improved land conditions in the long-term as indicated in the analysis in section 4.5 of the Addendum to the EIS. That analysis states that some adverse impacts are unavoidable, but in the long-term better and more sustainable decisions would be developed by using monitoring.

• The 5-year phase-in of reductions in active use of greater than 10 percent (which will likely be required on only a small percentage of allotments, as explained in detail in part III.D.3. of this preamble) may result in short-term adverse impacts to natural resources on some allotments. A phase-in period would avoid the adverse impacts of sudden herd size reductions on permittees/lessees. The ability of BLM to use the phase-in period helps BLM and the permittee/lessee to work collaboratively to ensure the appropriate changes in range management practices on a timely basis, while still retaining authority to implement changes on a faster time schedule if necessary to address ESA or other resource concerns.

• The provision for shared ownership in range improvements under the Proposed Action is expected to encourage investment in such projects by cooperators and result in improvements in resource condition.

• The Proposed Action has no limit on the number of years of nonuse that can be taken on an allotment. The No Action alternative has a 3 consecutive year limit on nonuse. The removal of

the limit under the Proposed Action improves cooperation with the permittee/lessee when nonuse is the best management practice to benefit resource conditions,

e.g.

, to remedy damage caused by fire, flood, drought, etc. BLM would be able to authorize nonuse on an annual basis for resource conservation, enhancement, or protection. The availability of nonuse as an easy-to-implement, collaborative option should result in more rapid recovery in damaged areas and more rapid progress toward meeting resource condition objectives. Further, it is a simpler process to approve an application for nonuse than it is to impose a formal suspension, thereby improving management efficiency in those cases where all involved parties agree that nonuse is warranted.

• The Proposed Action removes requirements that BLM consult with the interested public on day-to-day grazing matters, and requires that BLM provide opportunities for the interested public to participate in the decision-making process when the focus is on planning or on the preparation of reports that evaluate data that are used in grazing decisions. Less stringent requirements for public participation requirements in routine grazing management matters and excising non-participating interested publics from the list of those who it attempts to consult will free up BLM resources for more effective management to benefit the natural environment.

• The Proposed Action removes the requirement that on Federal land BLM seek livestock watering water rights in the name of the United States to the extent allowed by State law, and thus provides BLM additional flexibility for cooperative development of water projects that will benefit livestock grazing management and wildlife.

• The Proposed Action removes the provision that directs BLM to take action to remedy improper grazing practices when the authorized officer determines that existing livestock grazing management needs to be changed to achieve the conditions described in the fundamentals of rangeland health, and makes it clear that standards evaluation and conformance determination will be the benchmark by which we determine the need to adjust grazing management. It retains the requirement that standards and guidelines developed by BLM State Directors be consistent with the Fundamentals. The resulting improved efficiency in implementing our rangeland health improvement processes will benefit the environment.

We determined that the Proposed Action is environmentally preferable to Alternative 3 (Modified Action) for the following reasons:

• Under the Proposed Action a standards assessment will be used by the authorized officer to gauge whether rangeland is failing to achieve standards or that management practices do not conform to the guidelines. BLM will use standards assessment and existing or new monitoring data to identify significant contributing factors in failing to achieve standards or conform with guidelines. Under Alternative 3, monitoring is discretionary. Consequently, some rangeland health determinations would not be as rigorously developed as under the proposed action. Using existing or new monitoring data will lead to more scientifically sound analyses. As a result, changes in range management actions will be more effective, and decisions to increase or decrease active use should be less vulnerable to appeal.

• The Proposed Action has no limit on the number of years of nonuse that can be taken on an allotment. The Modified Action Alternative, Alternative 3, has a 5 consecutive year limit on nonuse. The removal of the limit under the Proposed Action enhances cooperation with the permittee/lessee when nonuse is the best management practice to benefit resource conditions, e.g., to remedy damage caused by fire, flood, drought, etc. BLM would be able to authorize nonuse on an annual basis for resource conservation, enhancement, or protection. The availability of nonuse as an option should result in more rapid recovery in damaged areas and more progress toward meeting resource objectives.

• Under the Proposed Action, BLM may impose civil penalties on a permittee/lessee (e.g., canceling his grazing permits) if he is convicted of violating certain specific Federal or state environmental and cultural laws. Alternative 3 would eliminate the potential civil penalty for a permittee/lessee because such an action is not included under “prohibited acts” under Alternative 3.

• Alternative 3 includes failing to use weed seed-free forage products (when required by the Authorized Officer) as a “prohibited act,” and the Proposed Action does not include it as a prohibited act. While a weed-seed free forage provision would be more environmentally desirable, due to the lack of state weed seed-free forage laws in some western states, BLM has decided to work with each state in its efforts to develop a law, and will pursue enforcement of weed seed-free forage on public lands through a subsequent, separate rulemaking.

D. Decision Rationale

During the years that BLM has been working with the 1995 grazing regulations, we recognized several areas where BLM could benefit from amending the 1995 regulations. Based on the analysis in the EIS (including the Revisions and Errata document issued June 17, 2005, and the Addendum to the FEIS, published March 31, 2006), which analyzes three alternatives for amending the regulations, and a review of public comments, we selected Alternative 2 (Proposed Action).

BLM provided opportunities for public involvement throughout the process of preparing the EIS and the publication of the Advanced Notice of Proposed Rulemaking and the proposed rule in the

Federal Register

. We considered all public comments, both oral and written. We made changes in the final rule and EIS as a result of public comment and further review.

The Congressionally mandated purposes for managing BLM-administered lands (public lands) include both conserving the ecosystems upon which species depend and providing raw materials and other resources that are needed to sustain the health and economic well-being of the people of this Nation. To balance these sometimes conflicting purposes, we selected the alternative that will reduce confusion that has been evident over recent years, increase clarity, enhance administrative effectiveness, and provide for grazing use while maintaining the health of the land. FLPMA clearly states that the Nation's public lands are to be managed on the basis of multiple use and sustained yield principles. FLPMA defines BLM's mission to include livestock grazing as one of many uses of public lands. However, FLPMA does not identify where livestock grazing will occur and how livestock grazing operations will be conducted. Those decisions are made during the preparation of land use plans and more site-specific decisions, such as allotment management plans, and through issuance of grazing permits and leases. These regulations provide the framework for managing livestock grazing where BLM has determined it to be an appropriate use under multiple use principles. The regulations provide for including all practical means to avoid or minimize environmental harm in implementing BLM's livestock grazing program and future decisions under these regulations within the

context of BLM's multiple use and sustained yield mission under FLPMA.

The reasons for selecting Alternative 2 are that it—

• Best meets the purpose of and need for the action, as described in the EIS;

• Amends portions of the 1995 regulations and retains the emphasis on BLM's rangeland management objectives and the 1995 regulations to maintain and improve the health of the land;

• Builds on the relationships between BLM and livestock permittees and lessees;

• Makes changes in the 1995 regulations needed to comply with court decisions; clarifies certain provisions in the 1995 regulations that have been found to be unclear;

• Is consistent with statutory requirements and national policy; and

• Is the environmentally preferable alternative for the reasons described in the Environmentally Preferable Alternative section of this Record of Decision.

A specific rationale for the selection of each major regulatory amendment is discussed below. Rationale for other changes in the regulations appears in Part V of this Preamble under Section by Section Analysis and Response to Comments.

1. Analysis and Documentation of Social, Economic and Cultural Effects

The final rule amends paragraph (c) of section 4110.3 on changes in grazing preference to provide that BLM will analyze and, if appropriate, document the relevant social, economic, and cultural effects of a proposed action. This will improve consistency when BLM documents its consideration of social, economic, and cultural effects of certain grazing decisions, thereby improving working relations with permittees and lessees.

Generally, BLM managers consider the possible effects of their decisions through the NEPA process. NEPA requires the analysis of social, economic, and cultural effects of proposed actions. However, the current grazing regulations are silent on the issue.

The preferred alternative adds a new provision requiring BLM to analyze and, if appropriate, document the relevant social, economic, and cultural effects of a proposed action before changing grazing preference. This will ensure a consistent approach to the decisionmaking process for those most directly affected by a decision to change grazing preference. We did not select Alternative 1, the continuation of the current regulations, because the regulations would remain silent on this issue and potentially foster inconsistent consideration of the social, economic, or cultural effects of changing preference. Alternative 3 does not differ from the preferred alternative.

2. Phase-in of Changes in Active Use of More Than 10 Percent

The final rule amends section 4110.3-3 on implementing changes in active use by providing for a 5 year phase-in of changes in active use when that change exceeds 10 percent. The rule provides that changes may be implemented in less than 5 years by agreement between BLM and the permittee or lessee. The preferred alternative gives BLM sufficient discretion to handle a wide range of circumstances when changing active use, while giving permittees and lessees additional time to make changes in their overall business operations. Changes in active use exceeding 10 percent are infrequent, but may create significant disruptions for an individual permittee or lessee when they do occur. On the other hand, as we have stated elsewhere in this preamble, if conditions are such that phasing in changes exceeding 10 percent would not prevent significant resource damage, or if conditions such as drought, fire, flood, or insect infestation require that resources be protected immediately, BLM can close allotments or portions of allotments under section 4110.3-3(b).

The 1995 regulation amendments deleted the then existing provisions regarding the timing of implementation of decisions to change grazing use. In some instances, this lack of guidance has led to decisions for full implementation of grazing reductions in a single season, resulting in disruptions of ranching enterprises.

The preferred alternative provides that BLM will implement changes in active use in excess of 10 percent over a 5-year period unless (1) an agreement with the affected permittee or lessee is reached to implement the change within a shorter period of time, or (2) the changes must be made before 5 years have passed in order to comply with applicable law. Prior to 1995, the regulations provided for a 5-year implementation period that proved to be a practical interval for implementing changes. The phase-in should help permittees and lessees to avoid sudden adverse economic effects resulting from a reduction by allowing time to plan livestock management changes such as in herd size. The total number of allotments affected by the preferred alternative is expected to be small, because only 16 percent of the allotments evaluated during the last 5 years needed adjustments in current livestock grazing management. See Section 4.3.1 of the EIS. Most of these adjustments have been made in the season of use, or in movement and control of livestock, rather than in active use. Finally, the rule retains provisions for immediate, full implementation of a decision to adjust grazing use if continued grazing use poses an imminent likelihood of significant soil, vegetation, or other resource damage.

We did not select Alternative 1, the continuation of existing regulations, because the 1995 regulations were silent regarding the timing of implementation of decisions to change grazing use. If, for example, a permittee or lessee challenged full implementation of a grazing reduction, appealed the decision, and was granted a stay of the decision by IBLA, then implementation of the grazing decision would be delayed. Until the appeal is resolved, grazing would continue at greater levels than are desirable, and delaying implementation of necessary changes. The ability to phase in changes may help avoid appeals and stays, thus improving administrative efficiency.

We did not select Alternative 3, which would have made the 5-year phase-in discretionary, because we felt that additional discretion was not warranted when considering the small number of allotments that would be affected. Since the rule retains provisions for immediate, full implementation of a decision to adjust grazing use, we believe the provision for phase-in of changes, coupled with the resulting improved cooperation with permittees and lessees, will result in greater efficiency and improved resource conditions in the long-term.

3. Sharing Title to Permanent Range Improvements

The final rule amends section 4120.3-2 on cooperative range improvement agreements by providing for shared title of permanent range improvements. Sharing title between cooperators and BLM allows operators to maintain some asset value for investments made, improving working relationships and encouraging private investment in range improvements.

In 1995, the regulations were revised to provide that permittees and lessees do not share title with the United States. BLM's data indicate that construction of range improvements has declined since that rule change. The 1995 rule change is one among several factors that may have contributed to the decline. The preferred alternative provides that BLM and cooperators share title to permanent

structural range improvements in proportion to their contribution to on-the-ground project development and construction costs.

Private investment in range improvements may lead to better overall watershed conditions and improved wildlife habitat. BLM believes this will be the case because allowing shared title to range improvements provides an opportunity for permittees and lessees to document investment in their business enterprises, which is useful for securing business capital and demonstrating the value of their overall private investment in public and private lands. Permittees and lessees perceive this recognition of investment as crucial to their business, and therefore as an important factor when considering personal investment in range improvements. Most existing and, since 1995, all new permanent structural range improvements are implemented through Cooperative Range Improvement Agreements that include provisions to protect the interest of the United States in its lands and resources and ensure BLM's management flexibility on public lands.

We did not select Alternative 1, which does not allow shared title of range improvements, because it did not contain any incentive for private investment on public lands or recognize the contributions made by permittees and lessees. This lack of recognition of investments may have contributed to the substantial drop in construction of new range improvement projects following the removal of shared title provision in the 1995 rule. Alternative 3 does not differ from the preferred alternative.

4. Cooperation With Tribal, State, County, or Local Government-Established Grazing Boards

The final rule amends section 4120.5-2 on cooperation with Tribal, state, county, and Federal agencies by adding a requirement to cooperate with Tribal, state, county, or local government-established grazing boards for purposes of reviewing range improvement and allotment management plans. This will improve our cooperative relationship with government-established agencies and boards. The changes also comply with Executive Order 13352 of August 26, 2004 (69 FR 52989), on Facilitation of Cooperative Conservation.

State and local grazing interests had expressed concern that BLM has not used existing established grazing advisory boards effectively. Grazing board review and input, to the extent consistent with the applicable laws of the United States, will help us consider how to apply land management practices and spend range improvement funds. Cooperation with grazing boards, where they exist, will benefit BLM land managers because the boards can contribute resource-related information from local subject matter experts, thus increasing our ability to develop appropriate strategies for managing grazing allotments and developing range improvements. This provision is consistent with section 4120.5-1, which requires cooperation, to the extent appropriate, with all groups and individuals, including Tribal entities, to achieve the objectives of grazing management. These locally established grazing boards, where they exist, would be a valuable tool for gathering additional local input for BLM's decisionmaking processes and would help satisfy the FLPMA Section 401(b)(1) provision that calls for BLM to consult with local user representatives when considering range rehabilitation, protection, and improvement actions.

We did not select Alternative 1, which did not require cooperation with grazing boards, because we want to encourage and institutionalize participation by these grazing boards when we are preparing range improvement or allotment management plans, to ensure a consistent, cooperative approach. Alternative 3 does not differ from the preferred alternative.

5. Removal of Temporary Nonuse Limit

The final rule moves the provisions on temporary nonuse from section 4130.2(g) to section 4130.4 on authorization of temporary changes in grazing use within the terms and conditions of permits and leases including temporary nonuse, and amends this section by removing the 3-consecutive-year limit on temporary nonuse. The agency needs the flexibility to authorize temporary nonuse on an annual basis so that it may adapt its management to the needs of the resources as well as the resource user. This flexibility will improve working relationships with permittees and lessees and provide another tool to protect the health of rangelands.

Prior to the 1995 regulatory change, a permittee or lessee could apply for temporary nonuse of all or a portion of his active grazing use, and there was no restriction on the number of consecutive years of nonuse. The 1995 rules established provisions for “conservation use,” which provided an alternative to annually authorized nonuse and introduced a 3-consecutive-year limit on temporary nonuse. However, a 1999 court ruling determined that BLM did not have authority to issue conservation use permits, resulting in a regulatory framework that limits BLM's authority to approve temporary nonuse to 3 consecutive years.

Temporary nonuse is one of the most efficient means BLM has at its disposal to facilitate nonuse when drought, wildfire, or other episodic events dictate nonuse. The 3-consecutive-year limit on temporary nonuse restricts BLM's ability to respond to resource conservation, enhancement, or protection needs, or the personal or business needs of the permittee or lessee. Even if BLM believes that resources would benefit and would like to approve nonuse, we are prevented from using temporary nonuse after 3 years and forced to use alternative authority. The removal of the limitation on temporary nonuse in the preferred alternative provides regulatory flexibility for responsible and responsive rangeland management.

We did not select Alternative 1 or 3 because they restricted temporary nonuse to 3 or 5 consecutive years, respectively. We believe that there should be no rigid limit on the number of consecutive years of nonuse for reasons of resource conservation, enhancement, or protection (as opposed to nonuse for business or personal reasons). There may be times when nonuse is justified for longer than 5 years, which BLM will determine based on monitoring and standards assessment on a year-to-year basis.

6. Requiring Assessment and Monitoring for Determinations on Standards and Guidelines

The final rule amends section 4180.2 on standards and guidelines for grazing administration to provide that BLM will use standards assessment and monitoring data to support a determination that existing grazing management or levels of use are significant factors in the failure to meet standards or conform to guidelines. If a standards assessment indicates to the authorized officer that the rangeland is failing to achieve standards or that management practices do not conform to the guidelines, then he will use relevant monitoring data to identify the significant factors contributing to the failure to achieve the standards or to conform with the guidelines. The preferred alternative will protect the health of the rangeland and improve working relations with permittees and lessees because determinations on the causes of failure to meet a standard will be based on monitoring and assessment data, thus helping to ensure

comprehensive and sustainable decisions.

Many members of the public articulated a strong interest in BLM's monitoring program, and expressed concern about the adequacy of data used to support our decisions and determinations. Some individuals are under the impression that BLM supports determinations with a one-time assessment of rangeland conditions. Current regulations do not specify the methods to be used to analyze and evaluate rangeland conditions. However, guidance exists in policy in BLM Manual Section 4180 and Handbook H-4180-1.

Raising the issue of monitoring from the policy level to the regulatory level will help BLM to focus monitoring efforts in those areas with critical resource issues, as disclosed by standards assessments. Under the preferred alternative, monitoring will not be necessary on every allotment in order to make a determination, but only on those allotments that fail to meet standards or conform with guidelines due to levels of grazing use or management practices. By the end of Fiscal Year 2002, BLM had determined that about 16 percent of the 7,437 allotments evaluated were not meeting land health standards because of existing livestock grazing management. Since these assessments were first focused on areas with known problems, it is reasonable to assume that the proportion of allotments not likely to meet standards because of livestock grazing management practices or levels of use in the future will not exceed 16 percent. Thus, at a maximum, the preferred alternative may require monitoring data to support 16 percent of the future determinations. We expect to have appropriate monitoring data to support a significantly larger proportion of our determinations, regardless of whether or not they involve a finding of failure to meet standards due to livestock grazing. While BLM cannot control the number of appeals or lawsuits resulting from grazing decisions, we believe ensuring sufficient monitoring will reduce the number of instances where appropriate action is delayed because of protracted administrative and judicial processes.

We did not select Alternative 1 because it left the regulations unchanged, that is, silent on the basis for supporting a determination. We did not select Alternative 3 because it required determinations to be supported by either standards assessments or monitoring, not both. Neither of these alternatives is responsive to the concern about monitoring data, and neither provides the level of assurance desired that critical management decisions would be based on appropriate monitoring data.

7. Time Frame for Taking Actions

The final rule amends sections 4180.1 and 4180.2(c). These sections cover fundamentals of rangeland health, and standards and guidelines for grazing administration, respectively. We have removed the language in section 4180.1 of the proposed rule that would have required, for those areas where state or regional standards and guidelines have not been established and where conditions described by the fundamentals of rangeland health do not currently exist, that BLM modify grazing practices before the start of the next grazing year that follows BLM's completion of mandatory procedural and consultation requirements. However, the fundamentals themselves remain as approved in 1995. Section 4180.2(c) was amended to allow BLM adequate time (up to 24 months) for cooperative formulation, proposal, and analysis of appropriate management actions when we determine that changes in current management are necessary to ensure progress towards achieving standards and conforming with guidelines. Allowing additional time for this process will help improve the health of rangelands, because cooperatively-developed management actions based on reasoned analysis have a greater likelihood of successful implementation, and yield long-lasting resource benefits.

The preferred alternative for section 4180.1 is Alternative 2 in the EIS. It would have directed the authorized officer to modify grazing management if BLM determined that conditions described by the fundamentals of rangeland health do not currently exist because of current grazing practices, but only where standards and guidelines have not been established. However, as a result of comments and implementation experience, we are adjusting the proposed action to achieve a better reflection of the relationship between the fundamentals and the standards and guidelines. The regulatory provision for adjusting management to ensure progress towards rangeland health would be in section 4180.2 rather than both sections 4180.1 and 4180.2. While BLM still must take appropriate action to remedy grazing management practices that are detrimental to rangeland health, now the final rule allows time for cooperative formulation, proposal, and analysis of appropriate management actions prior to their implementation.

As explained in the 1995 final rule, the “fundamentals will guide BLM in the development of plans for public lands and in the authorization of grazing related activities consistent with the provisions of FLPMA and TGA, that lead toward or maintain healthy sustainable rangelands.” 60 FR 9954. The 1995 rule further explained the broad nature of the fundamentals: “[F]undamentals are statements of the conditions that are representative of healthy rangelands across the West, and as such, are relatively broad * * *.” Id. The fundamentals, therefore, reflect goals that may be incorporated into land use plans. With respect to grazing, the 1995 rule explained specifically that the “State or regional standards and guidelines will be developed under the umbrella of the fundamentals, to provide specific measures of rangeland health and to identify acceptable or best management practices in keeping with the characteristics of a State or region such as climate and landform.” Id. In essence, the “overarching principles” set forth in the fundamentals were to be supplemented by standards and guidelines tailored to more local conditions.

Although the 1995 rule established requirements for “appropriate action” when either the fundamentals or established standards and guidelines were not being met due to existing grazing, we believe requiring “appropriate action” in both circumstances is unnecessary and inefficient. Standards and guidelines have been developed in conformance with the fundamentals and adopted for all states and regions except southern California. These standards and guidelines provide the basis for the application of the broadly stated fundamentals to the management of public lands. In southern California, the fallback standards and guidelines provide for the application of the fundamentals to those public lands. This means that, in the California Desert District, the fallback standards and guidelines will be applied until standards and guidelines for the District are developed and approved, so that requiring BLM action under section 4180.1 is unnecessary.

On all other public lands, the standards and guidelines provide specific measures for achieving healthy rangelands within the framework of the broad fundamentals. Therefore, a duplicate administrative mechanism to require “appropriate action” under the fundamentals is unnecessary. Further, as previously noted, the fundamentals are broad concepts that describe healthy rangelands. Because the standards and

guidelines are more specific, they lend themselves to determining whether the ecosystem functions and processes as described by the fundamentals are in fact occurring, and to communicating achievement status in a way that the fundamentals do not. For this same reason, the standards also lend themselves to enforcement in a way that the fundamentals do not. Finally, we believe that removing the “appropriate action” requirement under the fundamentals will better enable authorized officers to focus on the implementation of the standards and guidelines, which we in turn expect to result in more efficient implementation of decisions that will maintain healthy rangelands.

The 1995 regulations sought to implement timely and responsive remedial action when BLM determines that existing practices are significant factors in failing to achieve standards and conform to guidelines. However, in practice, the requirement to take action “before the start of the next grazing year” has proven to be impracticable, often allowing BLM considerably less than a year to begin action. If BLM determines in October, for example, that an allotment failed a standard due to grazing management, in many cases only 4 months would be available before the typical March begin date under current regulations to develop new management alternatives before the beginning of the next grazing year for that allotment. This restricted time frame has made it difficult or impractical to implement decisions, and has damaged working relationships with permittees and lessees. If a common allotment with several permittees or lessees does not meet a standard because of current grazing practices, and numerous public land users wish to participate in the formulation of remedial management actions, the time frame for reaching consensus may be lengthy. In these instances it is very difficult to develop and implement appropriate action before the next grazing year. Further, failing to meet the deadline in one case opens the involved BLM office to legal action, to which resources and personnel must be devoted, diminishing that office's ability to meet the deadline in all cases, possibly leading to a snowballing effect as litigation mounts.

During the formulation, proposal, and analysis of appropriate action, several steps are necessary to develop sustainable management strategies that will yield long-term improvements in rangeland health. Adequate time is needed to obtain comment and input from permittees, lessees, states and the interested public on reports that are used as bases for making decisions to modify permits or leases, or otherwise to consult and cooperate with permittees, lessees, states, and Tribes; to carry out consultation with the Fish and Wildlife Service (FWS) or the National Oceanic and Atmospheric Administration (NOAA Fisheries), or both, under Section 7 of the ESA, 16 U.S.C. 1536; and to complete analysis and documentation required by NEPA.

The preferred alternative for section 4180.2(c) establishes a more reasonable time frame within which BLM must take appropriate action if we determine that existing grazing management or levels of use are significant factors in the failure to meet standards or do not conform with guidelines. Generally, under the final rule, BLM must develop appropriate action as soon as practicable but not later than 24 months after the determination and then implement that action no later than the start of the next grazing year.

The final rule at section 4180.2(c) has been amended between the proposed and final rule. It now includes a provision extending the deadline for developing appropriate action if legally required processes that are the responsibility of another agency prevent completion within 24 months. For example, if an ESA Section 7 consultation is required, it may be difficult to complete the process within the 24-month time frame.

This extended deadline will allow BLM to fulfill all required legal obligations and should result in more sustainable and effective decisions. Taking time at this stage of the process, and involving those most directly affected by BLM decisions, to propose, formulate, and analyze appropriate actions will save time in the future by reducing the likelihood of appeals and litigation that may occur as a result of hastily prepared management actions.

We did not select Alternative 1 because the 1995 regulations did not provide enough time to formulate and analyze management alternatives and complete all consultation and documentation requirements. Alternative 3 in this respect was the same as the proposed action.

8. Conservation Use

The final rule amends several sections of the regulations by removing all reference to conservation use and authority to issue conservation use permits. This affects sections 4110.0-5 Definitions, 4120.3 Range improvement permits, 4130.2 Grazing permits or leases, 4130.5 Free use grazing permits, 4130.8 Service charges, 4140.1 Prohibited acts. The1995 regulations allowed BLM to issue “conservation use” permits for the purpose of protecting the land, improving rangeland conditions, or enhancing resource values. This authority was challenged in court, resulting in a ruling that BLM did not have authority to issue permits exclusively for conservation purposes. By removing conservation use references from the final rule we are bringing the regulations into compliance with the court's holding.

We did not select Alternative 1 because it proposed to leave the conservation use authority in the regulations. Alternative 3 does not differ from the preferred alternative.

9. Definition of Preference, Active Use and Removal of Permitted Use

The final rule revises the definition of “preference” and “active use” in section 4110.0-5 on definitions, and removes the term “permitted use” from the rule. Where it occurred in the rule, the term “permitted use” has been replaced by either “preference,” “grazing preference” or “active use,” depending on the regulatory context. These amendments make the definition of “preference” similar to the meaning first formally promulgated in 1978. Elimination of the concept of “conservation use” made necessary the revision of the definition of “active use.” These changes will provide a consistent framework for the efficient administration of public lands.

The definition of “preference”—along with the synonymous term “grazing preference”—has been revised to include the total number of AUMs attached to base property, including active use and use held in suspension. The definition also retains the meaning of a priority position for the purposes of receiving a grazing permit or lease.

In 1978, BLM formally defined “grazing preference” to mean the total number of AUMs of livestock grazing on public lands apportioned and attached to base property owned or controlled by a permittee or lessee. Grazing preference represented a specific portion of forage out of all the vegetation that a land use plan determined to be available for livestock. The 1995 rule introduced some inconsistencies in the regulations by creating the term “permitted use” to mean the forage allocation, and narrowing the definition of “preference” to mean only a priority position as against other applicants for forage. For example, the regulations provide that an application to transfer preference shall describe the “extent” of the preference being transferred. This usage does not comport with the concept that

preference is a singular “priority position,” but rather, that it can be expressed in terms of its “extent” or quantity. Also, the current definition of “permitted use” is in some cases not appropriately used in the regulations. For example, even though permitted use encompasses “suspended use” and “active use,” the regulations state that failure to make substantial use of the “permitted use” authorized by the grazing permit or lease shall give BLM cause to take action to cancel whatever amount of “permitted use” the permittee has failed to use. This is paradoxical as “suspended use” is by definition not currently available for grazing use.

In the preferred alternative, the re-revised definition of grazing preference is once again consistent with its longstanding meaning—a meaning that was in formal usage for 17 years before it was changed by the 1995 grazing regulations. The definition is also consistent with how the term “preference AUM's” was informally used before 1978. Attaching a forage allocation to base property provides a reliable way to associate ranch property transactions with the priority for use of public land grazing privileges. This has been a foundation of BLM's system for tracking who has priority for those grazing privileges since the enactment of the TGA.

In revising the definition of “preference,” this final rule seeks to reinstate a familiar method of identifying the total number of AUMs apportioned and attached to base property. Preference includes both active use and use held in suspension. This definition of “preference” does not override the requirement that livestock forage allocations be made within a multiple use context as set forth in land use plans. The proposed definition should not be erroneously construed to imply that satisfying a permittee's or lessee's livestock forage allocation (his preference) has the highest priority when BLM employs land use planning or activity planning processes to determine the appropriate combination of resource uses on BLM-administered lands.

Since 1995, “active use” has meant “current authorized use, including livestock grazing use and conservation use.” BLM must remove conservation use from the definition because of a court ruling that BLM could not issue permits exclusively for conservation purposes. In the final rule the term “active use” is the amount of forage that is available for grazing use under a permit or lease based on rangeland carrying capacity and resource conditions in an allotment.

Permitted use was introduced as a term in the 1995 regulations to define an amount of forage allocated by a land use plan for livestock grazing. It is expressed in terms of AUMs and includes “active use” and “suspended use”. Since we have revised the definition of preference to include this same livestock forage allocation, the term is no longer necessary.

We did not select Alternative 1 because the definition of preference would have remained simply a priority position to receive a grazing permit or lease, a definition that was inconsistent with traditional usage of the term which identified the total AUMs attached to specific base property. The definition of active use would have remained unchanged and inconsistent with the need to remove “conservation use” from the regulations. Alternative 3 does not differ from the preferred alternative.

10. Interested Public

The final rule amends sections 4100.0-5 Definitions, 4110.2-4 Allotments, 4110.3-3 Implementing changes in active use, 4130.2 Grazing permits and leases, 4130.3-3 Modification of permits or leases, and 4130.6-2 Nonrenewable grazing permits and leases, in order to streamline the role of the interested public. These changes should foster increased administrative efficiency by focusing the role of the interested public on planning decisions and reports that influence daily management, rather than on daily management decisions themselves.

Under the existing regulations, any person or group may obtain “interested public” status simply by requesting that status for a specific allotment in writing or by submitting a written comment on the management of livestock grazing on a specific allotment. Members of the interested public are mailed, at government expense, documents related to decisions on a particular grazing allotment. BLM must also consult, cooperate, and coordinate with members of the interested public on a host of decisions. The interested public provides valuable input, but some of those who have enlisted as interested public rarely, if at all, participate in the decisionmaking process. Others have obtained “interested public” status for numerous allotments, but only participate in the decision-making process for a select few. Additionally, management actions that now require consultation, cooperation, and coordination with the interested public include common management operations, such as the renewal or modification of individual permits, that are preceded by grazing decisions describing the management action to be implemented. These decisions are made available, with right of protest and appeal, to the interested public. Moreover, while formulation of grazing management decisions can greatly benefit from consultation with the interested public, we have found that consultation requirements for actions that implement those decisions and are intended to achieve the resource management goals set forth in those decisions are unnecessarily duplicative. These consultation requirements can slow our ability to act promptly to further those goals when necessary to respond to changing range conditions or transitory management circumstances. Clerical demands associated with maintaining non-participating members of the interested public also divert limited BLM resources from other valuable uses.

The final rule has amended the definition of “interested public” so that one must actually participate in the decisionmaking process in order to maintain interested public status. This change should improve administrative efficiency by allowing BLM to purge the names of nonparticipating persons from its interested public lists. The regulations have also been amended to remove consultation, cooperation, and coordination requirements from the following decisions: (1) Adjustments to allotment boundaries (section 4110.2-4); (2) changes in active use (section 4110.3-3(a)); (3) emergency allotment closures (section 4110.3-3(b)); (4) issuance or renewal of individual permits or leases (section 4130.2(b)); and (5) issuance of nonrenewable grazing permits and leases (section 4130.6-2). In adopting these changes, BLM has attempted to balance the important role of the interested public with the need for prompt decisionmaking on day-to-day management issues. Thousands of these decisions are made annually by BLM. Actions are guided by broader decisions (such as allotment management plans) and monitoring and other reports as to which the interested public will continue to have an opportunity to review and provide input. In addition, prior to considering any on-the-ground action, BLM must determine whether the proposed action conforms to the applicable land use plan. If a proposed action does not conform to the land use plan, a land use plan amendment must be completed before BLM can further consider the proposed action. The

public is assured involvement in the land use planning process.

We expect the changes in the definition and role of the interested public in the grazing program to improve administrative efficiency and lead to more timely decision making. It is BLM's expectation that this increased efficiency and faster reaction time will ultimately benefit overall rangeland health. Also note that these changes do not affect public participation opportunities available through the NEPA environmental analysis process, in administrative appeals of grazing decisions, or, to the extent practicable, in the preparation of reports and evaluations.

After publishing the Final EIS in June 2005, BLM proposed two categorical exclusions (CX) for issuing grazing permits (71 FR 4159, January 25, 2006). One of the proposed exclusions is for issuing grazing permits in general, and the other is for issuing nonrenewable permits. As proposed, the CXs would be limited to grazing permits where land health standards have been assessed and evaluated and the authorized officer has documented that the standards are achieved, or if not achieved, that livestock grazing is not a causal factor; and to permits issued as a result of administrative action such as changing the termination date or the name of the permittee, and where none of the 12 extraordinary circumstances listed in Appendix 2 of Departmental Manual 516 apply. If the CXs are approved, the public would continue to have opportunity to participate in the grazing permitting process on those allotments that qualify for a CX—

• Through the development of Resource Management Plans and activity plans (section 4120.2),

• Before a decision is made to increase a permittee s forage allocation (section 4110.3-1(c)),

• To the extent practicable in the preparation of reports and evaluations that are used to support modifications of grazing permits and leases (section 4130.3-3(b)), and

• In protests and administrative appeals of grazing decisions (subpart 4160).

We did not select Alternative 1, the continuation of existing regulations, because BLM's view is that those who become “interested public” oblige themselves to participate in the process that leads to a decision affecting management of the allotment(s) in which they are interested, and Alternative 1 does not provide for this. BLM has noted that in some cases, interested public who have been provided consultation opportunities regarding management of grazing on a specific allotment have failed to participate, but then file, in a relatively generic format, a protest and/or appeal of the final decision—which BLM then must address through a formal administrative process. BLM believes that it is appropriate to provide that those who forfeit their opportunities for participation in the processes leading up to the decision then also forfeit their opportunities to contest the decision after it is issued. BLM has noted that in other cases, some interested publics use the consultation opportunities provided to them as a forum for their advocacy of a particular position that has little direct bearing on issues at hand with respect to management of a specific allotment. The primary purpose for BLM allowing participation by the interested public in its grazing decision making process is to obtain specific insights regarding specific management on specific allotments. Such interested public participation opportunity is not intended to serve as a forum for espousing general opposition (or support) regarding programs and policies of the United States Government. For this and other reasons, the interested public provisions have proven costly to implement, have decreased administrative efficiency, and have, at times, hindered the administration of daily grazing management. Alternative 3 did not differ from the preferred alternative.

11. Water Rights

The 1995 rule added section 4120.3-9 on water rights. In simplified form, it provides that if livestock water rights are acquired under state law, they shall be acquired, perfected, and maintained in the name of the United States to the extent allowed by the pertinent state law. The final rule revises the section by limiting its applicability to water rights acquired by the United States and by removing the language stating that the water rights shall be acquired, perfected, and maintained in the name of the United States to the extent allowed by the applicable state law. Removal of this requirement will clarify BLM's flexibility in seeking water rights, and in pursuing administrative options including joint ownership of water rights with permittees or lessees.

Although the 1995

Federal Register

preamble to the rule change stated that joint ownership of water rights was consistent with the regulations, some interpreted the provision to exclude cooperatively held water rights on public lands. Many water rights are currently held by permittees or lessees, or jointly owned with BLM. We have not seen evidence in these instances that a permittee or lessee holding a water right discourages cooperation or compliance with terms and conditions of grazing permits or complicates land exchanges.

The preferred alternative retains the requirement that BLM follow the substantive and procedural laws of the state when acquiring, perfecting, maintaining, and administering livestock water rights on public lands. This language makes it clear that, within the scope of state processes, BLM may seek co-ownership of water rights with permittees and lessees or, in certain circumstances, agree that permittees and lessees own the water rights. BLM continues to have the option of acquiring an exclusive water right as long as we do so in compliance with state water law. States assign water rights under different state laws, regulations, and policies. The flexibility afforded by the preferred alternative will facilitate BLM's ability to administer grazing permits and leases in varied circumstances.

We did not select Alternative 1 because it retained the wording in the 1995 regulation, which decreases BLM's flexibility to obtain livestock water rights to an extent that is less than that allowed under state law when BLM deems it desirable to do so. We believe that the preferred alternative best provides BLM with the flexibility to seek water rights appropriate to the circumstances. Alternative 3 does not differ from the preferred alternative.

12. Satisfactory Performance of Applicants

The final rule amends section 4130.1-1, on filing applications, to clarify the requirements for satisfactory performance of a permit or lease applicant. Portions of the existing section 4110.1 on mandatory qualifications were moved to section 4130.1-1 and amended. These changes should provide applicants with a clearer statement of BLM's expectations, improving working relationships and increasing administrative efficiency.

The existing regulations at section 4110.1(b)(2) list 3 situations where an applicant for a new permit would “be deemed not to have a record of satisfactory performance.” The regulation thus implied that more situations could lead to an unsatisfactory performance determination, but it did not specify further criteria. This produced some confusion among applicants, and it also led to some inconsistent application of this regulation within BLM. The final rule corrects this situation by stating

that an applicant will be deemed “to have a record of satisfactory performance” when the applicant (1) has not had a Federal grazing permit or lease canceled for a violation, (2) has not had certain state grazing permits or leases canceled, or (3) has not been barred from holding a grazing permit or lease by a court. The 3 criteria remain essentially unchanged from the existing section 4110.1(b)(2). By stating the provision in a positive way, however, we make it clear that applicants have a satisfactory record of performance unless they fail to meet one of these criteria.

Other portions of existing section 4110.1 related to applications for renewal were also moved but not modified.

Alternative 1, the continuation of the existing regulations, was not adopted because: (a) Satisfactory performance requirements are more appropriately addressed in the section of the regulations that addresses to whom BLM will issue a grazing permit or leases, rather than the section of the regulations that addresses who is qualified for grazing use on public lands; and (b) BLM intends that satisfactory performance requirements be clearly and unequivocally based on matters directly related to livestock grazing and not be based on violations of laws and regulations that may have no bearing on the potential ability of the applicant to manage grazing successfully under a BLM grazing permit or lease. This is consistent with the intent expressed by the Department when the regulations were first promulgated in 1995 that permittees be good stewards of the land (60 FR 9926), but sharpens the rule's focus on grazing lands. Alternative 3 did not differ from the preferred alternative.

13. Temporary Changes in Grazing Use Within the Terms and Conditions of Permit or Lease, Including Temporary Nonuse

The final rule amends section 4130.4 on authorization of temporary changes in grazing use within the terms and conditions of a permit or lease, including temporary nonuse, by defining the phrase “temporary changes in grazing use within the terms and conditions of the permit or lease.” Under existing regulations, this phrase is not defined. The clarification associated with this change should improve administrative efficiency.

Most permits or leases include a period of use described by specific dates. These dates do not always account for the natural fluctuations that can lead to forage availability outside the listed dates. Existing regulations allow for temporary changes but this authority has, at times, been applied inconsistently within BLM. The new definition clarifies the amount of flexibility BLM authorized officers will have when considering temporary changes. Under the new definition, a temporary change can be made to the livestock number and/or period of use. Temporary changes cannot result in the removal of more forage than the “active use” specified by the permit or lease. Neither can a temporary change authorize grazing earlier than 14 days before the grazing start date or later than 14 days after the grazing end date specified in the permit or lease, unless an allotment management plan under § 4120.2(a)(3) specifies different flexibility limits. This change will help ensure consistent application across BLM.

We did not select Alternative 1, the continuation of existing regulations, because of the inconsistent application associated with the current regulations. Alternative 3 did not differ from the preferred alternative in this regard.

14. Service Charges

The final rule amends section 4130.8-3 on service charges in order to reflect more accurately the current costs of processing and, thereby, contribute to administrative efficiency. Editorial modifications have also been made to remove a reference to “conservation use,” a term that has been removed from the regulations generally, and provide for increased clarity.

Current service charges are $10 for issuing a crossing permit, transferring grazing preference, or canceling and replacing or issuing a supplemental grazing fee bill. These charges are well below BLM's actual processing costs. The preferred alternative increases service charges to reasonable levels that capture more of the actual cost of processing. The change complies with section 304(a) of FLPMA, 43 U.S.C. 1734(a), where reasonable charges are authorized. The newly effective charges are $75 for a crossing permit; $145 to transfer grazing preference; and $50 to cancel and replace or to issue a supplemental grazing fee billing. These new charges are subject to later modifications through public notice in the

Federal Register.

We did not select Alternative 1, continuation of the existing regulations, because those regulations contain a reference to “conservation use” that should be removed for consistency within these regulations. Under existing regulations service charges could still be adjusted through a

Federal Register

notice, but it is efficient to make these initial changes in this well-publicized rule. This technique has allowed for extensive public input on the issue. Alternative 3 did not differ from the preferred alternative as to this matter.

15. Prohibited Acts

The final rule modifies section 4140.1 on acts prohibited on public lands in order to reduce ambiguity and contribute to administrative efficiency. Some minor editorial modifications have also been made. The preferred alternative maintains the 3 sets of prohibited acts present in the existing grazing regulations.

The first set, section 4140.1(a), addresses various grazing-specific violations made by a permittee or lessee. The final rule clarifies that supplemental feed placed contrary to the terms and conditions of the permit or lease is a violation. The existing rule states only that supplemental feed placed “without authorization” was a violation, and this has produced some confusion among permittees, lessees, and BLM personnel. The added language clarifies that supplemental feeding made contrary to permit or lease terms and conditions is a violation even if the permittee or lessee is authorized to undertake some level of supplemental feeding.

The second set of prohibited acts, section 4140.1(b), applies to all persons performing acts on all BLM lands, not just permittees and lessees. The preferred alternative clarifies that the prohibited activity listed in the second set must occur on “BLM-administered lands.” The existing phrase “related to rangelands” created confusion. The rule clarifies that it is a prohibited act to graze without a permit, lease, or other grazing use authorization. The amended language accounts for situations where BLM allows grazing through authorizations other than a term permit or lease, such as a crossing permit. Also, the final rule clarifies that grazing fees must be paid in a timely manner to avoid violating these regulations. Thus, this section provides, among other things, useful authority to encourage timely payment of grazing fees.

The third set of prohibited acts, section 4140.1(c), pertains to violations of certain Federal or state laws or regulations. The final rule now clarifies that the section applies to prohibited acts performed by a permittee or lessee “on the allotment where he is authorized to graze.” This replaces ambiguous language that stated the provision applied to acts “where public land administered by the [BLM] is involved or affected [and] the violation

is related to grazing use authorized by a permit or lease issued by the [BLM].” Few actions on lands outside the grazer's authorized allotment could have triggered a violation under the existing language. The existing language created confusion regarding its scope while providing BLM with little useful authority. The more precise language of the final rule will be more understandable and improve the efficiency with which this regulation can be enforced. Violations of statutes or regulations on non-allotment lands will continue to be subject to the normal penalties available under those authorities, regardless of whether the violations are related to grazing use.

We did not select Alternative 1, the continuation of existing regulations, due to the presence of the ambiguity previously discussed. Alternative 3, the Modified Action alternative, proposed two provisions that differed from the Proposed Action. The first provision would have required the use of weed seed-free forage, grain, straw, or mulch when required by the authorized officer. We did not include the provision at this time as we are still developing a nationwide weed-free policy for public lands. The second provision would have deleted the third category of prohibited acts, those pertaining to violations of certain Federal and state laws or regulations, from the regulations. Although relatively few violations have been documented, BLM believes this category serves a deterrent purpose and has chosen to retain it.

16. Decisions on Ephemeral or Annual Rangeland Grazing Use and Nonrenewable Permits

The final rule amends section 4130.6-2 on nonrenewable grazing permits and leases by adding a new paragraph (b) allowing BLM to make a decision issuing a nonrenewable grazing permit or lease, or affecting an application for grazing use on annual or designated ephemeral rangelands, effective immediately or on a date established in the decision. The final rule has removed language from existing section 4160.3(d) on final decisions that described the effect of an administrative stay on decisions related to designated ephemeral or annual rangelands and temporary nonrenewable grazing. The ability to make decisions on nonrenewable grazing permits and leases, or ephemeral or annual rangelands grazing use, effective immediately on a date established in the decision under final rule section 4130.6-2(b) has largely eliminated the need for any special stay provisions. These changes should improve administrative efficiency and effectiveness by allowing faster responses to time-sensitive requests and clarify compliance with legal requirements.

The existing regulations at section 4160.3(d) state that when OHA stays a decision regarding designated ephemeral or annual rangeland grazing “the authorized grazing use shall be consistent with the final decision pending” the final determination on the appeal. In addition, under the existing regulations a decision shall not be in effect for a 30-day period during which an appeal may be filed, and for an additional 45-day period if a petition for stay is filed. This creates a problem where the decision is to grant (rather than deny) the application for nonrenewable use, or use on ephemeral or annual ranges, because in some cases the forage quality rapidly declines and loses its nutritional value during this combined 75-day waiting period. Thus, a simple appeal of a decision to grant an application for use of ephemeral or annual rangeland, or for temporary and nonrenewable use, can render both the application and approval futile for the purpose intended, namely, to use available forage to provide nutrition for livestock. BLM considers this to be a procedural flaw.

When BLM grants an application for temporary and nonrenewable use, or use on annual or ephemeral ranges, this indicates that BLM has evaluated the merits of the application and has determined that such use would be consistent with achieving resource management objectives specified in land use plans. BLM intends that the simple act of an appeal alone, with nothing more, should not render both the application and approval an exercise in futility.

The proposed rule addressed this 75-day waiting period issue by placing language similar to that in existing section 4160.3(c) into section 4160.4(c) on appeals. However, in response to comments from OHA, this section has now been removed from the final rule. Instead, BLM may now issue nonrenewable permits as immediately effective decisions under section 4130.6-2(b). This change will allow time-sensitive decisions on forage to be made and immediately put into practice, without waiting up to 75 days. If that decision to authorize the use is appealed and a stay is granted, the decision would be inoperative and livestock would have to be removed. In the alternative, if the decision is appealed and a stay is denied, the appellant would have the option of seeking an injunction of the application approval in Federal court. In either case, an appellant would be required to show why it would have a reasonable chance of prevailing on the merits of the appeal in order to halt the action, and the act of filing an appeal, in and of itself, would not frustrate the purposes intended by the application and approval.

We did not select Alternative 1, the continuation of existing regulations, because of the issues discussed above. Alternative 3 did not differ from the preferred alternative.

17. Effect on Grazing Use When a Stay Has Been Granted on an Appeal of a Decision Associated With Changes to a Permit or Lease or Grazing Preference Transfers

The final rule amends sections 4160.3 Final decisions and 4160.4 Appeals, as these sections relate to administrative stays of decisions associated with (1) changes made to a permit or lease (other than a nonrenewable permit), or (2) grazing preference transfers. The final rule will allow grazing to continue under the terms of an immediately preceding permit or lease if all or a part of a decision is stayed.

Under this provision, although the grazing decision appealed is stayed, grazing can continue at the previous levels of use. This ensures that the decision appealed is rendered inoperative for exhaustion purposes under 5 U.S.C. 704 and the status quo prior to issuance of the decision appealed remains in effect. In the instance of an appeal and stay preventing implementation of a new grazing authorization, the fact that a permittee may still be authorized to graze at some level is not a function of the stayed decision being implemented. It is worth noting that the APA provides at 5 U.S.C. 558(c) that when a licensee has made a timely and sufficient application for a renewal or a new license in accordance with agency rules, a license authorizing an activity of a continuing nature does not expire until the application has been finally determined by the agency.

Under the existing regulations, the effects of an administrative stay are addressed at § 4160.3(c)-(e). Existing § 4160.3(d) allows grazing to continue at the previous year's level when a stay is granted unless the permit or lease applicant had no authorized grazing use during the previous year. The final rule clarifies, in § 4160.4(b)(1), that BLM will continue to authorize grazing under prior terms when a stay is issued for all or part of a decision that (1) cancels or suspends a permit or lease, (2) changes the terms or conditions of a permit or

lease during its current term, or (3) renews a permit or lease. Existing § 4160.3(d) applied the continuation of prior terms to decisions on “an application for grazing authorization.” This general phrase created some ambiguity that the more precise list in the final rule seeks to clarify.

The continuation of grazing under prior terms in existing § 4160.3(d) does not apply to those who had no authorized grazing use in the prior year. Typically, this exception has affected applicants who obtained grazing preference through a transfer. For example, assume a person has recently purchased the base property of another, such as a ranch. The previous ranch owner's grazing preference can be transferred to the new owner; however, the new owner must apply for a new permit because the existing permit automatically expires when the transfer is approved. See 43 CFR 4110.2-3. If the new owner is granted a permit authorizing less grazing than the previous owner's permit, the new owner can appeal to OHA. He can also seek a stay of the BLM decision. If a stay is granted, however, the new owner would not be authorized to graze at the higher level associated with the previous ranch owner's permit under existing section 4160.3(d). Conversely, had no ranch sale occurred and a renewal permit application led to a reduction in grazing use, the ranch owner would face a different situation. Should he appeal and receive a stay, the rancher would be allowed to continue grazing at the higher level under his previous permit. Many believed this differentiation in existing section 4160.3(d) between existing permittees and transferees was not justified. Also, requiring any grazer to reduce operational levels temporarily is contrary to a stay designed to maintain the status quo while the appeal is considered.

Existing § 4160.3(e) also creates confusion among grazing users, the public, and BLM. This paragraph states that when OHA stays a final decision that changes authorized grazing use, the grazing use that will be authorized while the decision is stayed “shall not exceed the permittee's or lessee's authorized use in the last year during which any use was authorized.” This paragraph has since been interpreted by OHA to mean that the use BLM can authorize cannot exceed the use specified by the grazer's existing permit or lease, regardless of the use that may have been made under that permit or lease in the immediately preceding year (

Fallini, Fallini Living Trust,

IBLA 2002-139, March 4, 2002).

The final rule has addressed these issues by removing the discussion of stays from section 4160.3 Final decision and placing that in section 4160.4 Appeals. Now, when a decision on a preference transferee's application is stayed, BLM will issue a temporary permit that contains the same terms and conditions as the permit previously applicable to the area in question, subject to any relevant provisions in the stay order itself. The permit will be in effect until OHA resolves the administrative appeal. This change will enhance the continuity of grazing operations and remove some of the uncertainty associated with preference transfers. This change does not prevent BLM from making emergency allotment closures or suspending grazing use to protect rangeland health, but it does allow grazing to continue under normal circumstances as a use compatible with BLM's multiple use mission. BLM is making these changes to balance the exhaustion of administrative remedies under the APA and our responsibilities under FLPMA and TGA to

• Manage lands for multiple use and sustained yield,

• Regulate the occupancy and use of the rangelands,

• Safeguard grazing privileges,

• Preserve the public rangelands from destruction or unnecessary injury, and

• Provide for the orderly use, improvement, and development of the range.

Also, to address the unclear language in existing § 4160.3(e), these stay regulations clearly reference grazing permits and leases as the document upon which BLM must rely to determine allowable grazing use levels, and removes the language that refers to the “authorized use in the last year during which any use was authorized.”

Alternative 1, the continuation of existing regulations, was not selected because of the problems discussed above. Alternative 3 did not differ from the preferred alternative.

18. Biological Assessments and Evaluations Are Not Decisions and Therefore not Subject to Protest or Appeal

The final rule adds section 4160.1(d), stating that a biological assessment (BA) or biological evaluation (BE) is not a BLM decision for purposes of protest or appeal. BAs and BEs are documents prepared by BLM for ESA compliance purposes. This change should improve administrative efficiency by lessening the time associated with ESA consultation.

This change is made in response to the decision of the Interior Board of Land Appeals (IBLA) in

Blake

v.

BLM

, 145 IBLA 154, (1998),

aff'd on reconsideration,

156 IBLA 280 (2002). There, the IBLA held that a change proposed by BLM in a permit or lease and evaluated in a BA or BE is a proposed decision under the existing regulations at section 4160.1.

Blake (on reconsideration)

, 156 IBLA at 283-86. After the opportunity for a protest, that change could be set forth in a final decision subject to appeal under section 4160.4.

Blake

, 145 IBLA at 166. The

Blake

holding has led to a situation where a BLM BA or BE addressing possible grazing changes may trigger the need for two final decisions, the first of which cannot be directly implemented. BLM believes a BA or BE is better viewed as an intermediate step that may later lead to a single final decision that can be implemented. This regulatory change is designed to implement that view—a view that formed the basis of BLM actions prior to the

Blake

decisions. By this change, the Secretary has prospectively superseded the

Blake

decisions through rulemaking.

For example, under the existing

Blake

interpretation, after any protests to a change evaluated in a BA or BE are resolved, the BA or BE would be subject to appeal. However, assuming there were no appeals, any grazing-related changes contemplated in this “final” decision would

not

be implemented at that time. Instead, the BA or BE is merely submitted by BLM for consideration by the FWS. If formal consultation is required, FWS later issues a biological opinion (BO) in response to the BA. This FWS BO may differ from BLM's BA or BE. Moreover, BLM may exercise discretion as it makes implementation decisions based on the findings and advice contained in the FWS BO. Any grazing-related changes are then issued as proposed decisions under section 4160.1 and subject to protest under section 4160.2. Assuming protests are resolved, a final decision is then issued and is subject to administrative appeal under section 4160.4. After any appeals are resolved, this final decision can then be implemented. This time-consuming process has slowed the ability of BLM to respond to ESA related issues.

The final rule eliminates the potential for protests and appeals of a BA or BE prepared by BLM. A BA or BE does not grant or deny a grazing permit application, assess trespass damages, or make other decisions that are typically subject to protest and appeal. Rather, a BA or BE is a tool used to decide whether to initiate formal consultation under section 7 of the ESA.

The TGA requires BLM to provide, by appropriate rules and regulations, for local hearings on appeals of grazing decisions. 43 U.S.C. 315h. These local hearings are administered by an administrative law judge (ALJ) from the Hearings Division of OHA. ALJ decisions can then be appealed to IBLA within OHA. While the Secretary has delegated review authority to OHA over decisions regarding land use, the Secretary has not delegated authority to OHA to review biological opinions of the FWS.

See

Secretarial Memorandum of January 8, 1993 (Secretary Lujan); Secretarial Memorandum of April 20, 1993 (Secretary Babbitt). This final rule does not modify this longstanding policy. The ESA does not mandate the creation of an administrative appeal procedure for biological opinions and instead authorizes a civil suit in Federal Court. 16 U.S.C. 1540(g). Biological opinions may also be challenged in Federal court under the Administrative Procedure Act (APA).

See Bennett

v.

Spear

, 520 U.S. 154, 178 (1997).

Alternative 1, the continuation of existing regulations, was not selected because it would continue the requirement that BLM issue a biological assessment that is created for the purposes of ESA consultation on a grazing-related proposed action as if it were a grazing decision under the TGA, and perpetuate the confusion and inefficiencies affecting BLM's grazing decision-making processes addressed above. On September 20, 2004, BLM issued Information Bulletin 2004-148. Among other things, this IB pointed out that BLM will notify applicants for grazing permits or leases that if ESA matters must be considered in the course of processing their application for issuance or renewal of a grazing permit or lease or other grazing use authorization, that under the ESA they may request BLM to grant them “applicant status” under 16 U.S.C. 1536(a)(3), and that individuals with applicant status will be given the opportunity to comment on and provide input regarding:

• The modifications suggested by the Services (i.e., U.S. Fish and Wildlife Service (FWS) and/or National Marine Fisheries Service (NMFS)) during informal consultations, in order to avoid the likelihood of adverse effects on listed species or critical habitat. See 50 CFR 402.13(b).

• The submission of information to the Services for consideration during the consultation. See 50 CFR 402.14(d).

• Ensuring that they make no irreversible or irretrievable commitment of resources, with respect to the action, that has the effect of foreclosing the formulation or implementation of any reasonable and prudent alternatives chosen to avoid violating Section 7(a)(2). See 50 CFR 402.09.

BLM believes that its guidance on early consultation with applicants addresses the need identified by

Blake

for consultation with existing or prospective permittees or lessees regarding the contents of biological assessments that BLM prepares for the purposes of ESA-required consultation.

Alternative 3 did not differ from the preferred alternative.

IV. Response to General Comments

The extended comment period on the proposed rule ended on March 2, 2004. We received about 18,000 comment letters and electronic communications. An exact count of the comments is not available due to the large amount of duplication among the comments; very often a single individual or entity submitted identical comments multiple times or via different media. We did not attempt to keep track of all the duplications, although we observed many. Large numbers of comments supported or opposed the proposed rule in general terms, or discussed issues without addressing specific sections. Most gave reasons that do not relate to specific provisions of the regulations. In this section, we will discuss the comments that addressed the regulatory process as it pertains to this rule, general comments supporting and opposing this rule, issue-oriented comments that do not address specific sections, and comments raising issues not addressed in the proposed rule. The comments are organized by subject and presented in groups that address a theme on the subject. We have grouped similar comments together into themes and addressed them with a single response.

BLM published a Notice of Availability for the associated Draft EIS on January 6, 2004 (69 FR 569). On January 16, 2004 BLM published a notice that extended the public comment period on the proposed rule and Draft EIS until March 2, 2004 (69 FR 2559) so that those commenting would have sufficient time to review the Draft EIS.

Over 18,000 comments were received combined on the draft EIS and proposed rule. Responses to those comments were summarized along with the comments and enclosed in the Final EIS that was published on June 17, 2005.

Approximately 188 comments were submitted after close of the extended public comment period. Five raised specific issues, and one was submitted from a sister agency, the U.S. Fish and Wildlife Service.

We decided that an additional document was necessary to respond to those comments, while also further clarifying issues in the FEIS, and began working on an Addendum to the FEIS. On March 31, 2006, BLM published the Notice of Availability for this Addendum to the original FEIS, which was entitled “Proposed Revisions to Grazing Regulations for the Public Lands Final Environmental Impact Statement.”

A. The Regulatory Process

Some comments addressed the regulatory process itself. One comment urged BLM to clarify when comments are due by specifying a date and time, including time zone, stating that they find it uncertain when the exact comment deadline is in the electronic age. Another comment stated that BLM should not ignore comments received from the public during the rulemaking process.

We always accept comments postmarked or electronically dated within the stated comment period, regardless of the time zone of origin. In future proposed rules, we will make this clearer. We received almost 18,000 letters, postcards, e-mails, faxes, Web-based comments on the proposed rule and the DEIS, and statements made at the public meetings, and the BLM staff reviewed every comment numerous times.

We have responded to comments on the content of the proposed rule and the DEIS in either this final rule or the final EIS (including the Revisions and Errata document and the Addendum to the FEIS), or both. In some cases, we responded with a change in the regulatory text, and in others with revised or additional language in the EIS. In other cases, we have tried to explain in this preamble why we did not adopt the comment. Since we received so many communications to analyze, we have not attempted to respond separately to every duplicate or substantially similar communication individually, and we did not adopt every suggestion contained in the comments. We often receive conflicting comments from the public. BLM considered all views and suggestions regarding the rule, especially suggestions to improve the language in the regulations. We discuss either in this preamble or in the EIS every discrete suggestion and argument raised in the comments.

Those comments that appeared in form letters or that were expressed multiple times in multiple ways have

been addressed in a response to a prototypical example of each such communication, or have been summarized and responded to as a general comment. BLM has not ignored any comments received at any point during the rulemaking process.

One comment stated that BLM should have answered questions at the public meetings to help clarify the proposed rule.

During the public meetings, BLM sought direction from the audience on other possible policy issues or regulation changes that we should consider for implementation. BLM did not want to influence the audience or limit the possible discussion during the meetings.

One comment stated that BLM should give more weight to comments and concerns from the agricultural industry than those from other interests. Another stated that the Public Lands Council comments should be the first guide in amending the grazing regulations.

BLM considered all relevant comments from the public equally on their merits, whether they were from industry, other government agencies, staff comments, academia, other interest groups, or individuals.

One comment stated that BLM “subverted” the NEPA process by issuing the DEIS after the proposed rule was published.

We respond in detail to this comment in the discussion of NEPA compliance under C. General Opposition, below.

B. General Support

Many comments supported the proposed rule because it recognized the socio-economic and cultural importance of public land grazing to adjacent and local communities and considered the concerns of public land grazing users. Others stated that the rule would protect the health of the land by relying on science, improving working relations with permittees and lessees, improving administrative effectiveness and efficiency, and making it clear that changes in use must be based on monitoring and assessment.

C. General Opposition

Many of those who opposed the proposed rule stated that BLM should not adopt the rule because it would give ranchers preferential treatment at the expense of the nation's natural resources; favor ranchers and elevate grazing as the primary use of public land instead of managing for multiple resources and restoring degraded resources; weaken the conservation and restoration of public lands; limit public participation; limit BLM's regulatory authority with respect to public lands; and return to the archaic notion that the grazing lessee in essence owns the public's land. Others opposed the rule, stating that it hampers the work of BLM field offices, or that it fails to identify good and bad grazing practices. Many comments opposed the rule, expressing their opposition in terms of opposing public land grazing itself.

BLM makes no changes in the final rule in response to these comments. We agree that we are a multiple use agency and that single uses should not generally be favored at the expense of other users or resources. These regulations do not favor ranchers at the expense of other resources. BLM has never operated under the notion that the grazing operator in essence owns the public land, and these regulatory changes do not introduce provisions that would provide for rancher ownership of the public lands. Rather, the changes are intended, among other things, to improve the cooperative environment within which ranching takes place on public land. At the same time we have made certain that these adjustments to the regulations do not harm the rangeland resources or prevent significant involvement of the public in rangeland management. We need to amend the current regulations to improve working relationships with permittees and lessees, to protect and enhance the health of the public rangelands, to resolve some legal issues, and to improve administrative efficiency. The final rule continues to provide for BLM cooperation with other government agencies that have responsibility for grazing on public lands. The final rule provides for the interested public to review, provide input, and comment on reports that evaluate monitoring and other data used as a basis for developing terms and conditions of a grazing permit or lease. Also, the final rule retains interested public participation when preparing allotment management plans, developing range improvement projects, and apportioning additional forage. In the final rule, the interested public retains the opportunity to review proposed and final decisions, as well as the right to protest proposed decisions and appeal final decisions as long as they meet the requirements of 43 CFR 4.470.

BLM manages for multiple uses. We also restore degraded resources, and believe that we can pursue restoration while administering grazing in accordance with the regulations.

We do not seek to elevate grazing to be the primary use of public land. BLM manages the public land on the basis of multiple use and sustained yield. We intend the regulatory changes to improve working relationships with permittees and lessees. We anticipate that these changes will improve consultation, cooperation, and day-to-day coordination with them. Additionally, the rule focuses communication efforts on those groups most interested in the management of public lands for grazing. The cooperation fostered by the final rule should help make BLM's field work more efficient and cost effective.

BLM does not believe that the final rule weakens environmental standards. For example, it strengthens standards by requiring monitoring and land assessment in areas that do not meet rangeland health standards due to grazing practices before BLM makes a determination to that effect. As a result, BLM's decisions are expected to reflect a more comprehensive analysis that in turn can be anticipated to help ensure defensible decisions if appealed and ultimately more effective decisions from both an implementation and land health perspective. The final rule retains the fundamentals of rangeland health and requires that Standards and Guidelines developed by BLM State Directors be consistent with these fundamentals. The final rule retains the regulatory requirement that BLM take appropriate action whenever existing grazing management practices or levels of grazing use are significant factors in not achieving standards or conforming with guidelines. The final rule retains provisions that allow BLM to close areas to grazing or modify grazing practice when necessary for immediate protection of resources because of conditions resulting from fire, drought, flood, or insect infestation. The final rule retains provisions for BLM to review grazing permits and leases and to make changes as needed to maintain or improve rangeland productivity or assist in making progress toward restoring ecosytems to properly functioning condition. The final rule retains provisions that the range improvement fund be used for improvements that benefit rangeland resources, including riparian area rehabilitation, improvement, and protection, fish and wildlife habitat improvement or protection, soil and water resource improvement, wild horse and burro management facilities, vegetation improvement and management, and livestock grazing management. The final rule retains provisions that prohibit cutting, burning, spraying, destroying or removing vegetation without authorization. The final rule provides

that BLM may suspend or cancel the permits or leases of operators who are convicted of performing environmentally degrading acts on allotments where they are permitted to graze. Nothing in the final rule diminishes BLM's regulatory authority.

As for distinguishing between good and bad grazing practices, the rule does change the way BLM determines whether an operator has a satisfactory record of performance. See the discussion under section 4130.1-1, below.

Some comments stated that BLM should not change the regulations because the new regulations do not follow the Secretary's “4 Cs” philosophy.

The changes in the regulations are designed to improve communication, consultation, and cooperation in the service of conservation. We explain elsewhere in this preamble how the various changes help to conserve the health of the land by encouraging cooperation between BLM and grazing permittees and lessees, and how the interested public can participate at various stages of the range management process.

One comment stated that BLM should revise the proposed regulations in order to better reflect its multiple use mandates, and that BLM failed to justify reversing current regulations. Another stated that the proposed rule represented fundamental policy shifts. Others stated that the current regulations were litigated and upheld in Federal court.

BLM stated the reasons for the changes in the grazing regulations in the proposed rule. The final rule does not contain fundamental policy shifts, although it amends aspects of the 1995 rule. We intend the revisions to improve working relations with permittees and lessees, to protect the health of the rangelands, to increase administrative efficiency and effectiveness, and resolve legal issues. The fact that a regulation has been approved in a court decision does not mean that the agency can never amend it further if it finds a need to do so. The changes in the final rule are driven by specific issues and concerns that have come to BLM's attention through experience with the 1995 regulations and from public comments.

The regulatory changes are narrow in scope, do not include changes in the fundamentals of rangeland health or the standards and guidelines for grazing administration, and otherwise leave the majority of the 1995 regulatory changes in place. FLPMA provides authority and direction for managing the public lands on the basis of multiple use and sustained yield principles. FLPMA land use planning has determined that grazing continues to be an appropriate use of a large portion of the public lands administered by BLM. The final rule will not affect BLM's multiple use mandate. In fact, one of the major areas of focus of the grazing regulations revisions is protecting the health of the rangelands by making temporary nonuse a more flexible option, by requiring a BLM finding that additional forage is available for livestock use as opposed to other uses before authorizing livestock grazing use of it on a temporary or sustained-yield basis, and by emphasizing monitoring as a basis for BLM decisions on grazing management, including any increases in active use as well as decreases.

Comments opposing the rule asserted that grazing has degraded wildlife habitat, soils, cultural sites, native plant communities, and riparian resources, leading to increased erosion, loss of range productivity, invasion by exotic plants, and will result in desertification and increased listing of species as threatened or endangered. Other comments stated that the proposed rule would do little to promote recovery of streamside vegetation and would cause short-term damage to rangeland and wildlife habitat. Comments urged BLM to take actions to restore these lands, not weaken the grazing regulations, stating that the impacts of overgrazing on western rangeland streams, rivers, and fisheries have been documented. A comment said that BLM should allow the land to rest to heal from overgrazing.

These comments are largely directed at the grazing program itself, and are beyond the scope of this rule, which is focused on improving administration. The elimination of grazing from the public lands has not been considered here. This level of analysis was undertaken for the comprehensive changes made in the grazing regulations in 1995. Here, the changes are administrative in nature. Uses other than grazing can contribute to the problems discussed in the comments. Within its resource capabilities, BLM, in cooperation with users and the public, manages grazing and other uses in a manner that recognizes and addresses the potential for these impacts so that, ideally, they are avoided or mitigated. Under subpart 4180 of the grazing regulations, BLM must manage grazing, which includes rest from grazing where appropriate, in a manner that achieves, or makes progress towards achieving, standards for rangeland health. These standards have been developed on a regional basis and address watershed function, nutrient cycling and energy flow, water quality, habitat for endangered, threatened, proposed, candidate, or other special status species. The final rule will strengthen BLM's ability to implement grazing strategies that provide for maintenance or achievement of healthy rangelands.

A comment asserted that stocking levels are too high, and forage production is only

1/5

of its potential, resulting in conflict with rangeland health standards. Another comment stated that light stocking levels would provide the highest long-term financial return. A third comment stated that BLM should not allow utilization levels based on the take half/leave half principle.

These comments appear to suggest that stocking and utilization levels should be determined through a rulemaking process. What the rule is doing, on the other hand, is to make mainly procedural changes to improve administration of the grazing program as a result of experience implementing the 1995 rule. Stocking levels are better addressed during the land use and activity planning processes where the wide variety of relevant factors, such as climate, competing forage use, and other multiple use needs, can be addressed. The rule provides that monitoring data must be used to support a determination that livestock grazing is a significant cause for not achieving one or more rangeland health standards. Typically, utilization measurements or estimates are among the kinds of monitoring studies BLM conducts to inform analysis about the effects of stocking rates on land conditions at the local level.

A comment stated that BLM should not place western grazing rights above those in other areas of the country, and that the government provides competitive advantages to public land grazing permittees and lessees.

The comment raises fee and subsidy issues, which were not part of this rulemaking. The grazing fee formula was established in the Public Rangelands Improvement Act (PRIA) of 1978 (43 U.S.C. 1901, 1905) through 1985. The applicability of the formula was extended by Executive Order 12548 on February 19, 1986 (51 FR 5985). The regulatory provision implementing PRIA and the Executive Order appears at 43 CFR 4130.8-1. The formula is not affected by the costs of grazing in other parts of the country outside of the 11 western states of Montana, Idaho, Wyoming, Colorado, New Mexico, Arizona, Utah, Nevada, Washington, Oregon, and California. Fee and subsidy issues were examined in BLM's EIS for Rangeland Reform '94. This proposed

action addresses refinements of Rangeland Reform '94, including, among other things, inefficiencies in the current regulations.

A comment stated that BLM “subverted” the NEPA process by not adopting language contained in a preliminary internal administrative review copy of the draft EIS (DEIS) obtained by the commenting organization and submitted as an attachment to its comment. The draft document contained descriptions of significant adverse effects on wildlife, biodiversity, and special status species. The comment stated further that not using this document prevented BLM from taking a “hard look” at environmental consequences of the proposed rule, and resulted in an unlawful post-hoc rationalization.

BLM did not “subvert” the NEPA process by editing the administrative review copy of the DEIS. As is BLM's usual practice, staff scientists and analysts prepared preliminary drafts of portions of the DEIS, then circulated their preliminary drafts among their colleagues. We circulate such documents for internal review in an effort to produce a factually accurate, scientifically sound, and well-reasoned DEIS. The administrative review copy represents a “snapshot” of an early stage of BLM's deliberative internal review process. The text identified in the comment was revised as a result of further internal review for the reasons explained below.

Some of the revisions updated the draft document to reflect the actual contents of the proposed rule. For example, the administrative review copy stated that upland and riparian habitats would continue to decline because the proposed rule would worsen an “already burdensome appeals process” and decrease BLM's “ability to control illegal activities on public lands.” In fact, the rule did not propose to amend the “appeals process,” but remove provisions from the grazing regulations that were redundant to regulations of the Office of Hearings and Appeals in 43 CFR part 4. With respect to illegal activities on public lands, the rule proposed specific prohibited acts on grazing allotments that would constitute violations of the grazing regulations, with penalties including possible forfeiture of the grazing permit. However, the rule does not prevent BLM from enforcing other regulatory or statutory provisions on allotments or any other public lands.

The administrative review copy also concluded that the proposed rule would “greatly [diminish] the ability of the BLM to regulate grazing,” to the detriment of wildlife, because it would defer to state water law. Deference to state water law is an element of the existing provision on water rights (43 CFR 4120.3-9), and was not new in the proposed rule. BLM retains regulatory authority over grazing use on public lands regardless of ownership of water rights on public lands. A state water right does not confer an attendant right to graze livestock on public lands. Moreover, BLM may hold water rights for other beneficial uses, such as for wildlife, wildlife habitats, and recreation, even if it is precluded from holding water rights for watering livestock, which is currently the case in some states.

The administrative review copy was also further edited to cite legal requirements more precisely. In some cases, the conclusion based on the legal requirement was changed to reflect the agency's assessment of the effects of the rule. For example, the administrative review copy stated that “the increasing and burdensome administrative procedural requirements for assessment and for acquisition of monitoring data “ abrogate our responsibility for management of water quality as codified in Section 313 of the Water Quality Act of 1987 (Pub. L. 100-4); and further, committed to by [sic] designation by most [sic] as a ‘Designated Management Agency.’ Delaying modification of grazing prescriptions when an[d] where warranted and/or mitigation of damages created by failure to implement a Best Management Practices (BMP's) iterative process will continue to stress western watersheds.”

Section 313 of the Water Quality Act of 1987 amended various civil penalty provisions of the Federal Water Pollution Control Act (FWPCA) (33 U.S.C. 1251

et seq.

) that are not administered by BLM and are not relevant to federally-permitted grazing. BLM is, however, subject to requirements pertaining to nonpoint source pollution that may result from livestock grazing, and the appropriate citation is Section 313 of the FWPCA, 33 U.S.C. 1323, rather than Section 313 of the Water Quality Act of 1987.

Section 313 of the FWPCA requires Federal agencies to “comply with * * * all state * * * and local requirements * * * in the same manner and to the same extent as any nongovernmental entity.” 33 U.S.C. 1323(a)(1). BLM does not believe that delay in modifying grazing prescriptions or implementing BMPs would necessarily lead to violations of state and local water quality requirements, and that delay may be warranted in order to gather data that would lead to better-supported or more effective prescriptions and/or BMPs.

The BLM has also revised the assessment of the effects of changes made to subparts 4110 and 4180, which were initially characterized as “delaying tactics [and] could result in a protracted 7-year period for full implementation and change and this would result in a long-term adverse impact upon wildlife and biological diversity, including threatened and endangered and special status species * * *. Present BLM funding and staffing levels do not provide adequate resources for even minimal monitoring and the additional monitoring requirement will further burden the grazing decision process.”

BLM does not believe that long-term adverse impacts to wildlife and biological diversity would occur as a result of these changes, because both this rule and the existing regulations provide BLM discretion to begin changing active use, or to close a grazing allotment, when necessary for the protection of natural resources. BLM funding and staffing levels are issues that arise in annual budget development, and we plan to work to ensure that collecting data through rangeland monitoring remains a priority. While BLM agrees that the time frame for making decisions may increase due to the changes in subpart 4180, BLM anticipates that taking additional time to formulate, propose, and analyze an appropriate action will improve decision making, thus improving rangeland health in the long term.

We expect these aspects of the rule to have slight environmental effects because reliance on monitoring data is not new to the grazing program. At present, changes in grazing use may be supported by “monitoring, field observations, ecological site inventory, or other data acceptable to the authorized officer.” 43 CFR 4110.3. Decreases in grazing use must be supported by monitoring or field observation. 43 CFR 4110.3-2. Allotment management plans and resource activity plans “shall” provide for monitoring. 43 CFR 4120.2. Thus, monitoring is already an acceptable method of collecting data under the existing grazing regulations. To the extent that authorized officers already collect monitoring data to reach determinations under section 4180.2, the rule should have no environmental effect. To the extent that authorized officers currently rely on faster methods of data collection, the final rule could slow down the process of making determinations and thus potentially cause adverse environmental effects in

the short term. However, these effects would be mitigated to the extent that existing monitoring data may be sufficient to support determinations, and to the extent that better data result in more effective and more appropriate action.

The administrative review copy raised concerns pertaining to the definition in the rule of “interested public,” to provisions that no longer require the participation of the interested public in routine decisions such as permit renewals, and to provisions requiring cooperation with Tribal, state, county, or local grazing boards. The administrative review copy stated that these proposals would “limit the ability of environmental groups to participate in the appeals process in the interest of wildlife * * *. This should result in long-term adverse impacts to wildlife and special status species.” With respect to grazing boards, the administrative review copy stated that the rule would “give greater emphasis to local entities that favor extraction of forage and water resources at the expense of wildlife and biological diversity [and] give local entities greater influence over decision making than national interests who are excluded from this venue.”

The DEIS did not reflect these concerns because the rule does not prevent or limit the ability of an environmental group, or any other interested public entity, to “participate in the appeals process.” Under 43 CFR 4160.1, BLM would continue to provide copies of proposed and final grazing decisions to all members of the interested public. They would then have an opportunity to seek administrative remedies. With respect to grazing boards, BLM believes that cooperating with Tribal, state, or local-government established grazing boards in reviewing range improvements and allotment management plans on public lands would provide valuable input regarding these matters. Moreover, under section 4120.5-1, BLM would continue to cooperate with institutions, organizations (such as environmental groups), corporations, associations, and individuals to achieve the objectives of the grazing regulations. BLM notes that, often, national groups have local chapters and representatives that serve as a conduit for their views at the local level. BLM accepts input from all sources, regardless of affiliation. BLM believes that while some reduced input may result from changes in the rule, that this would not result in significant effects on wildlife because the interested public would be able to provide input into many grazing decisions and documents, such as range improvement plans, range development programs, Allotment Management Plans, Resource Management Plans (RMPs) and RMP amendments that govern these routine decisions.

The amendments of the administrative review copy were made before the DEIS was finalized, and they preceded the issuance of a final rule. The administrative review copy was amended to reflect the input from other reviewers regarding the likely effects of the rule and correct some factual errors.

D. Purpose and Need for Rulemaking

We received numerous comments regarding our reasons for this rule, including many form letters and form e-mails.

Several comments, although they supported the purpose of the proposed rule, stated that, with regard to the proposed provisions on grazing preference and removal of the term “permitted use,” active use phase-in, and title to range improvements, the rulemaking record lacks concrete examples of problems with the current regulations that warrant the proposed changes. The comments stated that this may cause problems because BLM is effectively rescinding the 1995 grazing regulations as to these particular matters and restoring the pre-existing status quo. The comments went on to say that an agency rescinding a rule must “explain why the old regulation is no longer desirable,” citing

Action on Smoking and Health

v.

C.A.B.,

699 F.2d 1209, 1216 (D.C. Cir. 1983). The comments concluded that, in the 1995 final rule, BLM rejected the concerns expressed in many of the comments on the 1994 proposed rule, and now needs to explain what has changed, including recognition that the concerns stated in those comments on the 1994 proposed rule have proven to be valid.

We believe the changes made in this final rule are consistent with the standard announced in

Motor Vehicle Manufacturers Ass'n of the United States, Inc.

v.

State Farm Mutual Automobile Insurance Co.,

463 U.S. 29 (1983): “An agency's view of what is in the public interest may change, either with or without a change in circumstances. But an agency changing its course must supply a reasoned analysis.”

Id.

at 57. We have supplied the requisite reasoned analysis for the changes in the Record of Decision and in the respective section-by-section discussions in this preamble.

Some comments stated that the current rules are consistent with the TGA because they have been tested in court, and that BLM should comply with Supreme Court rulings.

The changes being made in this final rule are based on years of experience implementing the 1995 regulations, and on comments received on the proposed rule and DEIS. In some instances, we found that provisions of those regulations were impairing our ability to protect and enhance rangeland health. For example, providing for sole United States ownership in range improvements led to a reduction in range improvement applications throughout the time that the regulations have been in effect. Also, requiring BLM to take action by the start of the next grazing year after determining that existing grazing management practices or levels of grazing use were significant factors in failing to achieve standards of rangeland health has been seen to be an impracticable decision because it sets a deadline that is impossible to meet in most instances. Further, it is counterproductive because BLM has had to divert resources from rangeland management and monitoring to deal with legal challenges that arise when we fail to meet the unreasonable deadlines. In one of those legal challenges, a Federal appellate court interpreted existing section 4180.2(c) “to require the BLM not merely to begin the procedures set forth in 43 CFR §§ (sic) 4110, 4120, 4130, and 4160, but rather to complete them and issue its final decision by the start of the next grazing year.”

Idaho Watersheds Project

v.

Hahn,

187 F.3rd 1035, 1037 (9th Cir. 1999). BLM had to divert resources from other locations to comply with the court's ruling. We will discuss these and other problems with the 1995 regulations in more detail when we address comments on the relevant provisions of the proposed rule.

The Supreme Court did not require BLM to retain its existing regulations. It found that the 1995 grazing regulations that it reviewed did not exceed the authority granted to the Secretary under the TGA. BLM does not dispute that the regulations being changed today were in compliance with the TGA and within the Secretary's statutory authority. Changes being made today also are in compliance with the TGA and are within the Secretary's statutory authority.

Some comments on the proposed rule suggested that BLM consider making changes through policy instead of through regulation changes.

BLM very often does make changes through policy rather than rulemaking. However, if regulations in place need to be modified to achieve improved management, we can only change those regulations through rulemaking.

A comment stated that BLM should not enact excessive regulations because they make it uneconomic for traditional ranching families to pursue their business.

Excessive regulation can increase costs to user groups. We believe the changes made in the final rule will make grazing on public land more efficient without negatively affecting the health of the public rangelands.

Many of the comments on the proposed rule

This text is long and has been trimmed here. Open the source document for the complete record.