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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/fr%3A94-7060

## Record

- **Collection:** Federal Register
- **Document type:** Uncategorized Document
- **Published:** March 25, 1994

## Text

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 allotme

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A94-7060. Public record. Not legal advice.