Department Hearings and Appeals Procedures; Cooperative Relations; Grazing AdministrationExclusive of Alaska; Proposed Rule DEPARTMENT OF THE INTERIOR

SUMMARY: This proposed rule would amend the regulations that govern how

the Secretary of the Interior, through the Bureau of Land Management,

administers livestock grazing. This proposed rule would apply to all

lands on which the Bureau of Land Management administers livestock

grazing. This proposed rule would also amend the Department of the

Interior's appeals regulations pertaining to livestock grazing to

provide consistency with administrative remedies provided for in the

grazing regulations, and would amend the regulations on cooperative

relations to reflect changes in the organization of certain advisory

committees. The proposed changes are a part of an overall effort to

improve the management of the Nation's public rangeland resources.

Public review and comment on this proposal is invited.

An advance notice of proposed rulemaking was published in the

Federal Register on August 13, 1993 (58 FR 43208). Comments received on

the advance notice have been considered in identifying and refining key

components of the rangeland reform effort and in preparing this

proposed rule.

Due to the great volume of comments anticipated on this proposed

rule, the Department requests that reviewers identify the specific

section and paragraph label for the regulatory text on which they are

commenting. Specific statements of what regulatory text the reviewer

feels should be modified, and the reasons for the recommended changes,

are encouraged.

DATES: Comments on this proposed rule must be submitted in writing by

July 28, 1994. Comments postmarked after this date will not be

considered in the preparation of the final rule.

ADDRESSES: Send comments on this proposed rule to Rangeland Reform '94,

P.O. Box 66300, Washington, D.C. 20035-6300. Comments delivered to an

address other than above may not be considered in the preparation of

the final rule.

Comments on the proposed rule will be made available for public

inspection during regular business hours (7:45 a.m. to 4:15 p.m.),

Monday through Friday. Viewing of the comments can be arranged by

contacting the Bureau of Land Management at the telephone number

provided below.

FOR FURTHER INFORMATION CONTACT: Mark W. Stiles, Regulations Analyst,

Division of Legislation and Regulatory Management, Bureau of Land

Management, (202) 208-4256.

SUPPLEMENTARY INFORMATION:

Introduction

This proposed amendment to 43 CFR parts 4, 1780, and 4100 is part

of the Department of the Interior's Rangeland Reform '94 package. The

provisions of this proposed rule are necessary to ensure proper

administration of livestock grazing on the public rangelands and to

bring about reform in the management of rangelands for the improvement,

protection, and proper function of rangeland ecosystems. Many of the

proposals would result in greater consistency between the

administration of grazing on public rangelands by the Bureau of Land

Management (BLM) and administration of grazing on National Forest

System lands by the United States Forest Service (Forest Service). This

proposed rule would govern the BLM's administration of livestock

grazing on public rangelands. It is proposed under the principal

authorities of the Federal Land Policy and Management Act of 1976 (43

U.S.C. 1701 et seq.; FLPMA), the Taylor Grazing Act (43 U.S.C. 315 et

seq.), and the Public Rangelands Improvement Act of 1978 (43 U.S.C.

1901 et seq.)

An advance notice of proposed rulemaking was published in the

Federal Register on August 13, 1993 (58 FR 43208). The comment period

on the advance notice ended September 13, 1993, and was subsequently

reopened for a 30-day period that ended October 20, 1993. A notice of

intent to prepare an associated environmental impact statement (EIS)

was published in the Federal Register on July 13, 1993 (58 FR 37745),

and August 13, 1993 (58 FR 43234). These notices requested public

comment to assist in the scoping process for the EIS. The comment

period on the second notice of intent closed September 13, 1993, and

was subsequently reopened to correspond with the comment period on the

advance notice of proposed rulemaking. A booklet entitled Rangeland

Reform '94 was developed to describe the Secretary's proposal and

approximately 35,000 copies were distributed to all BLM grazing

permittees and lessees, interested Congressional staff, and other

interested parties, in late August and September of 1993.

Reviewers of this proposed rule may find it helpful to refer to the

advance notice of proposed rulemaking published in the Federal

Register, August 13, 1993, in their consideration of this proposed

rule. The advance notice contains some background material that has not

been reproduced in this proposed rule.

During a three-month period beginning November 17, 1993, Secretary

Babbitt met on 20 occasions around the West with groups which included

western governors, State and local officials, ranchers,

environmentalists and other public land users. He visited locations in

Colorado, Wyoming, and Oregon where on-the-ground consensus groups were

already engaged in addressing how land management decisions should be

made, and participated in hundreds of hours of discussion about the

components of rangeland reform. The meetings in Colorado, Idaho,

Arizona, New Mexico, Wyoming, Oregon, Nevada and Utah resulted in many

productive suggestions that are reflected in the new proposal.

As a result of public comments on the various documents distributed

in the summer of 1993 and the meetings attended by the Secretary, the

Department has modified many of the initial proposals for reforming

rangeland management. The modified Rangeland Reform '94 proposal is

summarized below. Much of the reform package is reflected in the

proposed regulatory text provided in this document. The public is asked

to review this revised proposal and provide comments and

recommendations for improvement. Due to the great volume of comment

anticipated, the Department requests that reviewers specifically

identify the section and paragraph labels for the proposed regulatory

text on which they are providing comment. Reviewers are also asked to

provide suggested wording changes whenever possible. Comments on this

proposed rule will be analyzed in detail and considered in the

preparation of a final rule. The Department also intends to hold public

meetings or hearings in western grazing States to obtain input on this

proposal. Announcement of the place and time for these meetings or

hearings will be made in a separate notice. The Department anticipates

publication of the final rule late in calendar year 1994.

In addition to this proposed rule, the Bureau of Land Management

and the Forest Service, as a cooperating agency, have prepared a draft

EIS. The draft EIS is currently being printed and prepared for

distribution, but advance copies are available for public review at the

Department of the Interior Library, First Floor, 18th and C Streets NW,

Washington, DC. Notice of availability of the draft EIS will be made

through a separate publication in the Federal Register. The draft EIS

analyzes in detail the proposed action and alternatives for improving

the management of the Nation's public rangelands, including regulatory

changes proposed in this rule. The draft EIS also invites public

comment.

Rangeland Reform '94

Rangeland Reform '94 is a proposal developed by the Department of

the Interior through BLM, in close cooperation with the U.S. Department

of Agriculture and the Forest Service, for effecting fundamental policy

changes, including adjustment of the Federal grazing fee, in its

rangeland management program. The purpose of the proposed changes is to

make the BLM's rangeland management program more consistent with

ecosystem management, to accelerate restoration and improvement of the

public rangelands, to obtain for the public fair and reasonable

compensation for the grazing of livestock on public lands, and to

streamline certain administrative functions. As a result of public

input on the initial proposal, and as a result of the BLM's preliminary

analysis of rangeland reform, two additional goals have been included:

to provide a mechanism for effective public participation in

decisionmaking, and to focus Federal and non-Federal management efforts

where they will result in the greatest benefit. In achieving these

goals the Department also intends to make BLM's administration of

livestock grazing more consistent with that of the Forest Service.

There are five major categories of proposed management actions

addressed in Rangeland Reform '94. These categories are (1) The Federal

grazing fee and associated incentives, (2) effective public

participation in rangeland management, (3) administrative practices,

(4) range improvements and water rights, and (5) resource management

requirements, including standards and guidelines. Proposed actions

within each of these categories are discussed in detail elsewhere in

this proposed rule.

Public Comment on the Initial Proposal

A total of about 12,600 letters were received from about 8,000

persons on the advance notice of proposed rulemaking, notice of intent

to prepare an EIS, and the Rangeland Reform '94 summary booklet. These

letters included over 56,000 individual comments. The specific aspects

of the advance notice of proposed rulemaking generating the most

comments were the grazing fee and water rights associated with range

improvement projects. Initial proposals related to affected interests,

grazing advisory boards, grazing permit and lease tenure, unauthorized

subleasing, standards and guidelines and full force and effect also

generated a great number of comments. Many letters expressed opinions

that the overall rangeland reform proposal was a disincentive for good

stewardship, would have major economic impacts on rural western

communities, and would result in the ``taking'' of private property

rights. A great number of comments supported the identified need for

consistency between regulations of the BLM and the Forest Service.

At the invitation of Colorado's Governor Roy Romer, Secretary

Babbitt met on nine separate occasions with a group of State and local

officials, ranchers, conservationists and other land users in Denver

and Gunnison, Colorado, for discussions regarding a process for

building a consensus-driven local approach to rangeland management. The

Colorado Working Group also made suggestions to change or improve the

advance Rangeland Reform '94 proposal introduced in August, 1993.

Similar meetings and follow-up discussions were held in Idaho, Oregon,

and Nevada, in addition to meetings in Arizona, New Mexico, Utah and

Wyoming.

These meetings with the Secretary involved hundreds of hours of

discussion. Input from these meetings resulted in many of the changes

and clarifications made in this proposed rule.

As a result of public comment the Department has made a number of

changes in the initial proposal. An attempt has been made to identify

the most substantial changes in the section-by-section analysis

provided in this proposed rule.

Brief Discussion of Major Elements of Rangeland Reform '94

The following presents the general proposals of Rangeland Reform

'94 and highlights significant changes made in response to public input

on the advance notice of proposed rulemaking. Detailed descriptions of

the specific regulatory changes being proposed are presented in the

section-by-section analysis following this discussion.

The Federal Grazing Fee and Associated Incentives

This proposed rule presents a formula that is intended to correct

the fundamental problems of the present fee.

The first problem is the wide disparity between rates charged for

livestock forage on private and State lands versus the rate charged on

Federal lands. In many western States, the fee for grazing on private

nonirrigated lands is far greater than it is on Federal lands. As the

following chart shows, in 1993, the private grazing land lease rates in

most western States were several times the Federal fee.

1993 Private Nonirrigated Grazing Land Lease Rates Dollars per Animal

Unit Month (National Agricultural Statistics Service)

Federal Fee

$1.86

Arizona

5.72

California

10.40

Colorado

9.70

Idaho

9.25

Kansas

11.30

Montana

11.40

Nebraska

17.00

Nevada

8.80

New Mexico

7.55

North Dakota

10.00

Oklahoma

7.10

Oregon

9.75

South Dakota

12.60

Texas

8.75

Utah

8.90

Washington

7.80

Wyoming

10.50

There are similar disparities between grazing fees charged on State

lands and the Federal fee. For grazing year 1994 the Federal grazing

fee established under existing regulations in 43 CFR part 4100, is

$1.98 per animal unit month (AUM). This fee compares to western State

trust land fees of as low as $1.53 in Arizona to fees ranging from

$4.00 to more than $20.00 in some of the western States for their 1994

grazing year. The different formulas, and the use of competitive

bidding in some States, make it difficult to present an average of the

State trust land grazing fees, but in the States of Nevada, New Mexico,

Wyoming, Montana, and Idaho, the largest States in terms of the number

of BLM AUMs authorized, the State trust land fees per AUM range from a

low of $3.00 in Wyoming to $4.53 in Idaho in 1994.

A second problem of the current fee formula is that while forage

value in the private market has increased substantially over time, the

Federal grazing fee formula has produced relatively small increases

and, in some years, decreases. In 1980, for example, the private

grazing land lease rate for the 11 western States, weighted by survey

weights as determined by the National Agricultural Statistics Service,

was $7.53, while the Federal fee was $2.36; thus, the difference

between the private and Federal rates in 1980 was $5.17. In 1993, the

private grazing land lease rate for the 11 western States was $10.03,

while the Federal fee was $1.86. Thus, the difference between the two

figures had jumped to $8.17.

The proposed formula would address the failure of the existing

formula adequately to reflect private grazing land market conditions by

including a base value that considers the cost differences of operating

on public lands as compared to private leases, as well as appraisal

data, and by annually adjusting the fee in proportion to changes in

private grazing land lease rates. After an initial phase-in period, the

fee would be adjusted annually to reflect the change in the private

land lease rate in the 17 western States (i.e., forage value index).

Although no explicit index based on production costs or value of

products produced is used, both factors influence the prices paid for

forage and so are, to some extent, implicit in the forage value index.

The proposed formula is essentially a return to the simpler formula

that was in effect before 1978 using an updated base value.

While the proposed rule would move toward greater equity among

fees, it would still result in a fee below the fees charged for grazing

on State lands in most western States, and would fall well below

private grazing land lease rates. The amount by which the fee would

increase is similar to recent increases that have taken place at the

State level; those increases have not led to noticeable shifts in the

livestock industry or economic effects on communities in those States.

This, when considered with the reasonableness of the proposed fee

increase and the fact that more than 73 percent of BLM permittees and

lessees would experience a fee increase of less than $1,000 per year,

offers evidence that the proposed change in the fee would generally not

have a significant impact on the stability of the dependent western

livestock industry and would not have a serious detrimental effect on

most permittees and lessees. Some permittees and lessees that are

highly dependent on Federal forage, do not have off-ranch income, and

have heavy debt loads may be required to make some financial

adjustments. These adjustments, in some circumstances, may include sale

of the ranch; however, it is expected that such sales will occur in

limited circumstances. Such sales, it should be noted, are occurring

and will continue to take place under current conditions, as well.

The economic impact on western communities is expected to be

localized and, in most areas, not significant because that portion of

the local economy that depends upon the use of Federal forage is

relatively minor.

The initial proposal generated a great amount of public comment

both for and against increasing the fee. Most of the comments related

to the anticipated impacts to individual operators and to rural western

economies. Many respondents suggested regional economic differences,

the cost of investment in public lands, and overall rangeland resource

conditions should be considered in determining grazing fees. Some felt

the proposed fee would be economically devastating, and some felt that

a fee increase was warranted, but the proposal represented too little

or too great an increase.

As a result of the public input gained following the advance notice

of proposed rulemaking and through the scoping process for the

environmental analysis of Rangeland Reform '94, the Department has

determined that the fee formula initially proposed represents a

reasonable and equitable method for calculating the fee. However, an

adjustment in the forage value index is proposed in this draft. A

provision for an incentive-based fee has also been added.

A base value of $3.96 per AUM to be used in calculating the grazing

fee is proposed in this rule. This value represents a midrange between

the results obtained through the use of two methods for estimating a

fair base value. Explanation of the methodology used in arriving at the

$3.96 base value is presented in the discussion of section 4130.7-1.

The proposed fee would be phased in over the years 1995 through 1997.

Thereafter, annual increases or decreases in the grazing fee resulting

from changes in the forage value index would be limited to 25 percent

of the amount charged the previous year to provide for a measure of

stability that would facilitate business planning.

This proposed rule would establish 1996 as the base year for the

forage value index used in the formula. The forage value index would

not be used to adjust the fee annually in response to market conditions

until the year 1997. This proposed rule would establish the 1995

grazing fee at $2.75, and the 1996 grazing fee at $3.50. Thereafter the

fee would be calculated, except as provided below, using the base value

of $3.96 multiplied by the revised forage value index. By definition,

the forage value index in the year 1997 would equal one; yielding a

1997 grazing fee of $3.96. In subsequent years the calculated fee would

depend on the changes in the market rate for private grazing land

leases as reflected by the forage value index. By comparison, the 1994

grazing fee established under the existing regulations is $1.98 per

AUM.

This change in the derivation of the forage value index is proposed

to reduce the uncertainty in the fee in the immediate future that

resulted from using a forage value index based on less current private

land lease rate data. Under the proposal presented in the advance

notice of proposed rulemaking, the fee would have been adjusted

annually by a forage value index based on the average price paid for

private grazing in the years 1990 through 1992. Assuming that forage

value index would have remained constant until the end of the phase in

period provided in the advance notice, the formula would have yielded a

grazing fee of $4.28 per AUM as compared to a 1997 fee of $3.96 per AUM

using the revised forage value index.

The Department intends to examine the effect of the proposed

grazing fee during the phase-in period to determine the need for any

adjustment in the fee formula.

New provisions have been added to the proposed rule that would

provide for an incentive-based grazing fee and would restrict

implementation of the $3.96 base value in the event a separate

regulation setting forth eligibility criteria is not issued by 1997. In

recent years the Department has considered several proposals for

incentive-based grazing fees targeted at permittees and lessees who

have improved rangelands, contributed to healthy, functional ecological

conditions, and fostered the achievement of resource condition

objectives. The Public Rangelands Improvement Act (43 U.S.C. 1901 et

seq.) and the Taylor Grazing Act provide authority for the Department

to implement incentive-based grazing fees. The Department recognizes

that an incentive-based fee would be a valuable tool for encouraging

stewardship. It was not possible to develop proposed eligibility

criteria for the incentive-based fee in time to include them in

Rangeland Reform '94. However, in anticipation of the issuance of a

separate rule setting forth eligibility criteria, the Department has

included in the proposed rule a 30 percent reduction in the grazing fee

for permittees and lessees who meet the criteria. The 30 percent

reduction would be implemented in the first grazing year after the

Department issues a separate final rule setting forth the eligibility

criteria. These criteria would focus primarily upon those permittees

and lessees who agree to participate in special rangeland improvement

programs characterized by best management practices, the furtherance of

resource condition objectives, and comprehensive monitoring. The

Department anticipates that eligibility criteria would require the

permittee or lessee to undertake management practices beyond those

otherwise required by law and regulation to benefit the ecological

health of the public rangelands.

To ensure timely development of that rule, this proposed rule would

provide that an alternative base value of $3.50 would be implemented in

1997 if the Department has not completed the eligibility criteria. The

Department intends to use its best efforts to issue a final rule

establishing incentive criteria in time to provide an opportunity for

the reduced fee in grazing year 1996. Such a discount would result in a

grazing fee of $2.77 per AUM in 1996 and 1997 for qualifying permittees

and lessees. Reviewers are asked to provide suggested criteria for

qualifying for the reduced fee that address the improvement and

maintenance of rangeland health, the furtherance of resource condition

objectives, and comprehensive monitoring.

Public Participation in Rangeland Management

An important element of true rangeland reform involves allowing

more Americans to have a say in the management of their public lands.

The American rangelands can be--and are--used for far more than

grazing. Hiking, birding, fishing, hunting, and mountain biking are

among the activities that are compatible with sound grazing practices.

All of the public interests will be served by the public lands as long

as all of the public interests are represented when decisions are being

made. Thus, increased public participation is essential to bringing

lasting changes to management of our public lands.

Included in this general category are proposals for the formation

of multiple resource advisory councils in most BLM administrative

districts and the involvement of the multiple resource advisory

councils in the development of standards and guidelines for grazing, a

provision allowing multiple resource advisory councils to establish and

select members of rangeland resource teams and technical review teams

for the purpose of providing input to be used by the resource advisory

council in developing recommendations, removal of references to the

National Public Lands Advisory Council, district advisory councils, and

grazing advisory boards, and modification of how interested members of

the public can become involved in specific grazing decisions.

Most comments on the advance notice, and a great deal of the input

gained through the Secretary's visits to western states, supported

modification of the initial proposal to expand the definition of

affected interests, eliminate grazing advisory boards and district

advisory councils, and create an advisory mechanism with broader

representation and much more direct involvement. Many comments

expressed a concern that local input would be overshadowed by interests

not directly affected by the decisions to be made while others asserted

that all citizens should have an equal say in the management of public

lands. There was also a great amount of interest in making public

participation more effective by encouraging consensus-based forms of

decisionmaking.

During the period of November 1993, through January 1994, Governor

Roy Romer of Colorado convened and conducted nine meetings of the

Colorado working group on rangeland reform. Although this working group

considered many of the proposals of Rangeland Reform '94, a key finding

of the group was that the current framework employed by the Department

and the BLM for encouraging community-based involvement was inadequate.

This issue became the focus of much of the Working Group's efforts. The

Working Group prepared a summary of their findings and a model for

enhanced community-based involvement. The Department agrees with the

findings of the group and has attempted to incorporate all key elements

of the model for public involvement in this proposed rule. The Working

Group's model is presented in its entirety below:

Models for Enhanced Community-Based Involvement in Rangeland Reform

January 20, 1994

The Colorado Rangeland Reform Working Group (``working group'')

is committed to these seven goals: (1) Healthy and sustainable

rangeland ecosystems, (2) healthy, sustainable and diverse economies

and communities (3) accountability of management and users of public

lands to broad public goals, (4) efficient and effective management

of our public lands, (5) fostering mutual respect among public land

users, (6) encouraging the retention of private land open space, and

(7) ensuring public lands are managed to comply with federal laws.

Consistent with these goals, the Colorado working group has

concluded that the current framework for public and community-based

involvement in public lands management is inadequate. That framework

could be significantly enhanced by experimenting with a bottom-up,

grass roots model of public participation that includes multiple

interests and some identified areas of responsibility for on-the-

ground rangeland management decisions, and ensures that all members

of the public who wish to actively participate in public rangelands

decisions, have a full opportunity to do so.

These recommendations are based on two principles: (1) This is a

Colorado model (the Colorado working group recognizes that this

Colorado model may not be applicable to other western states, and

that there may be other models that are better suited to those

states); and (2) that this Colorado model represents a change from

the current and/or traditional management and that this is an

experimental approach.

The working group has explored a number of different models

based in part on the favorable experiences of community and

ecosystem-based approaches like that underway in Gunnison, Colorado;

the ``Owl Mountain'' example in Jackson, County, Colorado; the

Coordinated Resource Management (CRM) experience near Craig,

Colorado; and the Federal Lands Program in Montezuma County,

Colorado. We recognize that these models may not be appropriate for

other states.

For purposes of discussion, the attached ``draft'' represents an

experimental approach to reforming the governance structure for

advisory boards and community-based rangeland decision-making. Based

on the working group's discussions to date, there is consensus on

the basic approach suggested by these models--and consensus on the

value of having Interior Secretary Bruce Babbitt share this draft

with other states and experts in the Department of the Interior for

their review. The group further agrees that many of the concepts and

ideas described in this model could be useful and applicable to the

U.S. Forest Service.

I. Multiple Resource Advisory Councils

The working group recommends that Multiple Resource Advisory

Councils be created in order to advise the BLM on a wide variety of

public lands issues, including grazing.

Group consensus exists that these councils should:

Focus on the full array of ecosystem and multiple use

issues associated with federal lands.

Have up to 15 members appointed on a nonpartisan basis

by the Interior Secretary. In making the appointments, the Secretary

shall consider the recommendations of the Governor. Membership shall

be self-nominated. Members could be nonresidents. Nominations will

be accompanied by letters of recommendation from local interest

groups which the nominee will be representing. At least one member

will be a local elected official.

Require that members bring to the table; (1) a

commitment to collaborate, (2) relevant experience or expertise, and

(3) a commitment to success and to apply the law.

Require that, in the aggregate, council membership must

represent the full array of issues and interests, custom and culture

related to federal land use, management, protection, and a general

understanding of the federal laws and regulations governing these

lands.

Participate directly and effectively in the preparation

and amendment of resource management plans.

Serve as a link between broad national policy direction

and the more specific local, on-the-ground actions and public input.

Have an effective role with respect to influencing or

guiding decisions about the implementation of resource area plans.

Require that all council members attend a ``rangeland

ecosystem course of instruction'' within three months of their

appointment. (The working group agreed to an acceptable standardized

curriculum and process--such as the Rangeland Ecosystem Awareness

Program developed by a subgroup--with a full understanding of the

associated costs and a number of the details yet to be worked out.)

Each council shall develop a policy on attendance to

encourage full participation of all members.

Jurisdictional Level

Since the purpose of Multiple Resource Advisory Councils is to

foster broader public input in planning and management activities by

federal public lands agencies, it makes sense for Councils to

operate at a Jurisdictional level that is: (1) Close to local

communities, and (2) close to the land planning decisions made by

federal agencies while still ensuring that they are readily

available and open to public comment.

The Colorado working group believes that to be effective in the

State of Colorado, these advisory bodies need to be created at the

Bureau of Land Management (BLM) District level. As appropriate, the

formation of these Councils should also allow for the integration of

both BLM and Forest Service units into one Council, and as the

respective agencies move toward management and planning on an

ecosystem basis, the Councils should re-align accordingly.

A governor or a Multiple Resource Advisory Council could

petition the Secretary to authorize these Councils at a BLM Resource

Area level if that was thought to be desirable. A Rangeland Resource

Team (described below) could make such a request to the Multiple

Resource Advisory Council.

Membership

All interests, uses, and values should be represented to the

extent possible, and a balanced composition should be achieved. The

District BLM manager (or his/her designee) would be non-voting ex-

officio members of the Council. Members would not be required to

reside in the counties served by the respective BLM District.

Members would be required to demonstrate relevant experience and

knowledge of the lands and communities in their Jurisdictional area.

A single individual could serve on only one Council.

Functions

The council would be advisory in nature. Council members would

be involved in the preparation, amendment and implementation of

federal agency land management plans in an advisory capacity. If the

Council disagreed with a federal land manager's decision that

relates to one of the Council's functions, the Council would have

the authority to submit a request for review of the decision to the

Secretary. The Secretary's office would have discretion on the

timeliness of a response, although a date certain could be

encouraged (20 to 30 days).

A Council's opportunity to influence land management decisions

shall be in compliance with the public participation process

outlined by federal laws (The National Environmental Policy Act, the

Federal Advisory Committee Act, the Administrative Procedure Act,

etc.) Opportunities to streamline and simplify these procedures need

to be explored (perhaps by fully utilizing other authorities noted

in the Federal Land Policy and Management Act and the Public

Rangelands Improvement Act).

The Council would have the authority to designate Rangeland

Resource Teams (described below) and Technical Review Teams to

address specific issues or problems in the District and/or serve as

fact-finding teams.

Councils should work to promote better public participation and

engagement in land management decisions, and to foster conflict

resolution through open dialogue and collaboration instead of

litigation and bureaucratic appeal.

Creation

If it is thought to be desirable to authorize Multiple Resource

Advisory Councils at other levels (i.e., below the BLM District

level), a governor or Multiple Resource Advisory Council could make

that request to the Secretary, or the Rangeland Resource Team could

make such a request to a Multiple Resource Advisory Council.

Multiple Resource Advisory Councils could be created or

``chartered'' in one of three ways:

1. By local initiative and official appointment by the State BLM

Director.

2. By local initiative and appointment by the Secretary.

3. By the Secretary with due consultation given to any

recommendations offered by the Governor.

II. Rangeland Resource Teams

Within each BLM District and administrative unit, local

Rangeland Resource Teams could be formed for the purpose of

enhancing public and community-based involvement in federal public

lands decision-making.

Rangeland Resource Teams are premised on the notion that

rangeland decisions ought to be made with good stewardship, with

appropriate multiple use and compliance with federal laws as guiding

principles. They are also premised on the following principles:

Permittees are in the best position over time to

exercise good stewardship, and to ensure full compliance with

federal laws, and that this opportunity is further enhanced by

direct dialogue and full participation of community-based

environmental and wildlife/sportsmen interests.

Good stewardship and full compliance with federal law

is enhanced and strengthened when community and public interests are

empowered with permittees, members of the public and agency

officials in making decisions.

A substantial portion of the increase in grazing fee

revenues from public lands should be retained and expended at the

local level for the purpose of promoting the ecological health of

the range and investing in good stewardship practices.

There is value in empowering individuals no matter

where they live to work in concert with federal and public interests

in resolving local public lands/rangeland issues at the community

level.

It is expected that these community-based Rangeland Resource

Teams will have a true ecosystem focus. With time and experience,

this model could be organized around eco-regions rather than

according to arbitrary land ownership and federal management

boundaries.

This vision cannot be achieved in one step. The opportunity

presented by this model is to encourage good stewardship by

permittees and other users, and to improve rangeland use, rangeland

ecosystems and management. The Colorado working group believes this

model is an important step toward enhancing these goals--while

laying the foundation for this broader vision.

Jurisdictional Level

In order to have credibility and to ensure that both community

and public interests are represented, Rangeland Resource Teams

should be allowed to spring up in as small an area as a single

allotment but in no case to go beyond an area larger than that

encompassed by the corresponding Multiple Resource Advisory Council

for that area.

Creation

They could be established and dissolved in any of the following

ways:

1. By local initiative and petition to a respective Multiple

Resource Advisory Council. If a petition is denied, the locals could

petition to be a FACA (Federal Advisory Committee Act) body (see

below).

2. By the Multiple Resource Advisory Council when deemed necessary

by that Council.

As a matter of formality, all appointments would be made by the

Multiple Resource Advisory Council. The teams could be terminated by

an affirmative act of the Council. Individual terms for team members

would be established by the Council.

Membership

Rangeland Resource Team membership would be limited to five

members from the following interests: Two resident permittees who

hold permits in the area, one resident at-large community

representative, one environmental representative and one wildlife/

recreation representative. The environmental representative and the

wildlife/recreation representative could be nonresidents; however,

all members shall be required to demonstrate substantial knowledge

and experience of the land and community where they serve.

Nominations will be accompanied by letters of recommendation from

local interest groups which the nominee will be representing.

These members would be required to participate in a ``rangeland

ecosystem course of instruction'' (the working group agreed to an

acceptable standardized curriculum and process--such as the

Rangeland Ecosystem Awareness Program developed by a subgroup--with

a full understanding of the associated costs and a number of the

details yet to be worked out), and would also be required to

demonstrate knowledge of the local rangeland ecosystem.

Under this alternative, at least one member of the resource team

must also be a member of the Multiple Resource Advisory Council.

Other team members could also serve as members of the Multiple

Resource Advisory Council--but such dual appointment would not be

required. For purposes of this section, residency means two years.

Functions

The primary function of Rangeland Resource Teams is to encourage

good stewardship, collaborative solutions and healthy rangeland

ecosystem management through collaboration and by providing

recommendations and information to the Multiple Resource Advisory

Councils.

These teams would encourage community and public participation

and problem-solving on the ground. Rangeland Resource Teams could

have authority to spend the 12.5% range improvement monies currently

under the authority of grazing advisory boards, according to state

law.

Rangeland Resource Teams would also be empowered to develop

proposed solutions for local rangeland problems and make

recommendations to Multiple Resource Advisory Councils. These teams

would participate in developing resource management plans, act as

fact finding bodies and make recommendations on rangeland

improvement monies.

The Multiple Resource Advisory Councils shall give careful

consideration to the recommendations, options and information

provided by the Rangeland Resource Teams.

Rangeland Resource Teams could be charged with assisting in

monitoring rangeland health and reporting on the full scope of their

activities to the Multiple Resource Advisory Councils on a regular

basis. In addition, Rangeland Resource Teams could be charged with

assisting in implementing programs such as the Rangeland Ecosystem

Course of Instruction.

In cases where Rangeland Resource Teams disagree with a

management decision by the federal land manager, the team could

petition the Multiple Resource Advisory Council for an opinion or

create a Technical Review Team (see below) to make recommendations

on specific issues. This does not preempt the ability of any citizen

to challenge a management or planning decision through the existing

administrative and legal appeal process.

Although federal or state land managers would not be members of

the Rangeland Resource Teams, open communication and collaboration

with federal land managers would be expected and encouraged. Federal

land managers should be ex-officio members of the boards.

Rangeland Resource Teams could petition the Secretary for

recognition as advisory bodies under FACA. In such cases, these

teams would be authorized to directly advise federal land managers.

III. Technical Review Teams

Technical Review Teams (TRTs) can be established on an as needed

basis by Multiple Resource Advisory Councils or Rangeland Resource

Teams if they are operating as a FACA body (see above). The

Rangeland Resource Teams may request the Multiple Resource Advisory

Councils to establish TRTs. In some instances, the need for the TRT

may be negated by the Rangeland Resource Team performing a fact-

finding role. Bodies that create TRTs (Multiple Resource Advisory

Councils or Rangeland Resource Teams that are functioning as FACA

advisory bodies) must have at least one member on those TRTs.

TRTs could be empowered to investigate and develop proposed

solutions to specific resource issues which may arise in the local

area. Such teams may also participate in the development of resource

management plans by providing information and options to the

Multiple Resource Advisory Councils. TRTs can function as ``fact

finding'' teams. Selection of TRT members should be at the

discretion of the Council and may be based on the recommendations of

the Rangeland Resource Team, but members should possess sufficient

knowledge and expertise about the resource issues in the area.

Federal land managers as well as members of other governmental

agencies could be ex-officio members of these teams.

The Federal Land Policy and Management Act of 1976 directs the

Secretary to establish advisory councils of not less than 10 and not

more than 15 members appointed from among persons who are

representative of the various major citizens' interests concerning the

problems relating to land use planning or the management of the public

lands located within the area for which an advisory council is

established. To comply with this direction and to improve on current

practices for obtaining advice on the management of public lands and

resources, the Department has adopted the suggestions, with appropriate

modifications, provided in the Colorado model for purposes of its

proposed rule.

The proposed rule would establish multiple resource advisory

councils. These councils would be subject to the Federal Advisory

Committee Act (5 U.S.C. Appendix; FACA). The multiple resource advisory

councils would focus on the full array of ecosystem and multiple use

issues associated with BLM-administered public lands. However, the

multiple resource advisory councils would not provide advice on

internal BLM management concerns such as personnel or budget

expenditures.

A multiple resource advisory council would typically be established

for each BLM administrative district, but under this proposed rule the

area of jurisdiction could be modified to permit ecosystem-based

management and planning. The Department intends that BLM State

Directors would be encouraged to consider whether the formation of

multiple resource advisory councils along ecoregion boundaries would be

a more effective organization for obtaining advice on the management of

public lands within their areas of responsibility. A governor or

multiple resource advisory council could petition the Secretary to

authorize these councils at a BLM resource area level.

The multiple resource advisory councils would advise the Secretary

of the Interior and Bureau of Land Management on matters relating to

ecosystem and multiple use issues associated with public lands and

resources under the administrative jurisdiction of the BLM. Multiple

resource advisory councils would provide advice on preparation,

amendment, and implementation of land use management plans and activity

plans, and would be consulted in the planning for range development and

improvement programs and the preparation of standards and guidelines

for grazing administration. The multiple resource advisory councils

would not be involved in matters such as personnel decisions, or the

allocation of budget except to the extent of providing advice on the

establishment of long-term plans and resource management priorities.

Multiple resource advisory council members would be appointed by

the Secretary or other Federal official designated by the Secretary.

Governors of States in which the councils would be organized would be

requested to provide a list of nominees for the Secretary's

consideration. The Secretary would encourage Governors to formulate

nominations through a process open to the public, and would consider

whether such a process was undertaken in evaluating the nominations. In

addition, a public call for nominations would be made through a notice

in the Federal Register as is provided in the existing 43 CFR 1784.4-1.

Persons could nominate themselves for membership. Nominations would be

required to be accompanied by letters of recommendation from local

interests that the nominee would be representing. The Department

invites public comment on whether such letters should be required to

come from individuals within the area to be served by the multiple

resource advisory council.

Membership of the multiple resource advisory council would reflect

a balance of views to ensure that the council represents the full array

of issues and interests associated with public land use, management,

protection and an understanding of the Federal laws and regulations

governing public lands. Individuals would qualify to serve on a

multiple resource advisory council because they have a commitment to

collaborative effort, possess relevant experience or expertise, and

have a commitment to the successful resolution of resource management

issues and to applying the relevant law. An individual may serve on

only one multiple resource advisory council.

Each of the multiple resource advisory councils would have 15

members, selected by the Secretary, with criteria for membership

clearly outlined. One third of the members of each multiple resource

advisory council would be selected from persons representing commodity

industries, developed recreational activities, or use of public lands

by off-highway vehicles; one third would be selected from

representatives of nationally or regionally recognized environmental or

resource conservation groups and wild horse and burro interest groups,

from representatives of archaeological and historical interests, and

from representatives of dispersed recreational activities; and one

third would be selected from persons who hold State, county, or local

elected office, and representatives of the public-at-large, Indian

tribes within or adjacent to the area, natural resource or natural

science academia, and State agencies responsible for the management of

fish and wildlife, water quality, water rights, and State lands. At

least one member of each multiple resource advisory council would be

required to be an elected official in the area covered by the council,

in accordance with the requirements of section 309 of FLPMA. The

proposed rule would require the Secretary or designee to provide for

balanced and broad representation from within each of the three

categories in appointing members of a multiple resource advisory

council.

All members of a multiple resource advisory council would be

required to attend training in the management of rangeland ecosystems

to ensure a common understanding of many of the scientific, economic,

social and legal considerations involved in managing public lands. The

Colorado working group developed a proposal for a ``Range Ecosystem

Awareness Program'' that would establish a basic curriculum that would

include: basic rangeland ecology, human resource development, the

relationship of public land resources to private lands and communities,

and the pertinent laws and regulations affecting rangeland management.

The Department intends to consider the Working Group's proposal in

developing the curriculum for the training of advisory council members

and invites public comment and suggestions on the content and structure

of this required training.

The Department intends that multiple resource advisory councils

would employ a consensus-building approach in developing

recommendations for the BLM manager to whom they would report. To

encourage this, the proposed rule would require that at least three

council members from each of the three groupings of interests must be

present to constitute an official meeting of a council, and at least

three members from each of the three groupings of interest must be in

agreement for a council to provide an official recommendation to the

BLM official to whom the council reports.

Where a multiple resource advisory council has concerns that its

advice is being arbitrarily disregarded, the council, upon agreement of

all members, could request that the Secretary respond to such concerns

within 60 days. This opportunity for direct communication with the

Secretary is separate and distinct from the administrative appeals

process and the Secretary's response would not constitute a decision on

the merits of any issue that is or might become the subject of an

administrative appeal.

Under this proposed rule the multiple resource advisory councils

could establish rangeland resource teams to enhance public and

community-based involvement in public lands decision-making pertaining

to livestock grazing. Rangeland resource teams would provide local

level input to the multiple resource advisory council and would serve

as fact-finding teams. The rangeland resource teams may, among other

functions, provide input to the multiple resource advisory councils for

grazing-related portions of land use plans and the planned expenditure

of range improvement moneys. At the direction of the multiple resource

advisory councils, rangeland resource teams may provide input and

recommendations to the multiple resource advisory council for an area

ranging from a single grazing allotment to the entire area under the

jurisdiction of the multiple resource advisory council.

Under the proposed rule, local citizens could petition the multiple

resource advisory council to establish a rangeland resource team, or a

rangeland resource team could be established by the multiple resource

advisory council on its own initiative. Rangeland resource teams would

have a minimal core membership that would include two resident

permittees who hold Federal grazing permits or leases within the area

for which input is sought, one resident at-large community

representative, one environmental representative and one wildlife/

recreation representative. For purposes of the proposal, in order to be

a resident, an individual must have lived within the geographical area

covered by the rangeland resource team for at least two years. The

environmental representative and the wildlife/recreation representative

could be nonresidents. However, all members would be required to

demonstrate substantial knowledge and experience of the land and

community where they serve. Nominations would be required to be

accompanied by letters of recommendation from the local interests that

the nominees will be representing. At least one member of the core

group would also be a member of the multiple resource advisory council.

All members of the rangeland resource team would be required to attend

the training in the management of rangeland ecosystems required for

members of the multiple resource advisory council.

Since the rangeland resource teams would provide local-level input,

perform a fact-finding role and provide options and recommendations to

the multiple resource advisory council, as opposed to serving in an

advisory capacity to Federal land managers, it is anticipated that

these groups would not be subject to the requirements of FACA. However,

rangeland resource teams could petition the Secretary for recognition

as advisory bodies under FACA. In such cases, the rangeland resource

teams would be authorized to directly advise Federal land managers on

matters pertaining to livestock grazing.

Rangeland resource teams would have opportunities to raise any

matter of concern with the multiple resource advisory council and to

request that the multiple resource advisory council form a technical

review team, as described below, to provide information and options to

the council for their consideration.

The proposed rule provides that multiple resource advisory councils

could establish technical review teams on an as-needed basis in

response to requests of interested citizens, the authorized officer, or

on their own motion. Technical review teams could also be established

on an as needed basis by rangeland resource teams that have been

chartered as FACA bodies. Technical review teams would be limited to

tasks assigned by the multiple resource advisory council or chartered

rangeland resource team and would report to the parent committee. The

technical review teams would consider specific issues for the purpose

of providing local level input and serving as fact-finding teams. The

technical review teams would not be subject to FACA because they will

not be advising Federal officials. A technical review team would be

dissolved by the parent committee upon completion of the assigned task.

The membership of a technical review team would be selected by the

multiple resource advisory council, or rangeland resource team where

chartered under FACA. The technical review team would be required to

include at least one member of the multiple resource advisory council

or chartered rangeland resource team.

Rangeland resource teams and technical review teams serving in a

fact-finding role for the purpose of providing input to the multiple

resource advisory council would in no way preclude the collection and

analysis of scientific data by BLM, or the BLM's use of technical

experts from outside of the Bureau. To the contrary, information

collected by the fact-finding teams and BLM should be complementary

and, in combination, would provide a multiple resource advisory council

with a solid basis from which to form a recommendation.

An alternative concept for technical review teams is also under

consideration. Under this alternative, technical review teams would be

formed to address specific unresolved technical issues by the BLM

authorized officer on the motion of the BLM or in response to a request

by the multiple resource advisory council. Where the technical review

team is requested by the multiple resource advisory council, the charge

for the technical review team would be written jointly by the BLM and

the advisory council. The purpose of the team would be to gather and

analyze data and develop recommendations to aid the decisionmaking

process, and functions of the team would be limited to tasks assigned

by the authorized officer. Review team members would be composed of BLM

or other government employees, with at least one member from a State

agency or a Federal agency other than BLM. The authorized officer would

also be allowed to employ and compensate private sector consultants who

would function as team members, and to compensate team members for per

diem and travel expenses. The authorized officer, in consultation with

the multiple resource advisory council, would determine team

membership, establish the task of the technical review team, appoint a

team leader, provide administrative support, and determine when the

team should be disbanded. In the selection of team members, preference

will be given to scientific and technical experts who have experience

in the bio-physiographic region of concern.

The authorized officer would be required to specify a time period

for the completion of the assigned task. Technical review teams would

terminate upon completion of the task assigned, or the time period

established by the authorized officer, whichever comes first.

The alternative concept for technical review teams would not result

in the formation of advisory committees under the Federal Advisory

Committee Act because team members would either be Federal or other

government agency employees, or paid consultants. The Department

invites public review and comment on this alternative as well as the

concept for technical review teams included in the proposed rule.

While specific functions for rangeland resource teams and technical

review teams are outlined in this proposed rule, there is another

reason for their creation. The teams are designed to facilitate input

from the many consensus groups that have formed--and will form--

throughout the West. Groups such as the Gunnison Group from Colorado,

the Oregon Watershed Improvement Group and Wyoming's Sun Ranch

Stewardship effort all took root voluntarily. These groups are proving

that ranchers, environmentalists and others can come to agreement on

land management practices. Rather than replace these kinds of groups,

the new teams are designed to bring them closer to the process, to

allow their influence to spread across the West.

Although FLPMA requires that the Secretary establish advisory

councils, there is no statutory requirement for the formation of

rangeland resource teams and technical review teams. While the

Department views the provisions for multiple resource advisory

councils' use of rangeland resource teams and technical review teams as

significant advances in the promotion of public participation and

consensus-based decisionmaking, the Department recognizes that the

success of the concept would hinge on many factors. Active

participation, willingness to donate time and travel expenses,

willingness to work collaboratively toward recommendations to the

advisory councils, and knowledge of resource management principles are

all critical to the success of the rangeland resource team and

technical review team concept.

In recognition of the demanding requirements for the success of the

two forms of input teams, the Department is considering an alternative

of proposing the use of rangeland resource teams and technical review

teams on an experimental basis rather than adopting the proposal BLM-

wide. The Department invites the public to comment on the merits of

providing for the use of rangeland resource teams and technical review

teams on an experimental basis. Comments are specifically requested on

the criteria for selecting areas for the experimental implementation of

the rangeland resource teams and technical review teams. Criteria could

include broad-based support for participation in a consensus-building

approach among the interested parties, and interested parties having

demonstrated the ability to work cooperatively and provide consensual

advice on public rangeland issues.

Range Improvements and Water Rights

The initial proposals pertaining to ownership of range improvements

and water rights generated a great number of comments. Most of the

comments were not opposed to the intent of the proposed changes to

conform with the common practice of keeping title to permanent

improvements in the name of the party holding title to the land.

However, many respondents expressed concern that the wording suggested

that the Federal government would take existing rights to range

improvements and water. The text pertaining to range improvement

ownership has been modified in this proposed rule and a new section has

been added to clarify the provisions for water rights associated with

livestock grazing on public lands.

The proposed rule would require that title to all new grazing-

related improvements constructed on public lands, or made to the

vegetation resource of public lands, except temporary or removable

improvements, would be in the United States. Since the proposed change

would be prospective, valid existing rights to range improvements and

compensation therefor under section 402(g) of FLPMA (43 U.S.C. 1752(g))

would not be affected. The permittee or lessee may hold title to

removable range improvements authorized as livestock handling

facilities such as corrals, creep feeders and loading chutes, and to

temporary improvements such as troughs for hauled water. With respect

to new permanent improvements, a permittee's, lessee's, or cooperator's

interest for contributed funds, labor, and materials would be

documented. This documentation is necessary to ensure proper credit

pursuant to section 402(g) of FLPMA, which provides compensation for

the permittee's or lessee's authorized permanent improvements whenever

a permit or lease is canceled, in whole or in part, in order to devote

the lands to another public purpose. New permanent water improvement

projects such as spring developments, wells, reservoirs, stock tanks,

and pipelines, would be authorized through cooperative range

improvement agreements.

The proposed rule would carry forward the proposals in the advance

notice regarding the distribution and use of range improvement funds

and add a requirement to consult with multiple resource advisory

councils during the planning of range development and improvement

programs.

The proposed rule provides consistent direction for the BLM

regarding water rights on public lands for livestock watering purposes.

It is intended to generally make BLM's policy consistent with Forest

Service practice, and with BLM policy prior to being changed in the

early 1980's.

Under the proposed rule, any new rights to water on public land for

livestock watering on such land would be acquired, perfected,

maintained, and administered under State law. In all cases involving

the development and registration, pursuant to State law, of new rights

to water on public land for livestock watering, cooperative agreements

will be used to provide that such livestock water rights are to be used

and maintained in conjunction with the grazing permit or leases and do

not give rise to a claim for compensation in the event the permit or

lease to which it is attached is canceled in whole or in part to devote

the lands to another public purpose.

The proposal would not create any new Federal reserved water

rights, nor would it affect valid existing water rights. Any right or

claim to water on public land for livestock watering on public land by

or on behalf of the United States would remain subject to the

provisions of 43 U.S.C. 666 (the McCarran Amendment) and section 701 of

FLPMA (43 U.S.C. 1701 note; disclaimer on water rights). Finally, the

proposal would not change existing BLM policy on water rights for uses

other than public land grazing, such as irrigation, municipal, or

industrial uses.

With respect to new water rights, some comments have suggested that

permittees and the United States file jointly for water rights on

public lands associated with livestock watering on public lands. When

permitted by State law or regulation, for ease of administration, co-

application with the lessee could be authorized, as it is in Wyoming.

The proposed rule does not contain such a provision, although if joint

filing is permitted under State law, and filing exclusively in the name

of the United States is not, then the proposed language would permit

joint filing. Comments are specifically sought on whether the rule

should mandate joint filing to the extent consistent with or even if

not permitted under, State law or if the current language in the

proposed rule is preferable. Comments are sought in particular on

whether co-applications should be allowed where it would not change the

underlying ownership of the water right.

Administrative Practices

Included in this category are disqualification of applicants for

grazing permits and leases, expedited procedure for the review of

administrative appeals and implementation of decisions, issuance of

grazing preference, a surcharge for the authorized leasing or

subleasing of grazing preference associated with base property or

pasturing of livestock owned by other than the permittee or lessee,

suspended nonuse, and unauthorized use.

The Department has made several changes in the initial proposals

affecting administrative practices in response to public input. Aspects

of the initial proposals regarding administrative practices that

received the greatest number of comments were adjustments in permit and

lease tenure as a performance incentive, full force and effect of

decisions, disqualification of applicants who have had permits or

leases canceled for violation of terms and conditions of State and

Federal grazing permits, authorized leasing and subleasing surcharges,

and the elimination of suspended nonuse.

The proposal to limit permit and lease tenure in some instances to

5 years has not been carried forward from the advance notice of

proposed rulemaking. Public comment on the advance notice suggested the

proposal would do little to encourage stewardship and would

inadvertently penalize operators new to public land grazing, especially

those starting in the business, by inhibiting their ability to secure

necessary financing. The Department agrees that the proposal in the

advance notice related to permit and lease tenure could result in

unacceptable impacts and has withdrawn that proposal.

The proposal in the advance notice of proposed rulemaking to place

grazing administration decisions in full force and effect generated

some confusion and has been clarified in this proposed rule. The

objective of placing decisions in full force and effect is to expedite

placing decisions into effect to benefit resource conditions and to

address administrative problems. The proposal would not take away the

ability of affected parties to file an appeal or to request a stay of

the decision until such time as the appeal is decided. The Department

believes this is critical to meet the goals of streamlining

administration and focusing limited resources where they can do the

most good, and has retained the substance of the initial proposal. An

attempt has been made to clarify the explanation of the proposed appeal

provisions in this rule.

Under the proposed rule, persons choosing to appeal a decision of

the authorized officer would be provided a 30-day period in which to

file an appeal. Appellants requesting a stay of the decision would be

required to file a petition for stay with their appeal. In the instance

where a petition for stay has been filed with an appeal, the Department

of the Interior's Office of Hearings and Appeals would have 45 days

from the expiration of the 30-day appeal period either to grant or deny

the petition for stay, in whole or in part. Thus, where a person has

filed a petition for stay of the decision of the authorized officer

along with an appeal, and where the request for stay is denied,

implementation of the decision could be delayed up to 75 days. In the

event a stay of the decision is granted, the decision would be stayed

until such time as a determination on the appeal is made.

The initial proposal to disqualify applicants for grazing permits

and leases as a result of cancellation of State or Federal grazing

permits and leases during the 36 months preceding application has been

modified in response to public comment. This proposed rule would limit

the provision for disqualification on the basis of cancellation of

grazing permits during the preceding 36 months to applications for new

or additional permits and leases. Also, consideration of an applicant's

history of compliance with the terms and conditions of State permits

and leases has been limited to State permits and leases within the

boundary of the Federal grazing allotment for which application has

been made. Cancellation of such State permits or leases within 36

months prior to application would disqualify applicants for new or

additional Federal permits or leases. A new provision has been added

that would make it clear that partial suspension of a Federal grazing

permit or lease would not be grounds for disqualification. Partial

suspension of a permit or lease is a measure used where actions of the

permittee or lessee are not determined to justify cancellation. The

Department feels that disqualification of applicants on the basis of

partial suspension would result in excessive punitive action and would

reduce the usefulness of partial suspension in addressing violations.

The advance notice of proposed rulemaking provided for automatic

disqualification on the basis of the suspension or cancellation of an

applicant's other Federal or State grazing permits or leases during the

36 months prior to application. Under the proposed rule, the

consideration of an applicant's history of performance on other Federal

or State grazing permits or leases would not apply to applicants for

the renewal of a BLM grazing permit or lease. The Department invites

comment on whether an applicant's history of performance on other

Federal and State grazing permits and leases should be added as a

discretionary, rather than automatic, basis for determining

qualification for the renewal of a BLM grazing permit or lease. Also,

the Department invites comment on whether a similar provision for a

discretionary review of past performance should apply to applicants for

new or additional BLM permits or leases, in addition to the automatic

disqualification where an applicant has had a Federal or State permit

canceled for violation during the 36 months prior to application.

The proposal presented in the advance notice of proposed rulemaking

to eliminate suspended nonuse generated concern that property rights

and financing agreements would be affected. The Department does not

agree with these comments. For the most part it appears that these

suspended AUMs have no real impact on ranches or on the condition of

public lands. The initial proposal was intended to remove all reference

to suspended nonuse because only in rare instances has forage placed in

this category been made available for livestock consumption. However,

given the contentious nature of the issue and the fact that the

Department views the matter as merely an administrative record-keeping

issue, this proposed rule does not carry forward the elimination of

suspended nonuse presented in the advance proposal.

Numerous comments were received on the Department's proposal to

levy a surcharge when the private property serving as a base for public

land grazing is leased or when livestock owned by other than the

grazing permittee or lessee are pastured on public lands. This proposal

was made in response to findings of the General Accounting Office (see,

e.g., RCED-86-168BR), the Office of the Inspector General (see report

#92-1-1364) that permittees and lessees who sublease are unduly

benefitting from their permits or leases. A major criticism of the

initial proposal was that it would penalize leasing arrangements with

sons and daughters of permittees and lessees who are grazing a few

animals as part of an educational or group project, or sons and

daughters who are trying to build a livestock herd in anticipation of

assuming all or part of the family operation. The Department recognizes

the need to avoid penalizing children of grazing permittees and lessees

in these situations and has provided for an exemption from the

authorized subleasing surcharge for sons and daughters of public land

permittees and lessees. A broader criticism, which surfaced during

meetings in Nevada, is that most pasturing agreements are a means of

financing available to ranchers who might not be able to finance their

own inventory, and that contrary to the findings of the General

Accounting Office reports, they do not involve windfall profits taken

by absentee landlords and permit or lease holders. Some Nevada

participants also suggested that any surcharge on the subleasing of

permits and leases should be formulated as a percentage of the return

on the sublease rather than a percentage of the Federal grazing fee.

The Department invites comment on these two considerations.

Some of the comments received on the proposals relating to

prohibited acts suggested that the proposed wording was subject to

broad interpretation that could lead to punitive action in response to

violations unrelated to grazing use. Subpart 4140, ``Prohibited Acts,''

would be amended to modify the list of acts that are prohibited on

public lands that could result in the loss of grazing permits or leases

under subpart 4170. Particular attention is invited to proposed section

4140.1(b)(12), which refers to Federal or State laws or regulations

concerning, among other things, conservation or protection of natural

and cultural resources or environmental quality when public lands are

involved or affected.

There are, of course, a great many laws or regulations that might

fit within this category. These laws have independent enforcement

authority; that is, violations are dealt with under penalty provisions

in these laws themselves. This section of the existing regulations

provides the possibility, in addition to these penalty provisions, of

loss of the grazing permit or lease for violations.

It is not the intent of the proposal for the authorized officer to

take enforcement steps involving the grazing permit or lease for any

and all violations, no matter how de minimus or technical; or for

violations of laws that, while they do deal with protection of natural

and cultural resources or the environment, do not centrally reflect

upon the ability of the permittee or lessee to be a good steward of the

public lands.

Rather, the intent is to provide the possibility of loss of the

grazing permit or lease whenever more than de minimus violations of

laws occur that do concern, in a more than remote way, the management

of the public lands. Subsection (b)(12) (i) through (vi) contains a

narrative description of the kind of laws that, in our judgment, do

directly concern stewardship ability on the public lands. It is

difficult to go beyond such a narrative description to list such laws

with precision, particularly in the text of the regulation itself. If

that were done, a new rulemaking would be necessitated each time a law

were changed by the Congress, which happens not infrequently.

Furthermore, a detailed list of laws, with statutory and section

numbers, would be lengthy and probably require the assistance of a law-

trained person to decipher.

A proposed list of such laws, more than de minimus violations of

which could lead to loss of a grazing permit or lease, follows. Public

comment is specifically invited on the list. Upon promulgation of the

final rule, the final list of such laws would be made available to each

authorized officer and each permittee and lessee.

Animal Damage Control--7 U.S.C. 426

Bankhead-Jones Farm Tenant Act--7 U.S.C. 1012

Federal Environmental Pesticide Control Act, as amended--7 U.S.C. 136,

et seq.

Federal Insecticide, Fungicide & Rodenticide Act--7 U.S.C. 135, et seq.

Airborne Hunting Act--16 U.S.C. 742j-1

Anadromous Fish Conservation Act--16 U.S.C. 757a, et seq.

Antiquities Act--16 U.S.C. 431, et seq.

Archeological Resources Protection Act--16 U.S.C. 470aa, et seq.

Bald and Golden Eagle Protection Act--16 U.S.C. 668

Endangered Species Act, as amended--16 U.S.C. 668aa, et seq.--16 U.S.C.

1531, et seq.

Erosion Act (Soil Conservation)--16 U.S.C. 590a, et seq.

Fish and Wildlife Act of 1956--16 U.S.C. 742a, et seq.

Fish and Wildlife Coordination Act--16 U.S.C. 661, et seq.

Historic Sites, Buildings and Antiquities Act--16 U.S.C. 461, et seq.

Lacey Act, as amended--16 U.S.C. 851, et seq.

Migratory Bird Conservation Act--16 U.S.C. 751, et seq.

Migratory Bird Treaty Act--16 U.S.C. 703, et seq.

National Forest Management Act of 1976--16 U.S.C. 1600, et seq.

National Historic Preservation Act, as amended--16 U.S.C. 470, et seq.

National Trails System Act, as amended--16 U.S.C. 1241, et seq.

National Wildlife Refuge System Administration Act, as amended--16

U.S.C. 668dd, 668ee

Wild and Scenic Rivers Act--16 U.S.C. 1271, et seq.

Wild Free-Roaming Horses and Burros Act--16 U.S.C. 1331, et seq.

Wilderness Act--16 U.S.C. 1131, et seq.

Wildlife Restoration Act--16 U.S.C. 669, et seq.

Clean Water Act, as amended--33 U.S.C. 1251, et seq.

Clean Air Act, as amended--42 U.S.C. 7401, et seq.

Comprehensive Environmental Response, Compensation, and Liability Act,

as amended--42 U.S.C. 6911, et seq.

Resource Conservation and Recovery Act, as amended--42 U.S.C. 6901, et

seq.

Safe-Drinking Water Act, as amended--42 U.S.C. 201, et seq.

Solid Waste Disposal Act, as amended--42 U.S.C. 6901, et seq.

Federal Land Policy and Management Act of 1976, as amended--43 U.S.C.

1701, et seq.

Public Lands Unlawful Enclosure Act--43 U.S.C. 1601, et seq.

Public Rangelands Improvement Act of 1978--43 U.S.C. 1901, et seq.

Taylor Grazing Act--43 U.S.C. 315, et seq.

References to the term ``affected interests'' have been removed

throughout the rule and replaced with the term ``interested public.''

The proposed rule would also remove the authorized officer's current

discretion to determine whether an individual is an ``affected

interest.'' These changes were not included in the advance notice of

proposed rulemaking.

The reason for the change is to provide a consistent standard for

participation by the public. Any party who writes to the authorized

officer to express concern for the management of livestock grazing on

specific grazing allotments will be recognized as a member of the

``interested public'' under the proposed rule. This allows the BLM to

develop a record to assure notification of proposed and final decisions

and to involve the ``interested public'' in the consultation process.

Requirements for consultation with the interested public have been

added in sections of the proposed rule that deal with the initial

allocation of forage, development of activity plans and range

improvement programs, the issuance or renewal of grazing permits or

leases, and the establishment or adjustment of the terms and conditions

of grazing permits and leases.

The advance notice of proposed rulemaking included provisions that

would allow the authorized officer to issue final decisions without

first issuing a proposed decision in specified circumstances. This

proposed rule would carry forward the provision that the authorized

officer could directly issue final decisions when decisions are

necessary to protect rangeland resources from damage in ``emergency''

situations under section 4110.3-3(b), and would add that decisions to

close areas to certain forms of livestock use when necessary to abate

unauthorized use, as provided in section 4150.2(d), could be issued as

final decisions without first issuing proposed decisions. The

provisions are necessary to provide responsive action in these

circumstances. The other circumstances specified in the advance notice

that would not have required a proposed decision were nondiscretionary

decisions, decisions that were previously part of a broader final

decision that was initially issued as a proposed decision, and

decisions that involve the application of discretion within the

established terms and conditions of grazing permits and leases. These

categories have been removed in this proposed rule. However, there may

be circumstances where resource protection and administrative

efficiency could be enhanced by avoiding the delay of implementation

that occasionally can result from the protracted resolution of protests

of proposed decisions. In all cases, the right to appeal final

decisions to the Office of Hearings and Appeals would be retained. The

public is invited to comment on whether there should be additional

circumstances where the authorized officer should have the ability to

issue final decisions without first issuing a proposed decision.

A new provision has been included in the proposed rule to eliminate

the requirement for prolonged implementation of necessary reductions in

permitted livestock use when data, including field observations, show

grazing use or patterns of use are not consistent with standards and

guidelines, are causing an unacceptable level or pattern of

utilization, or grazing use exceeds the livestock carrying capacity of

the area. Under the existing regulations, necessary reductions in

livestock use of more than 10 percent have been phased in over a period

of five years. Although that provision may, in the short term, mitigate

some of the adverse effects on permittees and lessees, it has inhibited

responsive action in situations where reductions in use are most

needed. Under the proposed rule, the authorized officer, after

consultation with the affected permittee or lessee, the State having

lands or managing resources within the area, and the interested public,

would take action to reduce grazing use either by reaching an agreement

with the involved parties or by decision. The Department anticipates

that, in many cases, agreements can be reached that would result in

gradual reductions in use. However, the Department recognizes the need

to provide for responsive action where rangeland health and function is

not being maintained.

Other proposals within the category of administrative practice have

been modified somewhat in response to comments received, while

attempting to retain the general substance of the proposed actions.

Also, an attempt has been made to clarify many of the explanations of

proposals, and to refine the regulatory text to more accurately achieve

the objective of the initial proposal.

Resource Management Requirements, Including Standards and Guidelines

Public comments on the standards and guidelines included as an

appendix to the advance notice of proposed rulemaking generally

expressed doubt that it is possible to develop a set of national

standards and guidelines that could be universally applied to grazing

administration on public lands. Many reviewers recommended that

standards and guidelines should only be developed at a more local

level. Many comments also expressed uncertainty regarding whether the

standards and guidelines would have the effect of law given they were

presented as an appendix rather than proposed regulatory text.

The Department agrees that standards and guidelines prepared at a

more local level would be better tailored to fit resource conditions

and livestock management practices. Therefore, the Department has not

carried forward the standards and guidelines as included with the

advance notice. However, in order to promote greater administrative

consistency, and to focus management attention and resources where they

will result in the greatest environmental benefit, the Department

recognizes a need to establish clear national requirements for grazing

administration and guidance for the preparation of State or regional

standards and guidelines. These national requirements and guiding

principles for State or regional standards and guidelines have been

included in the text of this proposed rule. In addition, the Department

recognizes the importance of putting standards and guidelines in place

in a timely manner, and has provided a mechanism for doing so in this

proposal.

The Department intends that State or regional standards and

guidelines for grazing administration would be developed in

consultation with multiple resource advisory councils, interested

public, and others within 18 months following the effective date of the

final rule. In the event State or regional standards and guidelines

have not been completed and approved by the Secretary within 18 months

of the effective date of the final rule, fallback standards and

guidelines provided in this proposed rule would be implemented. The

Department feels this provision for fallback standards and guidelines

is needed to provide for necessary resource protection and to encourage

prompt action toward the development of State or regional standards and

guidelines. The fallback standards and guidelines would also provide a

benchmark by which to measure the adequacy of State or regional

standards and guidelines.

The national requirements, guiding principles for the development

of State or regional standards and guidelines, and the fallback

standards and guidelines proposed in this rule all focus on attaining

and maintaining healthy rangeland ecosystems, including riparian areas.

The Department recognizes that achieving and maintaining properly

functioning ecosystems is critical to the protection of public

rangelands and resources, and resource uses. Achieving and maintaining

healthy rangeland conditions greatly benefits resources and uses such

as wildlife and fish habitat, water quality, and recreational

activities. Although BLM land use plans and activity plans may provide

for achieving resource conditions that go beyond the benchmarks for

ecological health and functional condition proposed in this rule,

achieving properly functioning ecosystems is prerequisite to the

conservation of rangeland resources.

The national requirements for all grazing-related plans and

activities on public lands under this proposed rule include continuing

or implementing grazing practices that maintain or achieve healthy,

properly functioning ecosystems and riparian systems; continuing or

implementing grazing practices that maintain, restore or enhance water

quality and assist in the attainment of water quality that meets or

exceeds State water quality standards; and continuing or implementing

grazing management practices that assist in the maintenance,

restoration, or enhancement of the habitat of threatened or endangered

species, or species that are classified as candidates for threatened or

endangered species listing. These requirements are intended to reflect

the fundamental legal mandates for the management of public lands under

the Taylor Grazing Act, FLPMA, Endangered Species Act, Clean Water Act

(33 U.S.C. 1251 et seq.), and other relevant authorities. Where

existing management practices fail to meet these national requirements,

the BLM authorized officer would be required to take action as soon as

practicable but not later than the start of the next grazing year. This

would include actions such as reducing livestock stocking rates,

adjusting the season or duration of livestock use, or modifying or

relocating range improvements.

Standards and guidelines would be developed to provide further

guidance, within the framework of the national requirements, in the

administration of livestock grazing on public lands. Bureau of Land

Management State Directors, in consultation with the affected multiple

resource advisory councils, would be responsible for identifying the

appropriate geographical area for which standards and guidelines would

be developed. Standards and guidelines would be developed for an entire

State or for an ecoregion encompassing portions of more than one State.

Standards and guidelines would not be prepared for a smaller area

totally within the boundaries of a single State except where the BLM

State Director, in consultation with the multiple resource advisory

councils, determines that the combination of the geophysical and

vegetal character of an area is unique and the health of the rangelands

within the area could not be adequately protected using standards and

guidelines developed on a broader geographical scale. The intent of

this limitation on the geographical scope of standards and guidelines

is to provide for the development and application of uniform standards

and guidelines across an area including public lands of similar

character. This limitation would result in more consistent application

of standards and guidelines, and would encourage collaboration between

BLM offices, multiple resource advisory councils, and the public in

addressing the resource management needs and concerns of an area.

Standards and guidelines could be developed for ecoregions involving

public lands within more than one State for the purpose of ensuring the

consistent application of rangeland management measurements and

practices across an identifiable ecoregion.

This proposed rule would establish guiding principles to be

addressed in the development of standards and guidelines. The guiding

principles represent what the Department has identified as the resource

concerns and types of management practices that must be considered in

the development of standards and guidelines. The guiding principles for

the development of standards are intended to provide focus on riparian

area function and the minimum soil and vegetation conditions required

for rangeland ecosystem health. The guiding principles for the

development of guidelines for grazing administration provide focus on

the consideration of management practices that assist in or do not

inhibit meeting certain legal mandates and achieving and maintaining

rangeland health. Included in these guiding principles are the

requirements that State or regional guidelines address: grazing

practices to be implemented to benefit threatened or endangered species

and candidate species, and to maintain, restore or enhance water

quality; critical periods of plant growth or regrowth and the need for

rest from livestock grazing; situations in which continuous season-long

grazing, or use of ephemeral rangelands, could be authorized; the

allowable types and location of certain range improvements and

management practices; and utilization or residual vegetation limits.

The BLM State Director, in consultation with multiple resource

advisory councils, the interested public, and others, would be required

to develop standards and guidelines that are consistent with the

national requirements and the guiding principles. It is anticipated

that there may be a need to add additional standards and guidelines

consistent with the national requirements to reflect the State or

regional resources, the character of the public lands, local livestock

management practices, and community interests. For example, State or

regional guidelines may specify limitations on the season of livestock

use or thresholds for utilization by livestock in crucial big game

winter ranges. Multiple resource advisory councils, and their rangeland

resource teams and technical review teams, would play an important role

in designing standards and guidelines to meet conditions and concerns

encountered within the specific State or region by facilitating open

discussion and ensuring that the views of all interested parties are

considered in preparing their recommendations for the BLM. The BLM

would not implement State or regional standards or guidelines developed

pursuant to this proposed rule prior to their approval by the

Secretary.

The proposed rule includes a provision for fallback standards and

guidelines that would become effective 18 months after the effective

date of the final rule in the event that State or regional standards

and guidelines are not complete. The fallback standards and guidelines

would remain in effect until State or regional standards and guidelines

are completed and approved by the Secretary.

The fallback standards are largely based on indicators of soil

stability and watershed function, distribution of nutrients and energy,

and the ability of plant communities to recover. The three categories

of indicators, when considered in combination, have been found to be

key in assessing rangeland health. The standards are generally based on

the findings of the Committee on Rangeland Classification presented in

``Rangeland Health'' (National Research Council 1994) and BLM's

Riparian Area Management (TR1737-9, Process for Assessing Proper

Functioning Condition, 1993). A fourth fallback standard addresses

indicators of healthy flood plain structure and condition, a critical

component of healthy rangeland ecosystems and riparian systems.

The fallback guidelines would restrict management practices to

those activities that assist in or do not hinder meeting certain legal

mandates and achieving or maintaining rangeland health. The fallback

guidelines include the requirement that grazing management practices be

implemented that assist in or do not hinder the recovery of threatened

or endangered species, or assist in preventing the listing of species

identified as candidates for threatened or endangered species. This

guideline is intended to avoid the impacts associated with the listing

of more species as threatened or endangered. A second guideline would

require that grazing practices be implemented that would assist in

attaining and protecting water quality consistent with the Clean Water

Act. The fallback guidelines would also require that grazing schedules

include periods of rest during times of critical plant growth or

regrowth, and that continuous season-long grazing be limited to

instances where it has been demonstrated that such use would be

consistent with achieving or maintaining rangeland health and riparian

functioning condition, and with meeting established resource

objectives. Under the fallback guidelines, development of springs or

other projects affecting water would be designed to protect the

ecological values of the affected sites. Livestock management practices

or management facilities such as corrals, pipelines, or fences, would

generally be required to be located outside of riparian-wetland areas,

and where standards for these areas are not being met, the facilities

could be removed or relocated, or the management practices modified.

The fallback guidelines would require the establishment and application

of utilization or residual vegetation limits that would benefit the

diversity and vigor of woody and herbaceous species, maintain healthy

age-class structure in riparian-wetland and aquatic plant communities,

and would leave sufficient biomass and plant residue to provide for

sediment filtering, the dissipation of stream energy, and streambank

stability and shading. Finally, the fallback guidelines would require

that allotment management plans and other activity plans addressing

livestock grazing that are developed or amended after the fallback

guidelines become effective specify desired plant communities,

including minimum percentages of site vegetation cover, and incorporate

utilization limits for both riparian and upland sites to assist in

achieving or maintaining proper functioning condition.

The Department recognizes that the proposed fallback standards and

guidelines may not fit all situations. A provision has been included in

the proposed rule that would allow BLM State Directors to adjust the

fallback standards and guidelines, subject to approval of the

Secretary, to fit State or local conditions. However, in tailoring the

fallback standards and guidelines to more local conditions, the BLM

State Directors must ensure that the general purpose of each of the

fallback standards and guidelines is met.

The national requirements proposed in this rule, and all standards

and guidelines, whether fallback, State, or regional would be

implemented subject to the National Environmental Policy Act of 1969

(42 U.S.C. 4331 et seq.; NEPA) and applicable land use planning

regulations. The national requirements and guiding principles for State

and regional standards and guidelines are analyzed in the draft EIS for

Rangeland Reform '94. The fallback standards and guidelines are also

analyzed in the draft EIS. Any additional NEPA analysis required during

development of State or regional standards and guidelines would tier to

the analysis of national requirements and standards and guidelines

presented in the EIS for Rangeland Reform '94.

The BLM planning regulations direct that actions be in conformance

with BLM land use plans. It is anticipated that in most instances,

established standards and guidelines, and associated implementation

actions, would be in conformance with existing land use plans, although

in some cases land use plans may require modification.

It is the Department's intent to develop State or regional

standards and guidelines, complete plan conformance tests, and

undertake necessary plan amendments within 18 months of the effective

date of the final rule. Development of the State or regional standards

and guidelines and any plan amendments that are necessary would occur

simultaneously. Thus, State or regional standards and guidelines would

be implemented as they are finalized and approved by the Secretary. If

this has not occurred within 18 months of the effective date of the

final rule, fallback standards and guidelines would be put in place

until the State or regional standards and guidelines are completed. The

Department envisions that all rangelands administered by the BLM under

43 CFR part 4100 would have enforceable standards and guidelines by the

end of the 18-month period.

Implementation of the national requirements and the standards and

guidelines for grazing administration would be accomplished by

directing specific actions to promote or achieve the requirements and

standards and guidelines. The specific actions needed to implement the

requirements, standards, and guidelines would be incorporated in the

terms and conditions of grazing permits and leases, and other grazing

authorizations. Actions needed to implement the requirements,

standards, and guidelines would also be incorporated in allotment

management plans or other activity plans as they are prepared or

amended.

The proposed rule would require that the authorized officer specify

terms and conditions that would ensure conformance with the national

requirements, standards, and guidelines in all grazing leases and

permits. These terms and conditions would be added at the time of

permit or lease issuance, including the transfer or renewal of permits

or leases. However, where the authorized officer determines that the

national requirements or established standards and guidelines are not

being met under existing terms and conditions, the terms and conditions

of grazing permits and leases and other grazing authorizations would be

modified as soon as practicable, but not later than the start of the

next grazing year.

Reflecting the national requirements and standards and guidelines

in the terms and conditions of grazing permits and leases would provide

the management mechanism to help achieve, to the extent practicable,

healthy rangeland ecosystems. While grazing administration may not be

the only factor affecting the health of rangeland ecosystems, it is the

Department's intent to ensure improvement in the context of grazing

management through the standards and guidelines for grazing

administration.

The Department intends that all high priority grazing allotments

would be reviewed for the need to modify terms and conditions to ensure

conformance with the national requirements, and standards and

guidelines within three years of the effective date of this rule.

Priority would be based largely on the review of riparian area

conditions. This review, in combination with incorporating terms and

conditions reflecting the national requirements and standards and

guidelines as permits and leases are issued, renewed or transferred,

should ensure that a large portion of BLM grazing allotments would be

protected by the national requirements and the standards and

guidelines. The public is invited to provide comments and suggestions

on the structure of the review of grazing allotments and the criteria

for determining the priority of allotments to be reviewed.

SECTION-BY-SECTION ANALYSIS

Part 4 of Title 43--Department Hearings and Appeals Procedures

Section 4.477 Effect of Decision Suspended During Appeal

The proposed rule would revise the heading of this section to

reflect that grazing decisions would no longer automatically be

suspended when an appeal is filed as provided in the proposed revision

of 43 CFR subpart 4160. The proposed rule would also remove other

references to suspension of the decision of the authorized officer upon

appeal.

Part 1780--Cooperative Relations

Section 1784.0-5 Definitions

The proposed rule would replace the term ``authorized

representative'' with ``designated Federal Officer'' to make the

terminology of the rule more consistent with the terminology of the

Federal Advisory Committee Act and 41 CFR 101-6.1019.

Section 1784.2-1 Composition

This section would be amended to remove the eligibility requirement

for grazing advisory board members. This requirement would no longer be

necessary with the discontinuance of the grazing advisory boards.

Composition for multiple resource advisory councils and their rangeland

resource teams and technical review teams would be provided for in the

specific sections of the proposed rule pertaining to such councils and

teams.

Section 1784.2-2 Avoidance of Conflict of Interest

The proposed rule would clarify that permittees and lessees would

be eligible for service on multiple resource advisory councils,

rangeland resource teams, and technical review teams. This change is

necessary to ensure that all stakeholders, including those with

financial interests in the management of public lands, are able to

provide input to multiple resource advisory councils so that resource

advisory councils would be able to develop recommendations based on

direct community and user input. The proposed rule would also provide

that no advisory committee, rangeland resource team or technical review

team member could participate in any matter in which such member is

directly interested. Furthermore, members of multiple resource advisory

councils would be required to disclose their direct or indirect

interest in Federal grazing permits or leases administered by BLM.

Section 1784.3 Member Service

The proposed rule would establish that appointments to advisory

committees would be for two-year terms unless otherwise specified in

the charter. Specific references to grazing advisory board, district

advisory council and National Public Lands Advisory Council

appointments, terms and election procedures, would be removed. Advisory

committees are established through individual charters or by statute.

Membership requirements, terms of appointments and election procedures

must be prescribed in these charters and are, therefore, not necessary

in this proposed rule.

Also, the provisions for reimbursement of committee members' travel

and per diem expenses would be modified to make clear that individuals

selected by committees to provide input, but who themselves are not

appointed committee members, shall not be eligible for reimbursement.

Under the proposed rule the newly formed multiple resource advisory

councils would play a greater role in advising BLM land managers than

the district advisory councils and grazing advisory boards they

generally replace. The Department expects that the expanded role of the

councils would require more frequent council meetings, resulting in

greater administrative, travel, and per diem expenses to be incurred by

BLM. The provision that members of rangeland resource teams and

technical review teams who are not also members of the parent advisory

council would not be reimbursed for expenses is intended to limit the

expenses to be incurred by the BLM. However, the limitation on

reimbursements for travel and per diem could affect the ability of some

persons to participate on the input teams. The public is asked to

provide specific comments and suggestions on whether this limitation is

appropriate or how it might be modified.

Section 1784.5-1 Functions and Section 1784.5-2 Meetings

These sections would be amended by replacing the term ``authorized

representative'' with the term ``designated Federal officer.'' These

changes provide consistency with the terminology of FACA.

Section 1784.6-1 National Public Lands Advisory Council, Reserved

Sections 1784.6-2 and 1784.6-3, Section 1784.6-4 District Advisory

Councils, and Section 1784.6-5 Grazing Advisory Boards

References to the National Public Lands Advisory Council, district

advisory councils and grazing advisory boards are removed in their

entirety and replaced with three new sections that would establish

multiple resource advisory councils and associated input teams.

Reserved sections 1784.6-2 and 1784.6-3 would be removed. The new

sections are discussed separately below.

Section 1784.6-1 Multiple Resource Advisory Councils

This section would provide for the establishment of multiple

resource advisory councils. One multiple resource council would be

established for each BLM administrative district except when prohibited

by factors such as limited interest in participation, geographic

isolation in terms of proximity to users and public lands, or where the

configuration and character of the lands is such that organization of

councils along BLM district boundaries is not the most effective means

for obtaining advice for the management of the ecosystems or resources

of the area. The exceptions are intended to provide for situations such

as those encountered in Alaska where it is difficult for interested

persons to participate because of extreme travel distances, or

situations where management of neighboring BLM districts or portions of

districts involving similar lands and ecosystems can best be served by

organizing a multiple resource advisory council along boundaries other

than BLM district administrative boundaries. The determination of the

area for which a multiple resource advisory council would be organized

would be the responsibility of the affected BLM State Director.

Organization by ecoregion boundaries would be encouraged where

appropriate. The Governors of the affected States and established

multiple resource advisory councils could petition the Secretary to

establish a multiple resource advisory council for a specific BLM

resource area.

Multiple resource advisory councils would provide advice to the

Bureau of Land Management official to whom it reports regarding the

preparation, amendment and implementation of land use plans. The

councils would also assist in establishing other long-range plans and

resource management priorities in an advisory capacity. The Department

intends that this would include providing advice on the development of

plans for range improvement or development programs and has included in

the proposed amendments to 43 CFR subpart 4120 a requirement for

consultation with multiple resource advisory councils in the planning

of range improvement or development programs. Multiple resource

advisory councils would not provide advice on personnel management, nor

would they provide advice on the allocation and expenditure of funds

subsequent to budget planning.

Appointments to multiple resource advisory councils would be made

by the Secretary. In making appointments, the Secretary would consider

nominations from the Governor of the affected State and nominations

received in response to a public call for nominations. The Secretary

would encourage Governors to develop their nominations through an open

public process. In reviewing nominations submitted by the Governors,

the Secretary would consider whether an open public process was used.

All nominations would be required to be accompanied by letters of

recommendation from interests or organizations to be represented that

are located within the area for which a council is organized.

The Secretary would appoint 15 members to each multiple resource

advisory council. Five members would be selected from persons

representing commodity industries, developed recreational activities,

or use of public lands by off-highway vehicles; five would be selected

from representatives of nationally or regionally recognized

environmental or resource conservation groups and wild horse and burro

interest groups, from representatives of archeological and historical

interests, and from representatives of dispersed recreational

activities; and five would be selected from persons who hold State,

county, or local elected office, and representatives of the public-at-

large, Indian tribes within or adjacent to the area, natural resource

or natural science academia, and State agencies responsible for the

management of fish and wildlife, water quality, water rights, and State

lands. The proposed rule would require that at least one of the members

appointed to each council must hold elected State, county, or local

office. An individual would not be allowed to serve on more than one

multiple resource advisory council at any given time.

The proposed rule would require council members to have

demonstrated experience or knowledge of the geographic area for which

the council provides advice. The Department seeks comment as to the

necessity of this requirement, particularly as it applies to experts.

For purposes of the multiple resource advisory councils, the

Secretary would rely on the provisions of the current regulations found

at 43 CFR 1784.3(f), governing the removal of advisory council members.

The proposed rule would require that all members of multiple

resource advisory councils would attend a course of instruction in the

management of rangeland ecosystems that has been approved by the BLM

State Director. This requirement is intended to ensure a common general

understanding of the resources management principles and concerns

involved in management of the public lands. Public comment and

suggestions are invited on the content and structure of this required

training.

The proposed rule provides that an official meeting of a multiple

resource advisory council requires at least three members from each of

the three broad categories of interests from which appointments were

made. Formal recommendations of the council would require agreement by

at least three members of each of the three broad categories of

interests that attend an official meeting.

Multiple resource advisory councils would be provided the option of

requesting Secretarial review where the council believes its advice has

been arbitrarily disregarded by the BLM manager. If requested, the

Secretary would respond directly to a council's concerns within 60

days. Such a request would require agreement by all 15 members of the

council. The Secretary's response would not constitute a decision on

the merits of any issue that is or might become the subject of an

administrative appeal and would not preclude an affected party's

ability to appeal a decision of the authorized officer.

Section 1784.6-2 Rangeland Resource Teams

The proposed rule would provide for the formation of rangeland

resource teams by a multiple resource advisory council on their own

motion or in response to a petition by local citizens. Rangeland

resource teams would be formed for the purpose of providing local level

input and serving as fact-finding teams for issues pertaining to

grazing administration. Rangeland resource teams would provide input

and recommendations to the multiple resource advisory council on public

land grazing management issues within the area for which the rangeland

resource team is formed. The geographical scope of a rangeland resource

team would not exceed the area for which the advisory council provides

advice. Rangeland resource teams organized under a multiple resource

advisory council would not provide advice to the Federal land manager.

Rangeland resource teams would consist of five members selected by

the multiple resource advisory council. Membership would include two

persons holding Federal grazing permits or leases within the area for

which the team is formed. Additional members would include one person

representing the public-at-large, one person representing a nationally

or regionally recognized environmental organization, and one person

representing national, regional, or local wildlife or recreation

interests. Members representing grazing permittees or lessees and the

local public-at-large would be required to have resided within the area

for which the team would provide advice for at least two years prior to

their selection. Persons selected by the council to represent the

public-at-large, environmental, and wildlife or recreation interests

could not hold Federal grazing permits or leases. The proposed rule

requires that at least one member of the rangeland resource team be

selected from the membership of the parent multiple resource advisory

council.

The multiple resource advisory council would be required to select

rangeland resource team members from nominees that qualify by virtue of

their knowledge or experience of the lands, resources, and communities

that fall within the area for which the team is formed. All nominations

for membership would be required to be accompanied by letters of

recommendation from the local interests to be represented. The

membership provisions are intended to ensure that rangeland resource

teams are able to represent key stakeholders and interests in providing

input to the more broadly organized multiple resource advisory

councils.

The proposed rule would require that all members of rangeland

resource teams would attend a course of instruction in the management

of rangeland ecosystems that has been approved by the BLM State

Director. The Colorado working group developed a proposal for a ``Range

Ecosystem Awareness Program'' that would establish a basic curriculum

that would include: basic rangeland ecology, human resource

development, the relationship of public land resources to private lands

and communities, and the pertinent laws and regulations affecting

rangeland management. The Department intends to consider the Working

Group's proposal in developing the curriculum for the training of

rangeland resource team members and invites public comment and

suggestions on the content and structure of this required training.

Rangeland resource teams would have opportunities to raise any

matter of concern with the multiple resource advisory council and to

request that the multiple resource advisory council form a technical

review team, as described below, to provide information and options to

the council for their consideration.

Although no specific provision has been made in the proposed rule,

rangeland resource teams could petition the Secretary for chartered

advisory committee status. Chartered rangeland resource teams would be

subject to the general provisions of 43 CFR part 1780 and the

provisions of the charter prepared pursuant to FACA.

Section 1784.6-3 Technical Review Teams

Under the proposed rule a multiple resource advisory council could

establish technical review teams, as needed, in response to a petition

of an involved rangeland resource team or on their own motion.

Rangeland resource teams chartered under FACA could also establish

technical review teams. Technical review teams would conduct fact

finding and provide input to the parent multiple resource advisory

council or chartered rangeland resource team. Their function would be

limited to specific assignments made by the parent committee, and would

be limited to the geographical scope and scope of management actions

for which the multiple resource advisory council or chartered rangeland

resource team provides advice. Technical review teams would terminate

upon completion of the assigned task.

Members of technical review teams would be selected by the multiple

resource advisory council or chartered rangeland resource team on the

basis of their knowledge of resource management or their familiarity

with the issues involved in the assigned task. At least one member of

each technical review team would be required to be selected from the

membership of the parent multiple resource advisory council or

chartered rangeland resource team.

PART 4100--GRAZING ADMINISTRATION--EXCLUSIVE OF ALASKA

Subpart 4100--Grazing Administration--Exclusive of Alaska; General

Section 4100.0-2 Objectives

The proposed rule would amend the objectives statement for part

4100 by including as objectives the preservation of public land and

resources from destruction and unnecessary injury, the enhancement of

productivity for multiple use purposes, the maintenance of open spaces

and integral ecosystems, and the maintenance of the stability of

communities depending on the western livestock industry.

Section 4100.0-5 Definitions

The proposed rule would remove two definitions, add five new

definitions, and revise 10 definitions in section 4100.0-5. Generally

these amendments would reduce redundancy and make the definitions more

concise, germane, and understandable. Several changes were made to the

definitions presented in the advance notice of proposed rulemaking,

most notably, the removal of the definition for ``Affected interest''

and replacement with the term ``Interested public.'' This new term is

used to recognize necessary public involvement in decisionmaking and to

make 43 CFR part 4100 more consistent with other BLM rules and those of

the Forest Service.

The proposed rule would redefine Active use to include conservation

use and exclude nonuse or suspended use.

The proposed rule would add a definition of Activity plan to mean a

plan for managing a use, or resource value or use, and would clarify

that an AMP is one form of an activity plan.

The definition of Actual use would be revised to clarify that the

term may refer to all or just a portion (e.g., a pasture) of a grazing

allotment.

A new definition of Affiliate addresses the controlling interests

of a permittee's business relationships. The term is used in

determining whether applicants have satisfactory records of performance

for receiving or renewing a permit or lease or in receiving additional

forage that becomes available for allocation to livestock grazing.

The definition of Allotment management plan (AMP) would be modified

to describe more clearly the focus and purpose of the plan, and to make

clear that an AMP is a form of activity plan.

A definition of Conservation use would be added to mean an activity

for the purpose of protecting the land and its resources from

destruction or unnecessary injury. The term would include improving

rangeland conditions and the enhancement of resource values or

functions.

The definition of Consultation, cooperation and coordination would

be modified to reflect the proposed discontinuance of grazing advisory

boards; to clarify that consultation, cooperation, and coordination

apply to the development, revision, or termination of allotment

management plans; and to include States having not only lands but also

resource management responsibility (e.g., wildlife, water quality) in

the subject allotment.

The proposed rule would redefine the terms Grazing lease and

Grazing permit to clarify what forms of use are authorized in leases

and permits and to clarify that the documents specify a total number of

AUMs apportioned.

The definition of Grazing preference would be revised to mean the

priority to have a Federal permit or lease for a public land grazing

allotment that is attached to base property owned or controlled by a

permittee or lessee, or applicant. The proposed revision would better

match the language of section 3 of the Taylor Grazing Act of 1934. The

definition would drop the reference to a specified quantity of forage,

a practice that was adopted by the former Grazing Service during the

adjudication of grazing privileges. Like the Forest Service, the BLM

would identify the amount of grazing use (AUMs), consistent with land

use plans, in grazing use authorizations to be issued under a lease or

permit.

A definition of Interested public would be added to mean an

individual, group or organization that has submitted written comments

to the authorized officer regarding the management of livestock grazing

on specific grazing allotments.

The definition of Land use plan would be revised to remove the

inference that all management framework plans would be replaced by

resource management plans.

A definition of Permitted use would be added to define the amount

of forage in an allotment that is allocated for livestock grazing and

authorized for use, or included as suspended nonuse, under a grazing

permit or lease. The definition was added to those included in the

advance notice of proposed rulemaking. The term replaces the animal

unit months of forage use previously associated with grazing

preference.

The definition of Range improvement would be expanded to include

protection and improvement of rangeland ecosystems as a purpose of

range improvements.

The definition of Suspension would be revised to reflect the

revision of the definition of the term ``preference.'' The term

``preference'' would be replaced with ``permitted use.''

A definition of Temporary nonuse would be added to refer to

permitted use that may be temporarily made unavailable for livestock

use in response to a request by the permittee or lessee.

The term Unauthorized leasing and subleasing would be defined to

mean leases or other agreements that have not been approved by the

authorized officer.

The definition of Utilization would be amended to mean the

consumption of forage by all animals consistent with the definitions in

the BLM Technical Reference 4400-3 and the Bureau Manual System for

Inventory and Monitoring.

Section 4100.0-7 Cross-References

This section would be amended to guide the public to the applicable

sections of the 43 CFR part 4 when considering an appeal of a decision

relating to grazing administration, and to 43 CFR part 1780 regarding

advisory committees.

Section 4100.0-9 Information Collection

This section would be added to conform to the requirements of the

Paperwork Reduction Act (44 U.S.C. 3501 et seq.). The section discloses

to the public the estimated burden hours needed to comply with the

information collection requirements in this proposed rule, why the

information is being collected, and what the information will be used

for by the BLM.

Subpart 4110--Qualifications and Preference

Sections 4110.1 Mandatory Qualifications

Although most applicants for grazing use would be engaged in the

livestock business, the proposed rule would clarify that mortgage

insurers, natural resource conservation organizations, and private

parties whose primary source of income is not the livestock business,

could meet the criteria for qualification for a grazing permit or

lease.

The proposed rule would add requirements that applicants for the

renewal or the issuance of new grazing permits or leases, and any

affiliates, must be determined by the authorized officer to have a

satisfactory record of performance based on specified standards.

Applicants for renewal must be determined to be in substantial

compliance with the terms and conditions of the expiring permit or

lease. In assessing whether an applicant for renewal is in substantial

compliance, the authorized officer would consider the number of prior

incidents of noncompliance with the requirements of 43 CFR part 4100,

as well as the nature and seriousness of any single incident of

noncompliance.

The proposed rule would deny a new permit or lease to those

applicants who have had Federal grazing leases or permits, or State

grazing permits or leases within the Federal grazing allotment for

which application is made, canceled due to violations of terms or

conditions during the 36 months preceding application. Applicants and

their affiliates that have been barred from holding a Federal grazing

permit or lease by court order would also be determined to be

disqualified.

The provisions pertaining to disqualification include changes made

to the provisions of the advance notice of proposed rulemaking.

Restricting the scope of consideration of the applicant's history of

performance under State leases to those State lands located within the

Federal grazing allotment boundary for which application is made is

intended to reduce the workload associated with obtaining and reviewing

State records. Also, the inability of the applicant to make use of

State lands within the Federal grazing allotment would often inhibit

the orderly administration of the Federal permit or lease.

The advance notice of proposed rulemaking provided for

disqualification on the basis of suspension or cancellation of certain

permits or leases. Under the proposed rule, suspension of grazing

permits or leases, in whole or in part, would not result in

disqualification.

The provisions for disqualification would also affect the

allocation of increased forage under Secs. 4110.2-3 and 4110.3-1 and

conflicting applications under Sec. 4130.1-2. These three sections

reference ``qualified applicants.''

The amendments pertaining to the disqualification of applicants are

intended to reflect the requirements of the Taylor Grazing Act and

FLPMA that public lands be managed in a way that protects them from

destruction or unnecessary injury and provides for orderly use,

improvement, and development of resources, as well as provisions for

renewing permits and leases except where violations of rules and

regulations and terms and conditions of the permit or lease have

occurred.

Section 4110.1-1 Acquired Lands

The proposed rule would revise this section to clarify that

existing grazing permits and leases on lands acquired by the BLM are

subject to the permit or lease terms and conditions that were in effect

at the time of acquisition. Upon expiration of the preexisting permit

or lease, grazing management of the acquired lands would become subject

to the provisions of 43 CFR part 4100.

Section 4110.2-1 Base Property

This section would be amended by clarifying that base property is

required to be capable of serving as a base for livestock operations

but it need not be used for livestock production at the time the

authorized officer finds it to be base property. A provision has been

added to the amendments presented in the advance notice to make clear

that the permittee's or lessee's interest in a base water previously

recognized as base property shall qualify as base property. Where

authorized water developments on public lands that have been previously

recognized as base property require reconstruction or replacement in

order to continue to service the same area, and the reconstructed or

new development has been authorized through a range improvement permit

or cooperative range improvement agreement, the permittee's or lessee's

interest in the new or reconstructed water development would be

recognized as base property.

Section 4110.2-2 Specifying Grazing Preference

This section would be renamed ``Specifying permitted use'' to

reflect the redefinition of the term ``grazing preference,'' and would

be amended to replace the term ``grazing preference'' with ``permitted

use.'' Also, the section would be amended to clarify that levels of

grazing use on ephemeral or annual ranges are established on the basis

of the amount of forage that is temporarily available pursuant to

vegetation standards prescribed by land use plans or activity plans.

Section 4110.2-3 Transfer of Grazing Preference

This section would be amended to reflect the new requirements of

Sec. 4110.1-1 pertaining to the applicant's history of performance and

by adding a new paragraph (f) to require that new permits or leases

stemming from transfer of the base property be for a minimum time

period of three years. These provisions are necessary to provide for

stability in meeting the objectives of these regulations for protection

and improvement of the rangelands and resources and to reduce the

administrative work in processing transfers. Currently about 1,850 of

the BLM leases or permits, approximately 10 percent of the total

number, involve leased base property.

Section 4110.2-4 Allotments

This section would be amended to clarify that designation and

adjustment of allotment boundaries include the authority for, and the

practice of, combining or dividing allotments when determined by the

authorized officer to be necessary to achieve resource condition

objectives or to enhance administrative efficiency. This section

includes changes in addition to those presented in the advance notice

of proposed rulemaking to clarify that modification of allotments must

be done through agreement or decision of the authorized officer, and to

make clear that the interested public would be involved in the

designation or adjustment of allotment boundaries.

Section 4110.3 Changes in Permitted Use

This section would be amended by replacing the term ``grazing

preference'' with ``permitted use,'' and by clarifying that changes in

permitted use shall be supported by monitoring data, field

observations, land use planning decisions, or data collected through

other studies. This section includes changes made in addition to those

presented in the advance notice of proposed rulemaking.

Section 4110.3-1 Increasing Permitted Use

This section would be revised by including the requirement that a

permittee or lessee, or other applicant has been determined to be

qualified under subpart 4110, by substituting the term ``permitted

use'' in place of ``grazing preference,'' and by clarifying the

requirements for consultation. Also, reference to a permittee's or

lessee's demonstrated stewardship would be added to factors to be

considered in allocating available forage. This section includes

changes made in addition to those presented in the advance notice of

proposed rulemaking.

Section 4110.3-2 Decreasing permitted grazing use

This section would be amended by revising the heading, revising

paragraph (b) to expand the list of methods for determining when a

reduction in grazing use is necessary, and by deleting paragraph (c).

The amendment would add to monitoring ecological site inventory and

other recognized methods for determining forage production as methods

of identifying when use exceeds the livestock carrying capacity of the

area considered. The amendment would also add a reference to national

requirements and standards and guidelines. Under this section the

authorized officer would be required to take or approve corrective

action when grazing use or patterns of use result in less than properly

functioning conditions of the ecosystem, as established by the proposed

national requirements and standards and guidelines and identified

through monitoring or field observations, or when use exceeds the

livestock carrying capacity. The BLM Technical Reference 4400-5

(Rangeland Inventory and Monitoring Supplemental Studies) describes

acceptable methodologies for estimating forage production. The revised

section would allow the use of other acceptable methods to estimate

rangeland carrying capacity to be used as the basis for making initial

adjustments in grazing use. Subsequent adjustments could be made as

monitoring data are collected and analyzed. The amendment would

therefore allow more responsive action when use or patterns of use

result in a failure to meet resource condition objectives.

This section includes changes made in addition to those presented

in the advance notice of proposed rulemaking.

Section 4110.3-3 Implementing reductions in Permitted Use

The proposed rule would rename the section, would remove existing

paragraph (a) and other requirements for phased-in reductions in

grazing use, and would amend existing paragraph (b) to remove the terms

``consultation, coordination and cooperation,'' and ``suspension of

preference'' and add in their place the terms ``consultation'' and

``reductions in grazing use,'' respectively, and provide, by way of

reference to Sec. 4110.3-2, for the application of national

requirements and standards and guidelines and the use of other methods,

in addition to monitoring, for determining the need for an initial

reduction. The change in the heading is intended to describe the

section more accurately. The removal of existing paragraph (a) and

other requirements for phased reductions in use would allow more

responsive correction of situations where grazing use exceeds carrying

capacity. Removing the phased implementation requirement would not

prohibit agreements or decisions that would allow phased reductions in

use. The cross reference to other methods of estimating forage

production and identifying and the use of monitoring or field

observations to identify when grazing use or patterns of use are not

consistent with the national requirements or standards and guidelines,

or grazing use is otherwise causing an unacceptable level or pattern of

utilization, would also allow more responsive action to improve the

rangeland condition. The Department does not intend that extended

monitoring would be necessary to begin needed adjustment of use. The

removal of the term ``coordination and cooperation'' would result in a

more precise statement of the requirements placed on the authorized

officer. The statutory requirement of FLPMA (43 U.S.C. 1752), as

amended by section 8 of the Public Rangelands Improvement Act of 1978,

for consultation, coordination, and cooperation applies to the

development, revision, and termination of allotment management plans.

Existing paragraph (c) would be redesignated as paragraph (b) and would

be amended to remove the word ``temporary'' because it implies only one

season while the influences of natural events such as drought could

significantly affect vegetation health and productivity for several

months or years after a drought has passed. Other minor amendments

clarify the action of the field manager and retain the special

provisions for making ``emergency'' decisions effective. This section

includes changes made in addition to those presented in the advance

notice of proposed rulemaking.

Section 4110.4-2 Decrease in Land Acreage

The proposed rule would amend paragraph (a) by removing the words

``suspend'' and ``suspension.'' As explained above, reductions in

authorized use under preference permits or leases would no longer be

recognized as suspended use.

Subpart 4120--Grazing Management

Section 4120.2 Allotment Management and Resource Activity Plans

The proposed rule would amend this section by revising the heading

and by adding reference to other activity plans that may prescribe

grazing management. It has been the BLM's policy to develop more

integrated activity plans for managing resources of an allotment, such

as coordinated resource management plans. The BLM strongly favors the

development of integrated activity plans over single purpose plans such

as allotment management plans (AMPs) because integrated plans allow

BLM, permittees or lessees, and other affected persons to take a

broader look at all of the management needs of an area while still

addressing actions specific to the various uses and resource conditions

of the area. The proposed rule would clarify that draft AMPs, or other

draft activity plans, may be prepared by other agencies, or permittees

or lessees. In addition to the initial proposal in the advance notice,

a provision has been made for the preparation of draft allotment

management plans by other interested parties. Allotment management

plans or other activity plans would not become effective until approved

by the authorized officer. Paragraph (a) would be amended by replacing

the reference to district grazing advisory boards with multiple

resource advisory councils and including State resource management

agencies in the activity planning process as explained above. The

amendment would also provide that plans shall include standards and

guidelines that are not included as terms and conditions of the permit

or lease. The amendment would provide that flexibility granted to

permittees or lessees under a plan shall be determined on the basis of

demonstrated stewardship. The requirement for earning flexibility is an

incentive for cooperating grazing operators to manage for the

improvement of rangeland conditions. The proposed rule would make the

inclusion of other than public lands in an allotment management plan or

other activity plan a discretionary action as opposed to a requirement

as worded in the existing regulations. Finally, this section would

reference the NEPA analysis and related public participation that is

required for the planning and revision of allotment or activity plans,

and would provide that the decision document following the

environmental analysis would serve as the proposed decision for

purposes of subpart 4160.

Section 4120.3-1 Conditions for Range Improvements

This section would be amended by inserting a new paragraph (f)

addressing reviews of decisions associated with range improvement

projects. The amendment clarifies the process for administering

protests and appeals of the decision and directs appeals through the

administrative remedies process (43 CFR part 4160) provided for in

grazing administration. At present, appeals of these decisions

regarding range improvements go to the Interior Board of Land Appeals

without an opportunity for a local field hearing on the facts of the

case as is the practice with other rangeland grazing program decisions.

Section 4120.3-2 Cooperative Agreements

The section heading would be revised to clarify that this section

deals with cooperative range improvements as opposed to ``cooperative

agreements'' with other Federal or State agencies. The proposed rule

would amend this section to make it clear that the United States would

have title to all new permanent grazing-related improvements

constructed on public lands. Title to temporary grazing-related

improvements used primarily for livestock handling or water hauling

could be retained by the permittee or lessee. This change conforms with

the common practice of keeping title of permanent improvements in the

name of the party holding title to the land. The amendment would not

change the agreements currently in effect.

Section 4120.3-3 Range Improvement Permits

This section would be amended to make it clear that a permittee or

lessee may apply for a range improvement permit to install, use,

maintain, or modify range improvement projects, whether permanent or

temporary, needed to meet management objectives established for the

allotment. The permittee would hold title to removable livestock

handling facilities and to temporary improvements such as troughs for

hauled water or loading chutes. The amendment would also clarify that

permanent water improvement projects would be authorized through

cooperative range improvement agreements. The proposed rule would

remove the provision that permittees or lessees would control the use

of ponds or wells by livestock. Permittees and lessees would be the

graziers and, therefore, would control livestock use of water sources.

The proposed amendment will not affect ownership or rights currently

held in a range improvement.

A provision was added to those presented in the advance notice to

make clear that the authorized officer would retain a record of

permittee or lessee contributions to specific authorized range

improvement projects. This record would be used in determining

compensation due the permittee or lessee from the BLM in the event a

permit or lease is canceled in order to devote the public lands to

another public purpose, including disposal of the lands. The record

would also be considered prior to the transfer of grazing preference.

The rule would provide for the BLM to mediate disputes about

reasonable compensation for the operation and maintenance of facilities

when another operator is authorized temporary use of forage that the

preference permit holder cannot use.

Section 4120.3-8 Range Improvement Fund

The proposed rule would add a new section to this part that

addresses the distribution and use of the ``range betterment'' funds

appropriated by Congress through section 401(b) of FLPMA for range

improvement expenditure by the Secretary of the Interior. The range

betterment fund has been called the range improvement appropriation by

Congress and is known by that title in the BLM. The proposed amendment

would provide for distribution of the funds by the Secretary or

designee. The proposed rule would provide that one-half of the range

improvement fund would be made available to the State and District from

which the funds were derived. The remaining one-half would be allocated

by the Secretary or designee on a priority basis. All range improvement

funds would be used for on-the-ground rehabilitation, protection and

improvements of public rangeland ecosystems. Current policy requires

the return of all range improvement funds to the District from which

they were collected. The BLM has found this not to be in the best

interest of the public because it prevents use of the funds in areas

where they are most needed and results in some offices experiencing

difficulty expending available funds efficiently. The proposed

amendment would correct the imbalance by ensuring that the funds are

distributed on a priority basis.

The proposed rule would clarify that range improvement includes

activities such as planning, design, layout, modification, and

monitoring/evaluating the effectiveness of specific range improvements

in achieving resource condition and management objectives. Maintenance

of range improvements and costs associated with the contracting of

range improvement was added to the list of activities included in the

advance notice of proposed rulemaking for which range improvement funds

may be used. Maintenance was an allowable use of range improvement

funds prior to a policy change made in 1982.

The proposed rule would require consultation with affected

permittees, lessees, and the interested public during the planning of

range development and improvement programs. Multiple resource advisory

councils would also be consulted during the planning of range

development and improvement programs, including the development of

budgets for range improvement and the establishment of range

improvement priorities.

Section 4120.3-9 Water Rights for the Purpose of Livestock Grazing on

Public Lands

This section was added in response to comments on language

pertaining to water rights that was presented in the advance notice.

This section would provide consistent direction for the BLM regarding

water rights on public lands for livestock watering purposes. Under the

proposed rule, any new rights to water on public land for livestock

watering on such land would be acquired, perfected, maintained, and

administered under State law, and in the name of the United States

unless State law prohibits it.

The proposal would not create any new Federal reserved water

rights, nor would it affect valid existing water rights. Any right or

claim to water on public land for livestock watering on public land by

or on behalf of the United States would remain subject to the

provisions of 43 U.S.C. 666 (the McCarran Amendment) and section 701 of

FLPMA (43 U.S.C. 1701 note; disclaimer on water rights). Finally, the

proposal would not change existing BLM policy on water rights for uses

other than public land grazing, such as irrigation, municipal, or

industrial uses.

Section 4120.5 Cooperation in Management

The proposed rule would add a new section on cooperation in

management to recognize and regulate cooperation with, among others,

State, county, Indian tribal, local government entities and Federal

agencies.

Section 4120.5-1 Cooperation With State, County, and Federal Agencies

This section would recognize existing cooperation with State cattle

and sheep boards, county and local noxious weed control districts, and

State agencies involved in environmental, conservation, and enforcement

roles related to these cooperative relationships. The Taylor Grazing

Act, Noxious Weed Control Act, FLPMA, Public Rangeland Improvement Act

(43 U.S.C 1901 et seq.), and other statutes and agreements require

cooperation with State, county and local governments, and Federal

agencies.

Subpart 4130--Authorizing Grazing Use

Section 4130.1 Applications

This section would make it clear that applications must contain the

proposed active grazing use, temporary nonuse, and conservation use.

This amendment is proposed to end confusion about the ``failure to

use'' provisions of subpart 4170. The inadvertent loss of permitted use

or preference due to punitive action in response to failure to make use

is easily avoided by applying for nonuse and receiving approval from

the authorized officer.

Section 4130.1-1 Changes in Grazing Use

This section would provide for field managers to make temporary

changes in authorized use, either increases or decreases, not to exceed

25 percent of the authorized use or 100 AUMs, whichever is greater,

following consultation with the affected permittees or lessees and the

State having land or responsibility for resources management within the

allotment. This would provide latitude to the authorized officer for

authorizing minor or incidental adjustments in grazing use without

extensive consultation, simplifying day-to-day administration. The

provision for 25 percent or 100 AUMS, whichever is greater, is intended

to specify what constitutes minor or incremental adjustments. The

Department proposes the 100 AUM limitation to provide sufficient

latitude in cases where minor adjustments, in terms of the total amount

of forage, would constitute a large percentage of the permitted use

(i.e., small permits or leases). Changes of a temporary nature could be

made in a timely manner when the proposed changes conform with the

applicable land use plan and standards and guidelines, and are within

the terms and conditions of the existing permit or lease. Examples of

the types of changes that would be considered under this section are

the activation of previously approved temporary nonuse, placing

permitted use in temporary nonuse, and the use of forage temporarily

available on ephemeral or annual ranges.

Section 4130.1-2 Conflicting Applications

This section would be amended by adding criteria to be considered

in granting a use authorization or permit or lease. The proposed rule

would incorporate the history of applicants' and affiliates' compliance

with the terms and conditions of Federal and State grazing permits and

leases and demonstrated stewardship of the public lands as criteria for

granting permits or leases where there is more than one qualified

applicant.

Section 4130.2 Grazing Permits or Leases

The permit and lease tenure proposals included in the advance

notice of proposed rulemaking have not been carried forward. Public

comment on the advance notice suggested the permit and lease tenure

provisions would result, among other things, in severe limitations on

the ability of prospective permittees and lessees to secure financing

for the purchase and operation of ranches. Under this proposed rule,

permits and leases would continue to be offered for 10-year terms

except in specified circumstances.

The proposed rule would clarify that all grazing permits and leases

issued, including the transfer or renewal of permits and leases, would

include terms and conditions addressing the national requirements and

standards and guidelines proposed under subpart 4180, as well as terms

and conditions establishing allowable levels, seasons and duration of

use, and other terms and conditions that would assist in achieving

management objectives, provide for proper range management, or assist

in the orderly administration of the public rangelands. Terms and

conditions reflecting the national requirements proposed under subpart

4180 would begin being incorporated in grazing permits and leases as

permits and leases are issued, including transfer or renewal, upon the

effective date of the rule. Standards and guidelines for grazing

administration would be reflected in the terms and conditions of

grazing permits and leases upon their completion or, in the absence of

the completion of State or regional standards and guidelines, as the

fallback standards and guidelines presented in section 4180.2 of this

proposed rule become effective.

A new paragraph has been added in addition to those presented in

the advance notice to make clear the requirements for consultation with

interested parties prior to the issuance or renewal of grazing permits

and leases.

The provision of the advance notice that would prevent the renewal

of permits and leases when the permittees or lessees are found to be in

repeated noncompliance with the terms and conditions of expiring

grazing permits or leases has been removed from this section. Section

4110.1--Mandatory qualifications, would require that applicants for

renewal must be determined to be in substantial compliance with the

terms and conditions of their grazing permit or lease. In assessing

whether an applicant for renewal is in substantial compliance, the

authorized officer would consider the number of prior incidents of

noncompliance with the requirements of 43 CFR part 4100, as well as the

nature and seriousness of any single incident of noncompliance.

Therefore, a separate provision in this section is deemed to be

unnecessary.

The provision of the advance notice that applicants for renewal

would be required to be found to not be in violation of the provisions

of 43 CFR part 4100 has been removed. Section 4170.1-1--Penalty for

violations, in the existing regulations provides for withholding

issuance of permits and leases when applicants are in violation of the

provisions of this part.

The provision of the advance notice that would prohibit the offer

or grant of permits and leases when the applicant refuses to accept the

terms and conditions of the offered permit or lease has been amended to

clarify that it would apply to applicants for renewal and new permits

and leases.

The proposed rule clarifies the application for and granting of

conservation use and temporary nonuse. Conservation use would be

established as one of the allowable uses a permittee or lessee may be

granted. The existing regulations grant the authorized officer the

discretion to place forage in nonuse for conservation purposes. The

change from the term ``nonuse for conservation purposes'' to

``conservation use'' is intended to clarify that conservation use is

allowable, when in conformance with applicable land use plans, activity

plans and standards and guidelines, and will allow the Department to

fulfill one of the requirements of the Taylor Grazing Act, which is to

``preserve land and its resources from destruction or unnecessary

injury'' (43 U.S.C. 315a).

Forage made available as a result of temporary nonuse may be

authorized for temporary use by another operator. Forage used for

conservation purposes would not be available to other livestock

operators. The procedures guiding approval of nonuse are proposed in

response to a recommendation from the March 19, 1986, Inspector

General's review of the grazing management program.

Section 4130.4-1 Exchange-of-Use Grazing Agreements

This section would include needed requirements that the agreements

for exchange of use will be in harmony with management objectives, and

will be compatible with existing livestock operations. The agreements

would be required to address the fair sharing of maintenance and

operation of range improvements and would be approved for the same term

as any leased lands that are offered.

Section 4130.4-3 Crossing Permits

This section would provide for terms and conditions for crossing

permits, a form of temporary use authorization. The proposed amendments

are consistent with the customary practices of BLM field offices.

Section 4130.5 Ownership and Identification of Livestock

This section would be amended to make it clear that, before grazing

livestock owned by persons other than the permittee or lessee, the

permittee or lessee is required to have an approved use authorization

and have submitted a copy of the documented agreement or contract that

includes information required for the BLM's administration of permits

and leases and management of rangeland resources. This generally does

not create a new requirement. Many field offices are currently

requiring the information to document the legality of the pasturing of

livestock owned by persons other than the permittees.

In addition to the proposals of the advance notice, this proposed

rule would add an exemption from some of the requirements for ownership

of livestock for sons and daughters of permittees or lessees in

specified circumstances. This modification is necessary to allow the

exemption of sons and daughters, who are grazing livestock on public

lands under their parents' permit or lease in specified circumstances,

from the authorized leasing or subleasing surcharge provided in

Sec. 4130.7.

Section 4130.6-1 Mandatory Terms and Conditions

This section would be amended through minor additions and deletions

that clarify that use shall not exceed the livestock carrying capacity

of the allotment, and by removing unnecessary references to previous

sections. The section would be further amended to add a paragraph (c)

that would require that standards and guidelines be reflected in the

terms and conditions of permits and leases.

Section 4130.6-2 Other Terms and Conditions

This section would be amended to provide for proper rangeland

management and to remove unnecessary language. The proposed amendment

would allow terms and conditions to provide for improvement of riparian

area functions and for protecting other rangeland resources and values

consistent with applicable land use plans. The amendments are

consistent with the themes of protection, improvement, and restoration

of the rangelands to increase overall productivity, and will enhance

multiple-use management as required by the applicable laws cited above.

The addition of paragraph (h), a provision affirmatively stating that

BLM shall have administrative access across the permittee's or lessee's

owned or leased private lands, is intended to address attempts made to

prevent the BLM from performing functions such as range use

supervision, compliance checks, and trespass abatement.

Section 4130.6-3 Modification

The proposed rule would amend this section to clarify consultation

requirements in the modification of terms and conditions of permits.

The amendment would identify the opportunity to be provided the public

for review and comment, or to give input, during the evaluation of

monitoring results or other data that provide a basis for decisions

regarding grazing use or management.

Section 4130.7-1 Payment of Fees

The proposed rule would amend this section by revising the grazing

fee formula, adding a provision for phasing in the grazing fee over the

years 1995 through 1997, providing for an adjustment of the fee formula

in the event separate final regulations prescribing qualification

criteria for an incentive-based fee are not completed, and providing

for a 25 percent cap on changes in the calculated fee from year to

year. The section would be further amended to make clear the definition

of a billing unit, to provide for assessing a surcharge for the public

landlord's share of authorized subleasing associated with Federal land

grazing, to provide for multi-year billing in specified circumstances

to reduce administrative workload associated with small grazing

allotments, to clarify that grazing use that occurs before a bill is

paid is an unauthorized use and may be dealt with under the settlement

and penalties sections of these regulations and may result in the

limitation of flexibility authorized under an allotment management

plan, and to provide for free use where the primary objective of

livestock use is to benefit resource conditions or management, such as

scientific study or the control of noxious weeds. The advance notice of

proposed rulemaking proposed to phase in the grazing fee over the

grazing years of 1994 through 1996. This proposed rule would also phase

in the revised grazing fee, but the initial phase would begin with

grazing year 1995.

The proposed amendment of the grazing fee formula has been prepared

in cooperation with the Forest Service. In reviewing potential

modification of the grazing fee formula the BLM and Forest Service

identified criteria by which any new fee proposal should be measured.

Those criteria are:

1. The fee charged for livestock grazing should approximate market

value. Using market value helps assure that the public receives a fair

return for the private use of publicly owned resources.

2. The fee should not cause unreasonable impacts on communities

that are not economically diverse or to livestock operations that are

greatly dependent on public land forage.

3. The grazing fee should recover a reasonable amount of government

costs involved in administering grazing permits and leases and should

provide increased funds to improve ecological conditions.

4. The fee system should be understandable and reasonably easy to

administer.

The present fee system, in effect since 1978, has been

controversial and criticized for the wide disparity between rates

charged for livestock grazing on private lands and those charged for

Federal lands. While the forage value in the private market increased

substantially over time, the Federal grazing fee has decreased during

some periods or had relatively small increases.

The proposed fee system would use a base value adjusted annually by

the change in the private grazing land lease rate. The proposed base

value was derived by using data from two different studies. The first

study is the 1966 Western Livestock Grazing Survey (WLGS), where over

10,000 individuals were interviewed to determine the costs of operating

on Federal lands, as compared to operating on private land leases.

Information on the private grazing land lease rate was also collected.

The WLGS determined that the westwide value for grazing Federal lands

equalled $1.23 per AUM for 1966. This value is updated to a 1991 base

value of $3.25 per AUM by multiplying $1.23 by 264, the percentage

change in the private grazing land lease rate from the base years 1964-

1968, and dividing by 100.

The second study is the 1983 appraisal of the value of grazing on

the BLM and Forest Service lands in the 16 western States. This

appraisal involved interviews with approximately 100,000 persons and

generated 7,246 usable records of fees paid for livestock grazing. The

appraisal divided the 16 western States into 6 pricing regions.

The appraisers concluded that the value of public land grazing

ranged from $4.68 per head month (equivalent to BLM's AUM for billing

purposes) in the southwest pricing region to $8.55 per head month in

the northern plains pricing region. In 1992, the appraisal was updated,

based on additional data for private grazi

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