Department Hearings and Appeals Procedures; Cooperative Relations; Grazing AdministrationExclusive of Alaska

SUMMARY: This final rule amends the regulations that govern how the

Secretary of the Interior, through the Bureau of Land Management (BLM),

administers livestock grazing. This rule applies to all lands on which

BLM administers livestock grazing. This rule also amends the Department

of the Interior's appeals regulations pertaining to livestock grazing

to provide consistency with administrative remedies provided for in the

grazing regulations, increases public participation in the management

of the public grazing lands, and amends the regulations on cooperative

relations to reflect changes in the organization of certain advisory

committees. The changes will improve the management of the Nation's

public rangeland resources.

DATES: This rule will be effective August 21, 1995.

Section 4130.8-1(d) will not be implemented until the grazing year

beginning March 1, 1996.

ADDRESSES: Inquiries should be sent to the Director, Bureau of Land

Management, U.S. Department of the Interior, Room 5555, Main Interior

Building, 1849 C Street NW., Washington, DC 20240.

FOR FURTHER INFORMATION CONTACT: Charles Hunt, 202-208-4256.

SUPPLEMENTARY INFORMATION:

I. Introduction

II. Major Elements of the Department's Program To Promote Healthy

Rangelands

III. Summary of Rules Adopted

IV. General Comments

V. Section-by-Section Analysis and Responses to Public Comments

VI. Procedural Matters

VII. Regulatory Text

I. Introduction

This rule governs the Bureau of Land Management's (BLM)

administration of livestock grazing on public rangelands. The

provisions of this rule will ensure proper administration of livestock

grazing on the public rangelands. Many of the provisions will result in

greater consistency between the administration of grazing on public

rangelands by BLM and administration of grazing on National Forest

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

rule is promulgated under the principal authorities of the Federal Land

Policy and Management Act (FLPMA) of 1976 (43 U.S.C. 1739, 1740), and

the Taylor Grazing Act of 1934 (TGA) (43 U.S.C. 315a-r).

An advance notice of proposed rulemaking was published in the

Federal Register on August 13, 1993 (58 FR 43208). A notice of intent

to prepare an associated environmental impact statement (EIS) was also

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

Department also developed a booklet entitled Rangeland Reform '94,

describing the Department of the Interior's (Department) proposal.

Approximately 35,000 copies were distributed in late August and

September of 1993 to all BLM grazing permittees and lessees, interested

Congressional staff, and other interested parties. The Department

received a total of about 12,600 letters from about 8,000 persons on

the advance notice of proposed rulemaking, notice of intent to prepare

an EIS, and the Rangeland Reform '94 summary booklet. The Department

considered these comments in identifying and refining key components of

the rangeland improvement effort and in preparing a proposed rule and a

draft EIS.

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

of the Interior Bruce Babbitt (Secretary) met on 20 occasions around

the West with groups that included western governors, State and local

officials, ranchers, environmentalists and other public land users. He

visited local groups in Colorado, Wyoming, and Oregon who were already

engaged in addressing how land management decisions should be made, and

participated in extensive discussion about the components of rangeland

improvement. These meetings resulted in many productive suggestions

that were reflected in the proposed rule. Additionally, at the

invitation of Colorado's Governor Roy Romer, the Secretary met on nine

separate occasions with a group of Colorado State and local officials,

ranchers, conservationists and other land users in Denver and Gunnison,

Colorado, for discussions regarding a process for building a consensus-

driven local approach to rangeland management. Similar meetings and

follow-up discussions took place in Idaho, Oregon, and Nevada, in

addition to meetings in Arizona, New Mexico, Utah and Wyoming. These

meetings with the Secretary involved hundreds of hours of discussion.

On March 25, 1994, the Department published proposed rules in the

Federal Register (59 FR 14314), with a 120 day comment period to July

28, 1994. Subsequently, at the request of commenters, the comment

period was extended through September 9, 1994.

On May 13, 1994, the Department published in the Federal Register

(59 FR 25118) a notice of availability of the draft EIS. Approximately

11,000 copies of the draft EIS were mailed to State and Federal

legislators, western governors, major industry and environmental

groups, the media, individuals who had commented on the advance notice

of proposed rulemaking, and anyone else who requested a copy. All BLM

permittees and lessees were mailed an executive summary, and provided a

copy of the full document on request. Copies were also available

through all BLM State Offices as well as Forest Service Regional

Offices. The draft EIS analyzed in detail the proposed action and

alternatives for improving the management of the Nation's public

rangelands, including the proposed rule changes. On June 8, 1994, BLM

and the Forest Service held 48 hearings throughout the West on the

draft EIS and the proposed rulemakings; one hearing was also held that

day at BLM's Eastern States Office in Virginia. Hearings were preceded

by open houses staffed by Federal personnel to answer individual

questions about the proposed rule. The location and procedures for the

open houses and hearings were published in the May 16, 1994, Federal

Register and announced in news releases. More than 1,900 people

testified at the hearings. A transcript was made of each hearing. The

transcripts are part of the public comment record and were considered

during preparation of this final rule.

The Department received and considered more than 20,000 letters

from over 11,000 persons on the notice of proposed rulemaking and the

draft EIS. These letters included over 38,000 individual comments. The

specific aspects of the notice of proposed rulemaking generating the

most comments were the definitions, grazing fees, standards and

guidelines for grazing, and Resource Advisory Councils (RACs). The

objectives statement, mandatory qualifications, cooperative range

improvement [[Page 9895]] agreements, water rights, permits, and

prohibited acts also generated a great number of comments. Many letters

expressed opinions that the overall rangeland improvement proposal was

a disincentive for good stewardship, would have major economic impacts

on rural western communities, and would result in the ``taking'' of

private property. Others supported aspects of the proposal, such as

broadening participation in the decisionmaking process, requiring

permittees or lessees to be good stewards, cancellation of permits for

nonuse, and nonmonetary settlement of minor violations. All original

letters and transcripts have been kept on file in sequential order.

On December 30, 1994, the Department published in the Federal

Register a notice of availability of the Final EIS (FEIS). The agency

mailed over 14,000 individual copies to Federal agencies, United States

Senators and Representatives, the western governors, major

environmental and industry groups, individuals who commented either on

the draft EIS or the notice of proposed rulemaking or testified at the

field hearings, and anyone else who requested copies. Copies are

available from any BLM Resource Area office or Forest Service Forest

Office throughout the western States.

II. Major Elements of the Department's Program to Promote Healthy

Rangelands

This section presents the general provisions of the Department's

program to improve the public land grazing program.

Public Participation in Rangeland Management

Allowing more Americans to have a say in the management of their

public lands is an important element of improving the management of the

public rangelands. The American rangelands can be--and are--used for

far more than grazing. Hiking, birding, camping, fishing, hunting,

mountain biking and mineral development activities are among the

activities that are compatible with sound grazing practices. Section

102(a)(8) of FLPMA makes it clear that the Secretary is to manage the

public lands in a manner that will protect the quality of scientific,

scenic, historical, ecological, environmental, air, atmospheric, water

resource, and archeological values.

The Department believes that the public interest will be best

served if a wide range of interests are represented when decisions are

being made. Thus, increased public participation is essential to

achieving lasting improvements in the management of our public lands.

Under FLPMA, the Secretary is required to involve the public in

many phases of public land management, including the development of

regulations (section 102) and plans and programs (section 202). Section

309 authorizes the Secretary to provide for public participation in the

preparation and execution of plans and programs for the management of

public lands by establishing advisory councils that conform to the

requirements of the Federal Advisory Committee Act (FACA).

Consistent with these provisions, the proposed rule gave extensive

consideration to public participation in rangeland management. It

proposed the creation of RACs in most BLM administrative districts

which would be involved in the development of standards and guidelines

for grazing. The RACs would have had the option of establishing

rangeland resource teams and technical review teams for the purpose of

providing input to be used by the RACs in developing recommendations.

The RACs could request that the Secretary respond directly to their

concerns if the council believed its advice was being arbitrarily

disregarded. RAC members would be required to avoid conflicts of

interest and to disclose direct or indirect interests in Federal

grazing permits or leases, and to have experience or knowledge of the

geographic area under the purview of the council.

Many comments were received on the concept of public participation.

Almost all commenters supported the central principle--that public

participation in decisionmaking on rangeland management should be

enhanced. Comments on specific details of the proposal varied widely.

Many commenters stressed their belief that the proposal was too complex

and the resulting structure would create major administrative and

resource needs without significant benefits. Other major comment themes

addressed representation of various interests on all levels,

requirements that members have local expertise, residency requirements,

ability of the committees to participate in the development of

standards and guidelines, the opportunity for the councils to request

the Secretary to review issues, and the applicability of the FACA to

the rangeland resource teams and technical review teams, among others.

These comments are discussed in more detail in the section-by-section

analysis of this preamble.

The proposed rule also included a detailed discussion of a model

for enhanced community-based involvement in rangeland management

prepared by the Colorado Working Group on rangeland improvement. This

Working Group was convened by Governor Roy Romer, and met between

November 1993 and January 1994. Although the Working Group considered

this an experimental approach that might not be applicable to other

western States, the Working Group's model contained a number of

excellent ideas, which, in the Department's judgement, other States

might find useful in developing their own structures for public

participation. During the comment period, the Department also received

a number of suggestions concerning public participation from Governor

Mike Sullivan of Wyoming who had convened a Steering Committee on the

Management of Federal Lands. While the Committee noted that it did not

reach unanimity on all issues, the model for public participation

proposed by the group also contained many excellent ideas. The Wyoming

and Colorado documents were extremely helpful to BLM in formulating

this final rule, and the Department appreciates the work of the

individuals who participated in these efforts. Two models of public

participation included in the final rule were based heavily on the

Wyoming and Colorado proposals. The Wyoming and Colorado proposals

suggested that increased flexibility was needed in the development of

final requirements for public participation in rangeland management. In

response to these and other comments the Department has attempted to

develop a final rule that provides maximum flexibility for structuring

the public participation process.

FLPMA directs the Secretary to establish advisory councils of not

less than 10 and not more than 15 members. Members must be appointed

from among representatives of the various major citizens' interests

concerned with problems relating to land use planning, or with the

management of the public lands located within the area for which an

advisory council is established. At least one member must be a publicly

elected official. The Department envisions that the RACs formed in each

State under the final rule will fulfill these statutory requirements.

The RACs would also be subject to FACA (5 U.S.C. Appendix).

The rules as finalized today are designed to implement certain

basic requirements that are essential to fulfilling the requirements of

FACA, FLPMA, and the needs of the [[Page 9896]] Department's program to

improve management of the public rangelands:

--A RAC of 10-15 members, as required by Sec. 309 of FLPMA;

--Openness and balance as required by FACA, assuring participation of

commodity, environmental, and other interests;

--Consensus decisionmaking, with a majority of each group required to

send recommendations forward;

--A RAC that is strictly advisory, as required by FACA and other

statutes.

Consistent with many comments received, the rule provides a high

degree of flexibility so that decisions can be made locally about how

to structure the councils. Section 1784.6-1 of this final rule sets

forth basic requirements that must be met by all councils. Three

general interest groups will be represented, from which 10 to 15

members must be chosen in a balanced fashion. The first group includes

various commodity industries, such as grazing and mineral interests,

and other interests that benefit from use of public lands, such as

outfitters. The second group includes nationally or regionally

recognized environmental or resource conservation groups, wild horse

and burro interest groups, archeological and historical interests, and

representatives of dispersed recreational activities, such as birders

or hikers. The third group includes persons who hold State, county, or

local elected office, the public-at-large, Indian tribes within or

adjacent to the area covered by the advisory council, natural resource

or natural science academia, and State agencies responsible for the

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

lands.

RAC members will be appointed by the Secretary. This is a

requirement of both FLPMA and FACA. Governors of States in which the

councils will be organized will be requested to provide a list of

nominees for the Secretary's consideration. The Secretary encourages

Governors to formulate nominations through a process open to the

public. In addition, a public call for nominations will be made through

a notice in the Federal Register and other appropriate publications.

Persons can nominate themselves for membership. Membership of each RAC

will reflect a balance of views to ensure that the council represents

the full array of issues and interests within the area covered by the

council associated with public land use, management, protection and an

understanding of the Federal laws and regulations governing public

lands. Individuals can qualify to serve on a RAC if they possess

relevant experience or expertise and have a commitment to collaborative

effort, successful resolution of resource management issues and

application of the relevant law. Members must have experience or

knowledge of the geographic area under the purview of the council, must

be residents of a State in which the area covered by a RAC is located,

and must be supported by letters of recommendation from the groups or

interests they will represent. An individual may serve on only one RAC.

All members must receive training on issues related to rangeland

management.

All RACs will be required to have specified quorum and voting

rules, including the requirement that a majority of members from each

category support a proposal before a recommendation can be forwarded to

the authorized officer. Travel and per diem will be paid, and BLM will

provide administrative support for the councils. A BLM employee will be

named ``designated Federal officer'' as required by FACA.

All members of the council will be subject to conflict of interest

provisions. To facilitate implementation of Federal conflict of

interest requirements, council members will have to disclose their

direct or indirect interest in BLM leases, licenses, permits or

contracts. This does not mean that individuals with such interests

cannot serve on councils; however, no member can participate in

specific issues in which he or she has an interest.

The role of the RAC is to provide advice to BLM. Each RAC will

focus on the full array of multiple use issues associated with public

lands within its area of jurisdiction. They will consult on the

preparation of standards and guidelines for grazing administration. The

RACs will advise the Secretary and BLM--and other agencies as

appropriate--on matters relating to multiple use issues associated with

public lands and resources. They will also provide advice on

preparation, amendment, and implementation of land use management plans

and activity plans and consult in planning for range development and

improvement programs. RACs will not provide advice on internal BLM

management concerns such as personnel or budget expenditures.

Final Sec. 1784.6-2 provides three models that supply additional

detail on the structuring of public participation. Decisions about

which model will be used in particular areas will be made by the State

Directors of BLM, in consultation with affected Governors and other

interested parties. Model A is based heavily on the suggestions made by

the Colorado Working Group. It includes three levels of groups--the RAC

itself, local five member rangeland resource teams appointed by the RAC

based either on its own initiative or as a result of local requests,

and technical review teams established directly by BLM to solve

specific, short-term technical issues. The RACs would have 15 members

and would be established on BLM District boundaries, ecoregions, or

resource areas. A 60% vote of the RAC membership (including a majority

of each category of users) would be required to send suggestions to

BLM.

Model B is based heavily on the suggestions made by the Wyoming

Steering Committee. It includes 3 levels of groups--the 15 member RAC,

formed on either a Statewide or ecoregion basis, a more local 10 member

rangeland resource team formed by the RAC, and technical review teams

established directly by BLM to solve specific, short-term technical

issues. In addition to requiring membership to be balanced among the

commodity, environmental and local interest groups specified in

Sec. 1784.6-1(c), the RAC would include individuals representing

wildlife, grazing, minerals and energy, and established environmental

interests. An 80% vote of the RAC membership (including a majority of

each interest group) would be required to send suggestions to BLM.

Model C was developed by BLM in response to additional issues

raised by the commenters. In addition to the requirements specified in

Sec. 1784.6-1, this model accommodates formation of the RACs, and any

type and number of subgroups as needed. The RAC can be formed along

State, BLM district, or ecoregion boundaries. A majority of each of the

three categories of users must vote affirmatively to send suggestions

to BLM. General function subgroups at the local level can be formed on

the initiative of the RAC or by local initiative. Special function

groups formed to solve special technical problems would be constituted

by BLM on its own initiative or in response to requests from RACs or

any of the subgroups under the RACs.

The Department expects that most, if not all, public land managed

by BLM will fall under the purview of one of these councils. Exceptions

will be made where BLM State Director determines that there is

insufficient interest to form a council or that it would be impossible

for such a council to have effective participation due to the location

of the public lands with respect to the population. Implementation of

the principles discussed above will result in [[Page 9897]] enhanced

public involvement in rangeland management, as envisioned throughout

FLPMA.

The Department intends to start using the RACs for advice shortly

after the rule becomes effective on August 21, 1995. This will require

the selection of the advisory council model for each State and the

nomination of advisory council members within the six-month period

before this rule becomes effective. The decision regarding which

advisory council model will be implemented in each State will be based

on recommendations from BLM State Directors following consultation with

the respective Governors and input from the public. Once the preferred

model is identified, the internal process of developing the council

charters can begin. The Department will also seek nominations for

membership on the advisory councils from Governors and through a public

call for nominations, pursuant to 43 CFR 1784.4-1. Finally, charters

for the advisory councils will be drafted and reviewed by the

Department, the Office of Management and Budget, and the General

Services Administration. The timely establishment of the advisory

councils will help ensure that there is adequate time for the councils

to participate in developing State or regional standards and

guidelines.

Range Improvements and Water Rights

The final rule conforms with common law concepts regarding

retention of the title of permanent improvements in the name of the

party that holds title to the land. Accordingly, after August 21, 1995,

the title to all new grazing-related improvements constructed on public

lands, or improvements related to the vegetation resource of public

lands, except temporary or removable improvements, will be in the name

of the party that holds title to the land, i.e. the United States. This

provides consistent direction within BLM and makes BLM practice

consistent with that of the Forest Service. Permanent range

improvements will be approved through a cooperative range improvement

agreement. A permittee's, lessee's, or cooperator's interest for

contributed funds, labor, and materials will be documented. This

documentation is necessary to ensure proper credit for purposes of

reimbursement pursuant to section 402(g) of FLPMA, which requires

compensation for the permittee's or lessee's authorized permanent

improvements whenever a permit or lease is cancelled, in whole or in

part, in order to devote the lands to another public purpose. Title to

improvements existing before the effective date of this rule is not

affected.

The final rule adopts without change the language of the proposed

rule relating to water rights. The final rule provides consistent

direction for BLM regarding water rights on public lands for livestock

watering purposes. It is intended to make BLM's policy consistent with

Forest Service practice, and with BLM policy on asserting water rights

for livestock grazing prior to changes in the early 1980's. This

section provides that the United States will acquire, perfect,

maintain, and administer water rights obtained on public land for

livestock grazing on public land in the name of the United States to

the extent allowed by State law. Some States, such as Wyoming, grant

public land livestock grazing water rights in the name of the landowner

but also, in situations where the grazing lessee or permittee of State

or Federal public land applies for a water right on that land,

automatically include the State or Federal landowner as co-applicant.

After consideration of public comment and further analysis, we have

determined that co-application or joint ownership will be allowed where

state policy permits it; for example, the Wyoming policy is consistent

with the rule. Development of new water sources on public lands

associated with a grazing permit or lease will be subject to

cooperative range improvement agreements as provided in section

Sec. 4120.3-2.

The rule adopted today will be prospective. The final rule does not

create any new Federal reserved water rights, nor will it affect valid

existing water rights. Any right or claim to water on public land for

livestock watering on public land by or on behalf of the United States

will remain subject to the provisions of 43 U.S.C. 666 (the McCarran

Amendment) and section 701 of FLPMA (43 U.S.C. 1701 note; disclaimer on

water rights). Finally, the final rule does not change existing BLM

policy on water rights for uses other than public land grazing, such as

irrigation, municipal, or industrial uses.

Administrative Practices

With this final rule, BLM has made a number of changes to improve

the administration of grazing on lands managed by BLM. These changes

principally affect public participation in range decisions,

administrative appeals and implementation of decisions,

disqualification of applicants for grazing permits and leases based on

a prior record of noncompliance, acts prohibited by the regulations,

and the definition and implementation of conservation use.

Interested public. An important element of rangeland improvement

involves facilitating effective public participation in the management

of public lands. To implement this goal, the term ``affected

interests'' is removed throughout the rule and replaced with the term

``interested public.'' The rule also removes the authorized officer's

discretion to determine whether an individual meets the standards for

``affected interest'' status. The final rule adopts the definition of

``interested public'' as set forth in the proposed rule.

This change provides a consistent standard for participation by the

public in decisions relating to grazing. Any party who writes to the

authorized officer to express concern regarding the management of

livestock grazing on specific grazing allotments will be recognized as

a member of the ``interested public.''

Requirements for consultation with the interested public have been

added in various sections of the rule, including those that deal with

permit issuance, renewal and modification, increasing and decreasing

permitted use, and development of activity plans and range improvement

programs.

Appeals. Comments on the appeals procedures contained in the

proposed rule suggested that the provisions were not clear. A number of

changes have been made in the final rule to clarify the provisions.

Most importantly, the final rule now references existing procedures in

43 CFR part 4, rather than repeating language from that part.

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

authorized officer will normally be provided a 30-day period in which

to file an appeal. Appellants may also petition the Director of the

Office of Hearings and Appeals (OHA), or the Interior Board of Land

Appeals (IBLA) to stay the decision until the appeal is decided. Where

a petition for stay has been filed with an appeal, the Department's OHA

has 45 days from the expiration of the 30-day appeal period either to

grant or deny the petition for stay, in whole or in part. Thus, in

cases where a person has filed a petition for stay of the decision of

the authorized officer along with an appeal, and where the request for

stay is denied, implementation of the decision would be delayed up to

75 days. In the event a stay of the decision is granted in whole or in

part, the decision will be stayed until such time as a determination on

the appeal is made.

This rule clarifies that the authorized officer can issue final

decisions and [[Page 9898]] place them in effect immediately when it is

necessary to protect rangeland resources from damage in situations

described under Sec. 4110.3-3(b). The rule also adds a provision that

decisions to close areas to specified kinds of livestock use when it is

necessary to abate unauthorized use, as provided in Sec. 4150.2(d), may

be issued as final decisions. In these cases, the permittee or lessee

will still have 30 days to appeal the decision and petition for a stay,

and the OHA will have 45 days to evaluate the petition; however, the

decision will be in effect on the date specified in the decision and

will remain in effect unless a stay is granted.

The objective of placing decisions in immediate effect under the

circumstances specified in the rule is to provide for timely action to

benefit rangelands and to reduce administrative delays. The rule does

not take away the ability of affected parties to file an appeal, as

provided by Section 9 of TGA, or to request a stay of the decision

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

making decisions under Secs. 4110.3-3(b) and 4150.2(d) effective

immediately under the standards provided for in this final rule is

critical to meeting the goals of sound rangeland management.

Qualifications. The final rule makes no substantive change from the

proposed rule. It includes a provision to disqualify applicants for new

or additional grazing permits and leases if: (1) The applicant or

affiliate has had any Federal grazing permit or lease, or any State

grazing permit or lease within the grazing allotment for which a

Federal permit or lease is sought, cancelled for violation of the

permit or lease within the 36 calendar months immediately preceding the

date of application; or (2) the applicant or affiliate is barred from

holding a Federal grazing permit or lease by order of a court of

competent jurisdiction.

These requirements do not apply to applicants for renewal of

grazing permits or leases. The final rule gives the authorized officer

the authority to consider whether an applicant for renewal is in

substantial compliance with the terms and conditions of the permit or

lease for which renewal is sought.

Prohibited acts. The final rule adopts provisions of the proposed

rule, except that provisions from Sec. 4170.1-3, as proposed, have been

moved to a new paragraph in Sec. 4140.1. Minor clarifying changes are

also made. As in the proposed rule, Subpart 4140, ``Prohibited Acts,''

is revised to modify the list of actions that are defined as prohibited

acts. Penalties applicable to prohibited acts are set forth in

Sec. 4170.

The proposed rule amended the list of prohibited acts to include

violations of Federal and State laws and regulations concerning water

pollution, certain predator control activities; application or storage

of pesticides, herbicides or other hazardous materials; alteration or

destruction of natural stream courses; wildlife destruction; and

removal or destruction of archeological resources. It also added

violations of State laws regarding the stray of livestock to the list.

The final rule adopts these provisions. It does not attempt to list

in the text of the regulations all of the specific Federal and State

laws which, if violated, could constitute prohibited acts. A list of

such laws was included in the preamble to the proposed rule at 59 FR

14323-4. It is not the intent of this rule for the authorized officer

to take direct enforcement action under the provisions of these laws;

or to take enforcement steps involving the grazing permit or lease for

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

violations of laws that, while they do deal with violations of State

and Federal laws dealing with water pollution and other matters, do not

reflect meaningfully upon the ability of the permittee or lessee to be

a good steward of the public lands. The final rule clarifies that

violations of these State and Federal laws would constitute prohibited

acts only where three conditions are met: (1) The violations involve or

affect BLM lands; (2) the violation is related to grazing use

authorized by a permit or lease, and (3) the permittee or lessee has

been convicted or otherwise found to be in violation of the State or

Federal laws by final court or agency action. The final rule also moves

similar provisions regarding the Bald Eagle Protection Act, the

Endangered Species Act (ESA), and the Wild Free-roaming Horse and Burro

Act from Sec. 4170 to Sec. 4140 to increase clarity and readability.

Conservation use. The final rule adopts the proposed definition

with one clarifying change. Conservation use benefits the range by

facilitating improvement in forage conditions, watersheds, riparian

areas, and so on. It provides flexibility that is needed to enable

permittees or lessees to undertake activities on a portion or all of an

allotment to promote resource protection or enhancement, which includes

making progress toward resource condition objectives.

The Department believes that this provision will provide permittees

and lessees with an additional tool to manage grazing operations

properly, provided that the conservation use is consistent with land

use plans. Allotments in conservation use will not be subject to

grazing fees since no forage will be consumed by livestock. However,

permittees and lessees requesting conservation use will be required to

maintain existing improvements so that when the allotment is returned

to actual use such improvements will be in good working order. A

service charge can be charged for conservation use, as it is for actual

use. Conservation use will be initiated by request of the permittee or

lessee. The BLM will not impose conservation use on an unwilling

permittee or lessee.

The advantage of conservation use to the operator is that it allows

increased flexibility. The operator will be able to enjoy the benefits

of a long-term rest of the allotment from grazing while preserving the

ability to resume grazing in the future. During the conservation use,

BLM will not consider allowing another operator to use any resulting

forage.

Resource Management Requirements, Including Standards and

Guidelines. The final rule adopts the substance of the provisions

proposed in subpart 4180. The Department has reorganized and rewritten

the subpart to improve clarity and incorporate more fully a watershed

management approach.

The Fundamentals of Rangeland Health. The final rule establishes

the fundamentals of rangeland health for grazing administration

(formerly referred to as the national requirements). These fundamentals

address the necessary physical components of functional watersheds,

ecological processes required for healthy biotic communities, water

quality standards and objectives, and habitat for threatened or

endangered species or other species of special interest. The Department

believes that these provisions are critical to ensuring that BLM's

administration of grazing helps preserve currently healthy rangelands

and restore healthy conditions to those areas that currently are not

functioning properly, especially riparian areas.

Where it is determined that existing grazing management needs to be

modified to ensure that the conditions of healthy rangelands set forth

in Sec. 4180.1. Fundamentals of rangeland health, are met or

significant progress is being made to meet these conditions, the

authorized officer must take appropriate action as soon as practical,

but not later than the start of the next grazing season. This may

include actions such as reducing livestock [[Page 9899]] stocking

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

or relocating range improvements.

State or Regional Standards and Guidelines. Standards and

guidelines are to be developed for an entire State or for an area

encompassing portions of more than one State, except where the

geophysical or vegetal character of an area is unique and the health of

the rangelands will not be ensured by using standards and guidelines

developed for a larger geographical area. The geographical area covered

will be determined by BLM State Directors in consultation with affected

RACs.

State or regional standards and guidelines will be developed, under

the umbrella of the fundamentals and consistent with the guiding

principles of this final rule, to provide specific measures of

rangeland health and to identify acceptable or best management

practices in keeping with the characteristics of a State or region such

as climate and landform. The preparation of standards and guidelines

will involve public participation and consultation with RACs, Indian

tribes, and Federal agencies responsible for the management of lands

within the affected area.

The guiding principles for the development of standards presented

in this final rule pertain to the factors needed to help achieve

rangeland health. More specifically, the factors relate to watershed

function, threatened or endangered species and candidate species,

habitat for native plant and animal populations, water quality and the

distribution of nutrients and energy flow. The guiding principles for

guidelines direct the identification of acceptable or best grazing

management practices that will result in or ensure significant progress

towards fulfillment of the standards.

State or regional standards and guidelines will provide the

resource measures and guidance needed to develop terms and conditions

of permits, leases, and other authorizations, AMPs and other activity

plans, cooperative range improvement agreements and to issue range

improvement permits in a manner that will result in maintaining or

making significant progress toward healthy, functional rangelands.

Once standards and guidelines are in effect, the authorized officer

is required to take appropriate action under 43 CFR part 4100 as soon

as practical, but not later than the start of the next grazing year,

upon determining that existing grazing management practices are

significant factors in failing to meet the standards and conform with

the guidelines. Appropriate actions may include reducing livestock

stocking rates, adjusting the season or duration of livestock use, or

modifying or relocating range improvements.

Fallback Standards and Guidelines. The Department recognizes the

importance of putting standards and guidelines in place in a timely

manner, and has provided a mechanism for doing so in this rule. This

final rule includes a provision for fallback standards and guidelines

that would become effective 18 months after this rule becomes effective

in the event that State or regional standards and guidelines have not

been developed and put into effect. They will remain in effect until

State or regional standards and guidelines are in effect.

The fallback standards and guidelines address largely the same

factors that are provided in the guiding principles for the development

of the State or regional standards and guidelines. The fallback

standards include more detail regarding the conditions that would exist

under each of the factors when rangelands are in a healthy, functional

condition than do the guiding principles for State or regional

standards discussed above. Similarly, the fallback guidelines include

grazing management practices while the guiding principles for State or

regional guidelines refer more generally to the types of concerns to be

addressed. The BLM State Directors can adjust the fallback standards

and guidelines, subject to approval of the Secretary, to fit State or

local conditions.

Fallback standards and guidelines will be applied in the same

manner as standards and guidelines developed for a particular State or

region, which are discussed above.

NEPA and Implementation of Standards and Guidelines. The

fundamentals of rangeland health proposed in this rule, and all

standards and guidelines whether fallback, State, or regional, will be

implemented subject to the National Environmental Policy Act of 1969

(NEPA) and applicable land use planning regulations. The fundamentals

of rangeland health, the guiding principles for the development of

State and regional standards and guidelines and the fallback standards

and guidelines were analyzed in the FEIS for this final rulemaking. Any

additional NEPA analysis required during development of State or

regional standards and guidelines could tier to the analysis of the

fundamentals of rangeland health and standards and guidelines presented

in the FEIS.

BLM planning regulations direct that actions be in conformance with

BLM land use plans. In some instances, the standards and guidelines may

be consistent with existing land use plans and implementation may

proceed without further action. In many cases, however, land use plans

will require modification to ensure conformance with the land use plan

and the standards and guidelines. The Department intends to develop

State or regional standards and guidelines, complete plan conformance

tests, and undertake necessary plan amendments within 18 months of the

effective date of this rule. State or regional standards and guidelines

will be implemented as they are finalized and approved by the

Secretary.

The Federal Grazing Fee and Subleasing

Grazing fees. The fee portion of the proposed rule generated

numerous public comments with diverse and conflicting views about the

impact of an increased fee and the calculation of the fee formula. The

Department has decided not to promulgate the fee increase provision of

the proposed rule in order to give the Congress the opportunity to hold

additional hearings on this subject and to enact legislation addressing

appropriate fees for grazing on public lands. Other changes not

pertaining to fees proposed in section 4130.7-1, redesignated as

Sec. 4130.8-1 in the final rule, remain a part of this rulemaking

package.

As proposed, this section would have been amended by revising the

grazing fee formula, with a provision for phasing in the grazing fee

increase over the years 1995 through 1997. The proposed rule provided

for a 30% incentive fee reduction. The incentive was to have been

implemented after BLM developed separate rules describing the

eligibility criteria for this incentive based fee. The proposed rule

also provided that the full fee increase would not go into effect in

the event that a separate final rule prescribing qualification criteria

for the incentive-based fee was not completed. Multiple-year billing

would have been allowed in certain circumstances. In addition, the

proposed rule provided for a 25 percent cap on changes in the

calculated fee from year to year. These proposals are not adopted in

the final rule.

As adopted by today's action, Section 4130.8-1 clarifies the

definition of billing unit, provides for assessing a surcharge in

certain instances for the public landlord's share of authorized

pasturing agreements associated with public land grazing, and clarifies

that grazing use occurring before a bill is paid is an unauthorized use

that may be dealt with under the settlement and penalties sections of

this rule and may [[Page 9900]] result in the limitation of flexibility

otherwise provided under an allotment management plan.

Subleasing. The Department's proposed rule would have imposed a

surcharge on authorized leasing or subleasing in two situations: (1)

the subleasing of public land grazing privileges associated with the

leasing of privately-owned base property; (2) the pasturing of

livestock owned by someone other than the grazing permittee or lessee

where the permittee or lessee controls such livestock. This proposal

was made in response to findings of the General Accounting Office (GAO)

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

(OIG) (see report #92-1-1364) that permittees and lessees who sublease

are unduly benefitting from their permits or leases. Sons and daughters

of grazing permittees and lessees were exempted from the surcharge.

In response to comments that putting a surcharge on authorized

subleasing would adversely affect the ability of new ranchers with

limited capital to enter the livestock business, the Department has not

included the surcharge associated with the authorized leasing or

subleasing of public land grazing privileges associated with base

property in the final rule. However, in order to address the

Secretary's intent to establish a fair and reasonable return to the

public, the surcharge on pasturing agreements is adopted in the final

rule. The Department recognizes the need to avoid penalizing children

of grazing permittees and lessees who graze cattle under their parents'

permits or leases and has included an exemption from the surcharge for

pasturing for sons and daughters of public land permittees and lessees.

The Department believes that, as landlord of the public lands, it must

obtain a fair share, on behalf of the American public, of any income

received by the permittee for pasturing cattle belonging to others.

Additionally, the policy of charging a surcharge for pasturing is

consistent with standard practices on most State grazing lands.

Commenters also stated that the proposed method for calculating the

surcharge did not reflect local conditions. The Department has

addressed this concern by modifying the method for calculating the

surcharge on pasturing agreements. The final rule provides that the

surcharge on pasturing agreements will be equal to 35 percent of the

difference between the Federal grazing fee per AUM and the prior year's

private lease rate for the appropriate State for forage used by

livestock owned by another party other than the permittee or lessee. A

surcharge of 35 percent of the difference between the Federal grazing

fee and the private lease rate for the appropriate State will recover

an appropriate ``landlord's share'' and will result, on the average

across all States, in a surcharge approximating the surcharge presented

in the proposed rule and analyzed in the EIS for this rule. Pasturing

agreements must have authorization from the authorized officer. Under

this final rule, to calculate the surcharge BLM will use the per animal

unit month (AUM) private grazing land lease rate for the appropriate

State as reported annually by the National Agricultural Statistics

Service (NASS).

III. Summary of Rules Adopted

These final rules revise Parts 4, 1780, and 4100 of Title 43. The

following summary highlights changes from the current regulations, most

of which were also included in the proposed rule. The following

provisions are included:

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

Section 4.477, Effect of decision suspended during appeal, is

revised to reflect that grazing decisions will no longer be suspended

automatically when an appeal is filed. Instead, final grazing decisions

will be subject to the provisions of 43 CFR 4.21, which governs the

effect of administrative decisions pending appeal before the

Department's OHA.

Part 1780--Cooperative Relations

Section 1784.0-5 is amended by replacing the term ``Authorized

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

changes provide consistency with the terminology of FACA.

Section 1784.2-1, Composition, is amended to remove the eligibility

requirement for grazing advisory board members. The final rule also

adds a requirement that advisory committee members have demonstrated a

commitment to collaborate in seeking solutions to resource management

issues.

Section 1784.2-2, Avoidance of conflict of interest, is amended to

provide that no advisory committee member, including members of RACs,

can participate in any matter in which such member is directly

interested, and must disclose his or her direct or indirect interest in

Federal permits, leases, licenses, or contracts administered by BLM.

Section 1784.3, Member service, establishes that appointments to

advisory committees will be for two-year terms unless otherwise

specified in the committee charter or appointing document. Specific

references to grazing advisory board, district advisory council and

National Public Lands Advisory Council appointments and terms and

election procedures have been removed. The rule also provides that

travel and per diem will be paid to committee members but not to

members of any subgroups formed under the committees.

Sections 1784.5-1, Functions and 1784.5-2, Meetings, are amended by

replacing the term ``authorized representative'' with the term

``designated Federal officer.'' These changes provide consistency with

the terminology of FACA.

Section 1784.6-1, Resource Advisory Councils--Requirements,

establishes requirements for RACs. It provides that, with certain

exceptions, councils will be established to cover all BLM lands. RACs

will provide advice to the BLM official to whom they report regarding

the preparation, amendment and implementation of land use plans and the

development of standards and guidelines. The councils will also assist

in establishing other long-range plans and resource management

priorities, including plans for expending range improvement funds. RACs

will not provide advice on personnel management, nor on the allocation

and expenditure of funds subsequent to budget planning.

Appointments to RACs will be made by the Secretary. In making

appointments, the Secretary will consider nominations from the Governor

of the affected State and nominations received in response to a public

call for nominations. All nominations will be required to be

accompanied by letters of recommendation from interests or

organizations to be represented, and members must be residents of a

State in which the area covered by the council is located.

Council members will be selected in a balanced manner from persons

representing interest groups. There are 3 general groups: Commodity

Industries--including ranching and developed recreational activities;

Recreational/Environmental--nationally or regionally recognized

environmental or resource conservation groups, wild horse and burro

interest groups, archeological and historical interests, dispersed

recreational activity interests--such as bicyclists and hikers; and

Local Area Interest--persons who hold State, [[Page 9901]] county, or

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

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

science academia, and State agencies responsible for the management of

natural resources, water quality, water rights, and State lands. At

least one of the members appointed to each council must hold elected

State, county, or local office. An individual may not serve on more

than one RAC at any given time. Council members must have demonstrated

experience or knowledge of the geographic area for which the council

provides advice and a commitment to collaborative decisionmaking.

All members of RACs must attend a course of instruction in the

management of rangelands that has been approved by BLM State Director.

Each RAC will have requirements for quorums and for making

recommendations to the Department. Councils can request that the

Secretary respond directly where the council believes its advice has

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

Secretary will respond directly to a council's concerns within 60 days.

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

The Secretary's response will not constitute a decision on the merits

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

appeal and will not preclude an affected party's ability to appeal a

decision of the authorized officer.

Administrative support for a council will be provided by the office

of the designated Federal officer.

Section 1784.6-2, RACs--Optional features, establishes optional

features for RACs. Three different models are provided, and BLM State

Director, in consultation with the Governor and other interested

parties, will determine which model will best suit the needs of the

State. General characteristics of the three models are presented above,

in the section on ``Public Participation in Rangeland Management''

under the discussion of ``Major Elements of the Department's Program to

Promote Healthy Rangelands.'' The first model is based largely on the

model developed by the Colorado Working Group. The second model is

based largely on the model developed by the Wyoming Steering Committee.

The third model was developed by BLM after consideration of public

comment.

Previous sections 1784.6-1, National Public Lands Advisory Council,

1784.6-4, District advisory councils, and 1784.6-5, Grazing advisory

boards, are removed.

Part 4100--Grazing Administration--Exclusive of Alaska

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

Section 4100.0-2, Objectives, is amended by revising the statement

of objectives to include promoting healthy, sustainable public

rangelands; accelerating restoration and improvement of public

rangelands to properly functioning conditions; promoting the orderly

use, improvement and development of the public lands; establishing

efficient and effective administration of grazing of public rangelands;

and providing for a sustainable western livestock industry and

communities that are dependent upon productive, healthy public

rangelands.

Section 4100.0-5, Definitions, is amended by removing the

definition of ``Affected interests,'' ``Grazing preference,'' and

``Subleasing''; revising the definitions of ``Active use,'' ``Actual

use,'' ``Allotment management plan (AMP),'' ``Consultation, cooperation

and coordination,'' ``Grazing lease,'' ``Grazing permit,'' ``Land use

plan,'' ``Range improvement,'' ``Suspension,'' and ``Utilization''; and

by adding in alphabetical order the definitions of ``Activity plan,''

``Affiliate,'' ``Annual rangelands,'' ``Conservation use,'' ``Ephemeral

rangelands,'' ``Grazing preference or preference,'' ``Interested

public,'' ``Permitted use,'' ``Temporary nonuse,'' and ``Unauthorized

leasing and subleasing.''

Section 4100.0-7, Cross-references, is amended to guide the public

to the applicable sections of 43 CFR part 4 when considering an appeal

of a decision relating to grazing administration, to 43 CFR part 1600

regarding the development of land use plans, and to 43 CFR part 1780

regarding advisory committees.

Section 4100.0-9, Information collection, is added to conform to

the requirements of the Paperwork Reduction Act (44 U.S.C. 3501 et

seq.). The section discloses to the public the estimated burden hours

needed to comply with the information collection requirements in this

rule, why the information is being collected, and what the information

will be used for by BLM.

Subpart 4110--Qualifications and Preference

Section 4110.1, Mandatory qualifications, is amended to require

that applicants for renewal or issuance of new grazing permits or

leases, and any affiliates of such applicants, must be determined by

the authorized officer to have a satisfactory record of performance.

Applicants and any affiliates for renewal must be determined to be in

substantial compliance with the terms and conditions of the permit or

lease for which renewal is sought, and with applicable regulations.

Applicants and any affiliates who have had a Federal grazing permit or

lease, or a State grazing permit or lease for lands within the Federal

grazing allotment for which application is made, cancelled within 36

months preceding application shall be deemed not to have a satisfactory

record of performance. Applicants and their affiliates that are barred

from holding a Federal grazing permit or lease by court order are also

disqualified from receiving a new permit or lease. The amendments to

this section also clarify that mortgage insurers, natural resource

conservation organizations, and private parties whose primary source of

income is not the livestock business, but who meet the criteria of this

section, are qualified for a grazing permit or lease.

Section 4110.1-1, Acquired lands, is amended to clarify that

existing grazing permits and leases on lands acquired by BLM are

subject to the permit or lease terms and conditions that were in effect

at the time of acquisition. Following expiration of the pre-existing

permit or lease, applicants for grazing permits or leases will be

subject to the provisions of Sec. 4110.1 of this final rule.

Section 4110.2-1, Base property, is amended to clarify that base

property must be capable of serving as a base for livestock operations

but it need not actually be in use for livestock production at the time

the authorized officer finds it to be base property. Further, the final

rule makes clear that where authorized water developments on public

lands that have been previously recognized as base property require

reconstruction or replacement in order to continue to service the same

area, and the reconstructed or new development has been authorized

through a cooperative range improvement agreement, the permittee's or

lessee's interest in the new or reconstructed water development will

continue to be recognized as base property.

Section 4110.2-2, Specifying permitted use, is retitled to reflect

the redefinition of the term ``grazing preference,'' and amended to

replace the term ``grazing preference'' with ``permitted use.'' Also,

the section is amended to clarify that levels of grazing use on

ephemeral or annual ranges are established on the basis of the amount

[[Page 9902]] of forage that is temporarily available pursuant to

vegetation standards prescribed by land use plans or activity plans.

Section 4110.2-3, Transfer of grazing preference, is amended to

reflect the new requirements of Sec. 4110.1-1 pertaining to the

applicant's history of performance and by adding a new paragraph (f) to

require that new permits or leases stemming from transfer of the base

property be for a minimum of three years, unless a shorter term is

approved by the authorized officer.

Section 4110.2-4, Allotments, is amended to clarify that

designation and adjustment of allotment boundaries includes the

authority for, and the practice of, combining or dividing allotments

when determined by the authorized officer to be necessary to achieve

resource condition objectives or to enhance administrative efficiency.

The section clarifies that modification of allotments must be done

through agreement or decision of the authorized officer, following

consultation, cooperation and coordination with involved persons,

including the interested public.

Section 4110.3, Changes in permitted use, is amended by replacing

the term ``grazing preference'' with ``permitted use,'' and by

clarifying that changes in permitted use will be supported by

monitoring data, field observations, land use planning decisions, or

data collected through other studies.

Section 4110.3-1, Increasing permitted use, is amended by including

the requirement that a permittee, lessee, or other applicant must be

determined to be qualified under subpart 4110, by substituting the term

``permitted use'' in place of ``grazing preference,'' and by clarifying

the requirements for consultation. Also, reference to a permittee's or

lessee's demonstrated stewardship is added to factors to be considered

in allocating available forage.

Section 4110.3-2, Decreasing permitted use, is amended by revising

the heading, revising paragraph (b) to expand the list of methods for

determining when a reduction in grazing use is necessary, and by

deleting paragraph (c), which contained provisions for suspended use.

The amendment adds ecological site inventory and other recognized

methods for determining forage production as methods of identifying

when use exceeds the livestock carrying capacity of the area

considered. Monitoring remains as a means of determining forage

production. The amendment also adds a reference to the fundamentals of

rangeland health and standards and guidelines.

Section 4110.3-3, Implementing reductions in permitted use, is

retitled and previous paragraph (a) and other requirements for phased-

in reductions in permitted use are removed. Previous paragraph (b) is

amended to remove the term ``suspension of preference'' and add in its

place the term ``reductions in permitted use.'' The phrase ``when

continued grazing use poses a significant risk of resource damage from

these factors'' is amended to read ``when continued grazing use poses

an imminent likelihood of significant resource damage.'' This clarifies

that modifications in grazing use and notices of closure can be

implemented where continued grazing use poses an imminent likelihood of

significant resource damage. Additionally, paragraph (b) provides, by

reference to Sec. 4110.3-2, for the application of the fundamentals of

rangeland health and standards and guidelines and the use of other

methods, in addition to monitoring, for determining the need for an

initial reduction, and clarifies the action of the field manager,

requirements for consultation, cooperation and coordination with

involved persons, including the interested public. Previous paragraph

(c) is redesignated as paragraph (b) and amended to remove the word

``temporary'' to recognize that the influences of natural events such

as drought can significantly affect vegetation health and productivity

for several months or years after a drought has passed. Redesignated

paragraph (b) retains the special provisions for making decisions

effective upon issuance or on the date specified in the decision when

action is needed to protect rangeland resources.

Paragraph (a) of Sec. 4110.4-2, Decreases in land acreage, is

amended by removing reference to suspended use. Reductions in

authorized use under preference permits or leases will no longer be

recognized as suspended use.

Subpart 4120--Grazing Management

Section 4120.2, Allotment management plans and resource activity

plans, is amended by revising the heading and by adding a reference to

other activity plans that may prescribe grazing management. The final

rule clarifies that draft AMPs or other draft activity plans may be

prepared by other agencies or permittees or lessees, but that such

plans do not become effective until approved by the authorized officer.

AMPs must include standards and guidelines. Paragraph (a) is also

amended by replacing the reference to district grazing advisory boards

with RACs and including State resource management agencies in the

activity planning process.

The final rule also provides that permits and leases must include

in their terms and conditions a requirement for conformance with AMPs

or other applicable activity plans. Further, it provides that

flexibility granted to permittees or lessees under a plan will be

determined on the basis of demonstrated stewardship. The rule clarifies

the existing provision that the inclusion of lands other than public

lands in an AMP or other activity plan is discretionary. Finally, this

section references the NEPA analysis and related public participation

that is required for the planning and revision of allotment or activity

plans, and provides that the decision document that follows the

environmental analysis serves as the proposed decision for purposes of

subpart 4160.

Section 4120.3-1, Conditions for range improvements, is amended by

specifying in paragraphs (b) and (e) that ``cooperative agreements''

refers to cooperative range improvement agreements, and by inserting a

new paragraph (f) addressing reviews of decisions associated with range

improvement projects. The amendment clarifies the process for

administering protests and appeals of decisions and provides that

appeals are subject to the administrative remedies process set forth in

43 CFR part 4160.

The heading of Sec. 4120.3-2, Cooperative range improvement

agreements, is revised to clarify that this section deals with

cooperative range improvement agreements as opposed to ``cooperative

agreements'' with other Federal or State agencies. The section is

amended to clarify that title will be in the United States for all new

permanent grazing-related improvements constructed on public lands.

Title to temporary grazing-related improvements used primarily for

livestock handling or water hauling can still be held by the permittee

or lessee. The amendment will not affect ownership or rights currently

held in a range improvement.

The provisions pertaining to title do not affect the existing

practice of retaining a record of permittee or lessee contributions to

specific authorized range improvement projects. This record will be

used in determining compensation due the permittee or lessee in the

event a permit or lease is cancelled in order to devote the public

lands to another public purpose, including disposal of the lands. This

record may also be considered during [[Page 9903]] the transfer of

grazing preference to ensure that all interests in range improvements

have been assigned to the transferee.

The amendment does not change agreements currently in effect. The

amendment also clarifies that permanent water improvement projects will

be authorized through cooperative range improvement agreements.

Section 4120.3-3, Range improvement permits, is amended to make it

clear that a permittee or lessee may hold title to removable livestock

handling facilities and to temporary improvements such as troughs for

hauled water or loading chutes. The amendment will not affect ownership

or rights currently held in a range improvement.

The final rule provides that BLM may mediate disputes when

necessary about reasonable compensation for the operation and

maintenance of facilities when another operator is authorized temporary

use of forage that the preference permit holder cannot use. Finally,

the rule removes as unnecessary the provision that permittees or

lessees can control their livestock's use of ponds or wells.

A new section Sec. 4120.3-8, Range improvement fund, is added to

address the distribution and use of the ``range betterment'' funds

appropriated by Congress through section 401(b) of FLPMA for range

improvement expenditures by the Secretary. The range betterment fund

has been called the range improvement appropriation by Congress, and is

known by that title in BLM. The final rule provides for distribution of

the funds by the Secretary, with one-half of the range improvement fund

to be made available to the State and District from which the funds

were derived. The remaining one-half is to be allocated by the

Secretary on a priority basis. All range improvement funds will be used

for on-the-ground rehabilitation, protection and improvements of public

rangelands.

The final rule further clarifies that range improvement includes

activities such as planning, design, layout, modification, as well as

maintaining, monitoring and evaluating the effectiveness of specific

on-the-ground range improvements in achieving resource condition and

management objectives.

The final rule also requires consultation with affected permittees,

lessees, and the interested public during the planning of range

development and improvement programs. RACs will also be consulted

during the planning of range development and improvement programs,

including the development of budgets for range improvement and the

establishment of range improvement priorities.

Section 4120.3-9, Water rights for the purpose of livestock grazing

on public lands, is added to provide consistent direction for BLM

regarding water rights on public lands for livestock watering purposes.

This section provides that the United States will acquire, perfect,

maintain, and administer any rights to water obtained on public land

for livestock watering on public land in the name of the United States

to the extent allowed by State law.

The rule adopted today will be prospective. The final rule does not

create any new Federal reserved water rights, nor will it affect valid

existing water rights. The provisions of this final rule are not

intended to apply to the perfection of water rights on non-Federal

lands. Any right or claim to water on public land for livestock

watering on public land by or on behalf of the United States will

remain subject to the provisions of 43 U.S.C. 666 (the McCarran

Amendment) and section 701 of FLPMA (43 U.S.C. 1701 note; disclaimer on

water rights). Finally, the final rule does not change existing BLM

policy on water rights for uses other than public land grazing, such as

irrigation, municipal, or industrial uses.

Section 4120.5 is added to recognize and encourage cooperation

with, among others, State, county, Indian tribal, and local government

entities and Federal agencies.

Section 4120.5-1, Cooperation with State, county, and Federal

agencies, is amended to recognize existing cooperation with State

cattle and sheep boards, county and local noxious weed control

districts, and State agencies involved in environmental, conservation,

and enforcement roles related to these cooperative relationships.

Subpart 4130--Authorizing Grazing Use

This section is reordered to follow a more logical sequence. This

discussion will use the new numbers and cross reference the old

numbers. A table showing old and new numbers is included in the

section-by-section discussion of this subpart.

Section 4130.1, Applications, is added. This action merely adds a

title for purposes of the reorganization of the subpart.

Section 4130.1-1, Filing applications, is renamed from the proposed

``Applications'' and amended slightly to accommodate the new category

of use, conservation use, which is adopted in this final rule.

Section 4130.1-2, Conflicting applications, is amended to add

criteria to be considered in granting a use authorization or permit or

lease. The rule incorporates the history of applicants' and affiliates'

compliance with the terms and conditions of Federal and State grazing

permits and leases and demonstrated stewardship of the public lands as

criteria for granting permits or leases where there is more than one

qualified applicant.

Section 4130.2, Grazing permits or leases, is amended so that

permits and leases will continue to be offered for 10-year terms except

in specified circumstances. The final rule also clarifies that all

grazing permits and leases issued, including the transfer or renewal of

permits and leases, will include terms and conditions addressing the

fundamentals of rangeland health and standards and guidelines proposed

under subpart 4180, as well as terms and conditions establishing

allowable levels, seasons and duration of use, and other factors that

will assist in achieving management objectives, provide for proper

range management, or assist in the orderly administration of the public

rangelands. The final rule also provides that the authorized officer

must consult with interested parties prior to the issuance or renewal

of grazing permits and leases and prohibits the offering or granting of

permits and leases to applicants who refuse to accept the terms and

conditions of the offered permit or lease.

The final rule clarifies the process of application for and

granting of conservation use and temporary nonuse. Conservation use is

established as one of the allowable uses for which a permit or lease

may be granted when it is in conformance with the applicable land use

and activity plans and the appropriate standards and guidelines.

Forage made available as a result of temporary nonuse may be

authorized for temporary use by another operator. Forage used for

conservation purposes would not be available to other livestock

operators. The procedures guiding approval of nonuse have been

developed in response to a recommendation from the March 19, 1986,

OIG's review of the grazing management program.

Section 4130.3, Terms and conditions, is amended through a minor

addition to reflect the requirement to conform with the fundamentals of

rangeland health and standards and guidelines of subpart 4180.

Section 4130.3-1, Mandatory terms and conditions, is amended

through minor additions and deletions which [[Page 9904]] clarify that

use must not exceed the livestock carrying capacity of the allotment,

and by removing unnecessary references to previous sections. The

section is further amended to add a paragraph (c) that requires that

the fundamentals of rangeland health and the appropriate standards and

guidelines be reflected in the terms and conditions of permits, leases

and other authorizations.

Section 4130.3-2, Other terms and conditions, is amended to provide

for proper rangeland management and to remove unnecessary language. The

final rule allows terms and conditions to provide for improvement of

riparian area functions and protection of rangeland resources and

values consistent with applicable land use plans. Paragraph (h)

affirmatively states that BLM will have reasonable administrative

access across the permittee's or lessee's owned or leased private lands

for the management and protection of public land.

Section 4130.3-3, Modification, is amended to clarify consultation

requirements in the modification of terms and conditions of permits and

leases. The rule provides for greater State and public participation

when changes are proposed that are not within the scope of the existing

permit or lease. The rule also provides for increased State and public

participation during the evaluation of monitoring results or other data

that provide a basis for decisions regarding grazing use or management.

Section 4130.4, Authorizations within terms and conditions of

permits and leases, is amended to allow field managers to make

temporary changes in authorized use that are within the scope of

existing permits and leases.

Section 4130.5, Free-use grazing permits, is modified to reflect

new circumstances under which the authorized officer may grant free-use

permits. This new provision was contained in Sec. 4130.7-1 of the

proposed rule.

The final rule provides that free use can be permitted where the

primary objective of authorized grazing use or conservation use is the

management of vegetation to meet resource objectives other than the

production of livestock forage, to conduct scientific research or

administrative studies, or to control noxious weeds.

Section 4130.6-1, Exchange of use grazing agreements, is amended to

specify that exchange of use grazing agreements must be consistent with

management objectives and compatible with existing livestock

operations. The agreements will be required to address the fair sharing

of maintenance and operation of range improvements and will be approved

for the same term as any leased lands that are offered.

Section 4130.6-2, Nonrenewable grazing permits and leases, is

modified to require the authorized officer to consult with the affected

permittee or lessee, the State, and the interested public before

issuing a nonrenewable permit.

Section 4130.6-3, Crossing permits, is modified to specify that

crossing permits are a form of temporary use authorization.

Section 4130.7. Ownership and identification of livestock, is

amended to make it clear that, before grazing livestock owned by

persons other than the permittee or lessee, the permittee or lessee

must have an approved use authorization and must have submitted a copy

of the documented agreement or contract that includes information

required for BLM's administration of permits and leases and management

of rangeland resources.

Sons and daughters of permittees or lessees are exempted from the

provisions of this section in specified circumstances. This is

necessary to allow sons and daughters, who are grazing livestock on

public lands under their parents' permit or lease in specified

circumstances, to avoid the pasturing surcharge provided in

Sec. 4130.8.

Section 4130.8-1, Payment of fees, is amended to make clear the

definition of a billing unit, to provide for the assessment of a

surcharge for authorized pasturing of another owner's livestock and to

clarify that grazing use that occurs before a bill is paid is an

unauthorized use, may be dealt with under the settlement and penalties

sections of these regulations. Also, the section is amended to clarify

that delays in payment of actual use billings and noncompliance with

the terms and conditions of permits or leases may result in the loss of

after-the-grazing-season billing privileges authorized under an AMP.

For administrative convenience, the assessment of pasturing surcharges

will not begin until the start of the next grazing year, March 1, 1996.

The final rule recognizes two types of authorized subleasing. The

first is the sublease of public land grazing privileges along with the

base property associated with the permit or lease. Such a sublease of

the public land grazing privileges must be accompanied by a lease or

sublease of the associated base property and the BLM authorized officer

must approve the transfer of the grazing permit or lease. Such

transfers shall be for a minimum of three years unless it is determined

by the authorized officer that a shorter period is consistent with

management and resource condition objectives. The second is a pasturing

agreement under which livestock not owned by the permittee or lessee,

but under the control of the permittee or lessee, is allowed to graze

on the public lands that are subject to a permit or lease. The BLM

authorized officer must approve such pasturing agreements. Other types

of subleasing arrangements will be considered unauthorized. A surcharge

for the lease or sublease of public land grazing privileges associated

with base property is not adopted in the final rule.

The final rule provides for the collection of a surcharge for

authorized pasturing activities associated with a Federal permit or

lease. The final rule provides for a surcharge of 35 percent of the

difference between the grazing fee per AUM rate and the prior year's

private lease rate for the appropriate State as determined by the NASS

for forage used by livestock owned by another party other than the

permittee or lessee.

The final rule excludes from the pasturing surcharge sons and

daughters of permittees or lessees grazing livestock on public lands as

part of an educational or youth program pertaining to livestock

rangeland management, or when establishing a livestock herd in

anticipation of assuming part or all of the family ranch operation.

Section 4130.8-3, Service charge, is amended to include temporary

nonuse and conservation use in the list of items for which BLM may

assess a service charge. The service fee will offset the costs of

processing such applications.

Subpart 4140--Prohibited Acts

Section 4140.1, Prohibited acts on public lands, is amended to

clarify that failure to make substantial use as authorized is a

prohibited act, but that approved temporary nonuse, conservation use,

and use temporarily suspended are not prohibited acts.

This section also clarifies that it is prohibited to use public

lands for grazing without a permit or lease and an annual grazing

authorization. Furthermore, mere receipt of a grazing fee bill does not

authorize grazing use of the range; the bill must actually be paid.

(However, Sec. 4140.1(c) specifically provides for civil penalties only

where violations, including unauthorized use resulting from payment by

a check that is not honored, are repeated and willful.) The final rule

also makes it clear that the permittee is responsible for controlling

livestock so cattle do not [[Page 9905]] stray onto ``closed to range''

areas where grazing is prohibited by local laws, such as formally

designated agriculture districts or municipalities. The final rule

specifies that permittees or lessees are subject to penalties if they

violate Federal or State laws pertaining to protection of bald eagles,

endangered or threatened species, and wild horses and burros; the

placement of poisonous bait or hazardous devices designed for the

destruction of wildlife; application or storage of pesticides,

herbicides or other hazardous materials; alteration of stream courses

without authorization; pollution of water sources; illegal take;

destruction or harassment of fish and wildlife; and illegal removal or

destruction of archeological or cultural resources when public lands

are involved or affected.

Other changes in the section clarify that it is unlawful to harm

livestock authorized to graze on public land, and to interfere with

other lawful uses of the land. These provisions include a prohibition

on obstructing free transit across public land.

Finally, provisions which specify that violations subject to

penalty under Sec. 4170.1-1 are limited to those where public land

administered by the Bureau of Land Management is involved or affected,

the violation is related to grazing use authorized by permit or lease,

and the permittee or lessee has been convicted or otherwise found to be

in violation of any of these laws or regulations by a court or by final

determination of an agency charged with the administration of these

laws or regulations, and no further appeals are outstanding, are moved

from proposed Sec. 4170-1-3 and incorporated into this final section.

Subpart 4150--Unauthorized Grazing Use

Section 4150.1, Violations, is reorganized for clarity and amended

to add the requirement that the authorized officer must determine

whether a violation is nonwillful, willful, or repeated willful. This

clarifies subsequent sections of the rule.

Section 4150.2, Notice and order to remove, is amended to provide

authority for the authorized officer to exercise discretion in

determining how nonwillful violations will be settled, close areas

temporarily for a period of up to 12 months to specified classes and

kinds of livestock in order to abate unauthorized use, and allow

notices of closure to be issued as final decisions.

Section 4150.3, Settlement, is amended to provide the authorized

officer with the authority to consider nonmonetary settlement for

unintentional incidental trespasses, in cases when the authorized

officer determines the livestock operator is not at fault, when an

insignificant amount of forage has been consumed, when damage to the

public lands has not occurred, and when nonmonetary settlement is in

the best interest of the United States. The method for determining

settlement amounts is amended. Settlement for nonwillful violations

equals the value of forage based on the monthly rate per AUM for

pasturing livestock on private, nonirrigated land in the State in which

the violation occurred.

Subpart 4160--Administrative Remedies

Subpart 4160, Administrative remedies, is amended to improve

organization, clarify administrative processes and requirements,

provide for application of the Departmental rule located at Sec. 4.21

of this title regarding effectiveness of a decision pending appeal and

procedures for obtaining a stay, and provide for the issuance of

decisions that take effect immediately.

Section 4160.1, Proposed decisions, is amended to clarify that a

final decision may be issued without first issuing a proposed decision

when action under paragraph 4110.3-3(b) of this part is necessary to

protect rangeland resources, or when action is taken under paragraph

4150.2(d) to close an area to unauthorized grazing use. Other

provisions clarify the information that must be contained in a proposed

decision, and specify that decisions will be served by certified mail

or personal delivery.

Sections 4160.1-1 and 4160.1-2 are removed.

Section 4160.3, Final decisions, is amended to clarify the process

for filing an appeal and a petition for a stay of a final decision. It

provides that decisions will be implemented at the end of the 30-day

appeal period except where a petition for stay has been filed with OHA,

in which case OHA will have up to 45 days to act on the petition. If

the petition is granted, the decision will be stayed until resolution

of the appeal.

The final rule also clarifies the amount of grazing use that is

authorized when a decision has been stayed by OHA. Where an appellant

has had no authorized grazing use during the preceding year, the

authorized grazing use must be consistent with the decision, pending a

final determination on appeal. Where a decision proposes a change in

the amount of authorized grazing use, the authorized grazing use during

the time an appeal is pending will not exceed the appellant's

previously authorized use.

Finally, this section provides authority to the authorized officer

for making decisions effective immediately, unless a stay is granted,

when it is necessary to protect rangeland resources under the standards

imposed by Sec. 4110.3-3(b), or to facilitate abatement of unauthorized

use by closing an area temporarily to grazing use under Sec. 4150.2 of

this part.

Section 4160.4, Appeals, provides instructions regarding the filing

of appeals and petitions to stay decisions. When a final decision is

issued, any person whose interest has been adversely affected may file

an appeal and a petition for stay of the decision within 30 days from

the date of receipt of a final decision, or 30 days from the date a

proposed decision becomes final in the absence of a protest. Under the

process of Sec. 4.21 of this title, OHA is allowed 45 days from the end

of the appeal period to review a petition for stay.

Subpart 4170--Penalties

Section 4170.1-1, Penalty for violations, is amended to provide for

a penalty for unauthorized leasing and subleasing in the amount of two

times the private grazing land lease rate for the state in which the

violation occurred as supplied annually by the NASS, as well as

reasonable expenses incurred by the United States in detecting,

investigating, and resolving the violation.

Section 4170.1-2, Failure to use, is amended to provide that if a

permittee or lessee has, for 2 consecutive grazing fee years, failed to

make substantial use as authorized in the lease or permit, or has

failed to maintain or use water base property in the grazing operation,

the authorized officer, after consultation with the permittee or

lessee, may cancel whatever amount of permitted use the permittee or

lessee has failed to use.

Section 4170.1-3, Federal or State animal control and environmental

protection or resource conservation regulations or laws, is removed.

The substance of this section is incorporated in Sec. 4140.1(c) of this

final rule.

Section 4170.2-1, Penal provisions under TGA, is revised slightly

to specify that any person who willfully commits an act prohibited

under Sec. 4140.1(b), or who willfully violates approved special rules

and regulations, is punishable by a fine of not more than $500.

Section 4170.2-2, Penal provisions under FLPMA, is amended to adopt

the alternative fines provisions of Title 18 U.S.C. section 3571.

[[Page 9906]]

Subpart 4180--Fundamentals of Rangeland Health and Standards and

Guidelines for Grazing Administration

Section 4180.1, The fundamentals of rangeland health (titled

National Requirements for Grazing Administration in the proposed rule)

for grazing administration, are added to establish fundamental

requirements for achieving functional, healthy public rangelands. These

fundamentals address the necessary physical components of functional

watersheds, ecological processes required for healthy biotic

communities, water quality standards, and habitat for threatened or

endangered species or other species of special interest.

Where it is determined that existing grazing management needs to be

modified to ensure that the conditions of healthy rangelands set forth

in Sec. 4180.1, Fundamentals of rangeland health, are met or

significant progress is being made to meet the fundamentals, the

authorized officer must take appropriate action as soon as practical,

but not later than the start of the next grazing season. This may

include actions such as reducing livestock stocking rates, adjusting

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

range improvements.

Section 4180.2, Standards and guidelines for grazing

administration, is added to direct that standards and guidelines will

be developed for an entire State or for an area encompassing portions

of more than one State, except where the geophysical or vegetal

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

not be ensured by using standards and guidelines developed for a larger

geographical area. The geographical area covered will be determined by

BLM State Directors in consultation with affected RACs. Once standards

and guidelines are in effect, the authorized officer shall take

appropriate action as soon as practical, but not later than the start

of the next grazing year upon determining that existing grazing

management practices are significant factors in failing to ensure

significant progress toward the fulfillment of the standards and toward

conformance with the guidelines. The preparation of standards and

guidelines will involve public participation and consultation with

RACs, Indian tribes, and Federal agencies responsible for the

management of lands within the affected area.

Section 4180.2(d) lists factors that, at a minimum, must be

addressed in the development of State or regional standards. The

guiding principles for the development of standards pertain to the

factors needed to help achieve rangeland health. More specifically, the

factors relate to watershed function, threatened or endangered species

and candidate species, habitat for native plant and animal populations,

water quality and the distribution of nutrients and energy flow.

Section 4180.2(e) lists guiding principles to be addressed in the

development of guidelines.

The rule provides that where State or regional standards and

guidelines are not completed and in effect by February 12, 1997, the

fallback standards and guidelines included in the text of the rule will

be implemented. The fallback standards and guidelines address largely

the same factors that are provided in the guiding principles for the

development of the State or regional standards and guidelines. The

fallback standards include more detail regarding the conditions that

would exist under each of the factors when rangelands are in a healthy,

functional condition than do the guiding principles presented in

Sec. 4180.2(d). Similarly, the fallback guidelines include grazing

management practices while the guiding principles of Sec. 4180.2(e)

refer more generally to the types of concerns to be addressed in the

development of State or regional guidelines.

Standards and guidelines will be applied through terms and

conditions of grazing permits, leases and other authorizations, through

AMPs and other activity plans, and through the conditions of

cooperative range improvement agreements and range improvement permits.

The Department recognizes that rangelands within a given area may be in

functional, healthy conditions even though individual isolated sites do

not meet the standards or guidelines. However, the Department believes

that general failure to meet the benchmarks across a broader area, such

as a typical BLM grazing pasture or BLM allotment, would be reliable

evidence that the area is not in healthy, functional condition.

IV. General Comments

Numerous comments addressed the overall rulemaking. These comments

asserted several central themes which crosscut different sections of

the rulemaking. Accordingly, BLM has decided to address these central

issues in this portion of the preamble. Within the context of such

discussion, particular sections of the proposed and final rules will be

referred to as necessary. Nevertheless, in these responses, BLM focuses

upon central issues that were of concern to commenters throughout the

proposal. Comments that were more specific to a particular section are

discussed in the following section entitled Section-by-Section Analysis

and Responses to Public Comments.

Rangeland Reform Is Not Needed

Some commenters took the position that general rangeland

improvement is unnecessary. Their view was that current legislation,

regulations, and procedures provide enough latitude and capability for

the government to administer the public rangelands properly, therefore

there is no justification for designing and implementing the rangeland

improvement program. They stated that the initiative should be dropped

or abandoned immediately. They asserted that the government has not

shown that the proposal will benefit the western range and many of the

elements of the rule are more appropriately dealt with in manuals,

instruction memos, and policy guidance.

In addition, the comment was often made that the National Research

Council study commissioned by the National Academy of Sciences reports

that the conditions of rangeland health in the West are largely

unknown. If the conditions are unknown, stated the commenters, it is

impossible to demonstrate a need for the proposed rule. Some commenters

stated that the entire proposal and EIS were politically driven and did

not relate to the resource protection issues of public land

administration.

The Department believes that there is a need for changes in public

rangeland grazing administration. The Department has been collecting

data on the condition of the rangelands for over 60 years. The

Department does have considerable information on all BLM lands, based

on these years of data collection, although the same level of detailed

knowledge may not be available on every allotment. The information

available is sufficient to identify trends in rangeland health across

the western rangelands.

The status and trends of the western rangelands upon passage of the

Public Rangelands Improvement Act (PRIA) in 1978 indicated that western

rangelands were producing below their potential and that rangelands

would remain in unsatisfactory condition or decline further unless the

unsatisfactory conditions could be addressed and corrected by intensive

public rangelands maintenance, management and improvement. Congress

articulated its view in PRIA that such unsatisfactory conditions on

public rangeland present a risk for soil loss, siltation,

[[Page 9907]] desertification, water loss, loss of wildlife and fish

habitat, loss of forage for livestock and other grazing animals,

degradation of water quality, flood danger, and threats to local

economies. In addition, BLM National Public Lands Advisory Council

recommended in 1992 that ``* * * foremost consideration needs to be

given to protecting the basic components of soil, water and vegetation.

Without assurances for the future well-being of these basic natural

resources, there is little to squabble about.''

BLM's research has concluded that in the long term under current

management practices 22 million acres of BLM uplands would be

functioning but susceptible to degradation, and about 20 million acres

would be nonfunctioning. The vegetation in some areas would change from

potential natural communities to mid seral or late seral stages because

of overgrazing, fire, or drought. Conditions would be worse in riparian

and wetland areas. The overall trends would be a slow, steady, long-

term decline in conditions. Approximately 466,000 acres of riparian

areas (43 percent of the total) on BLM land would be functioning but

susceptible to degradation, and 219,000 acres (21 percent) would be

nonfunctioning. The results of these studies are reported in detail in

the FEIS on this rulemaking. These studies show that without some

changes in the current program conditions in critical riparian areas

would continue to decline.

The program of rangeland improvement responds to the needs of BLM

to ensure the efficient administration and management of public

rangelands, as well as to the findings expressed by Congress most

recently in PRIA, the National Public Lands Advisory Council, and the

Western Governors' Association. The program has included and will

continue to include significant public involvement. The FEIS associated

with the rulemaking examined several alternatives, including continuing

grazing administration under current rules and procedures. The impact

analysis in Chapter 4 of the EIS demonstrates there would be

substantial improvement in riparian areas, uplands, and only slightly

reduced forage availability under the alternative adopted today when

compared to a continuation of current management.

Some commenters asserted that rangeland improvement is unnecessary

because it will not improve the condition of the public rangelands. The

Department disagrees. Commenters argued that few permittees or lessees

are poor stewards of the public rangelands. They stated that the

program will alienate many conscientious ranchers. The commenters

asserted that the agencies and public may lose the service and support

of these users in maintaining and improving the conditions of the

public rangelands, and that rangeland conditions are likely to degrade.

Therefore, they claimed, the initiative should be abandoned. However,

the Department believes that improving administration of public

rangelands will improve their condition, which will benefit all uses,

including livestock grazing. This is discussed more fully in the FEIS

on this rulemaking.

The standards and guidelines in the final rule are aimed at

improving the ecological health of the rangelands. The analysis in the

FEIS indicates there will be significant improvements.

The Department recognizes that the majority of public land grazing

permittees and lessees are conscientious stewards. However, it also

notes that line managers need clear authority and guidance to help

correct problems in grazing use and to improve the degraded condition

of some areas expeditiously. This program is intended to facilitate

cooperation between BLM employees and public land users in making those

improvements. Also, by making BLM and Forest Service management more

similar, it will be easier for permittees and lessees to comply with

land use requirements. Good stewards will not be adversely affected by

this initiative and will have an opportunity to work with the

Department to sustain the economic vigor of their industry while

maintaining or improving the ecological health of the public lands. The

Department recognizes that it is in the best interests of the users,

the public, and BLM to cooperate in meeting these objectives.

Commenters also stated that the Department has gone through the

formalities of public input but has failed to make public the findings

and statistics of the letters and meetings. During development of the

final rule, the Department considered all comments, and as a result has

modified the language of the proposed rule. All comments received are

available for review in BLM's administrative record. The section-by-

section portion of this preamble explains the changes made to the

proposed rule in this final rule.

Rangeland Improvement Is Inconsistent With Current Laws

Conflicts with TGA, FLPMA, and other laws. A number of comments

questioned whether the proposed amendments to the grazing rule conflict

directly with TGA, FLPMA, PRIA and other related Federal laws. The

BLM's main statutory authorities for regulating grazing on the public

lands are TGA, FLPMA and PRIA. In TGA Congress directed the Secretary

to bring order to the management of the public rangelands and improve

range conditions.

Specifically, Section 2 of TGA provides:

The Secretary of the Interior shall make provision for the

protection, administration, regulation, and improvement of such

grazing districts * * * and he shall make such rules and regulations

* * * and do any and all things necessary to accomplish the purposes

of this Act * * * namely to regulate their occupancy and use, to

preserve the land and its resources from destruction or unnecessary

injury, to provide for the orderly use, improvement, and development

of the range * * *.

The TGA authorizes the Secretary to, among other things, establish

fees, issue permits and leases and prescribe terms and conditions for

them, issue range improvement permits, and provide for local hearings

on appeals. The emphasis on disposal of Federal lands changed with the

Classification and Multiple Use Act in 1964 and FLPMA in 1976. In FLPMA

Congress articulated the national policy that ``the public lands be

retained in Federal ownership.'' 43 U.S.C. 1701. FLPMA also directs

that land management be on the basis of multiple use and sustained

yield, thus clarifying that other uses of public lands are equally

appropriate. FLPMA did not repeal TGA, but did provide additional

management direction. For example, section 402 of FLPMA provides that

grazing permits and leases shall be:

[S]ubject to such terms and conditions the Secretary concerned

deems appropriate and consistent with the governing law, including,

but not limited to the authority of the Secretary concerned to

cancel, suspend, or modify a grazing permit or lease for any

violation of a grazing regulation or of any term or condition of

such grazing permit or lease.

In 1978 Congress again focused on the public rangelands when it

passed PRIA. In Section 2 of that Act Congress found that ``vast

segments'' of the public rangelands were ``producing less than their

potential for livestock, wildlife habitat, recreation, forage and water

and soil conservation benefits,'' and so were considered to be in an

unsatisfactory condition.'' Congress went on in Section 2 to reaffirm a

national commitment to ``manage, maintain and improve the condition of

the public rangelands so that they become as productive as feasible for

all rangeland values.'' The [[Page 9908]] Department has concluded that

the amendments to the grazing rule are within the statutory authority

granted by Congress to the Secretary to administer the public lands

under TGA, FLPMA, PRIA, and related acts.

NEPA issues. A number of commenters asserted that the draft EIS was

inadequate. The commenters asserted that more local EISs were required.

The FEIS prepared for the rangeland improvement program describes the

environmental impacts that would result from several proposed

alternatives for managing BLM administered rangeland and for changing

the fees charged to permittees and lessees. Any subsequent narrower

decisions, such as the state or regional standards and guidelines or,

if necessary, more local determinations, will tier to the broader

national FEIS. Tiering is appropriate when a subsequent EIS or

environmental assessment is prepared on an action included in the

overall EIS, in this case, the FEIS prepared for the overall program.

Additional NEPA analysis will be conducted as appropriate as local or

regional decisions are made.

FACA Issues. A number of commenters stated that some of the

proposals relating to RACs, especially the provisions regarding task

forces of those councils, were violations of FACA. The Department

disagrees. The final rules adopted today provide that any subcommittee

will report directly to the chartered advisory council. The advisory

council will then independently review the input from the subcommittee

prior to presenting any consensus advice to the agency. As long as

subcommittees report to the agency through the chartered advisory

committee, and do not provide advice directly to the agency, their

operation is consistent with the requirements of FACA.

Takings. Some commenters asserted that various sections of the

proposed rule raise the possibility of a ``taking'' of private property

rights without ``just compensation.'' The United States Constitution

gives Congress the ``Power to dispose of and make all needful Rules and

Regulations respecting the Territory or other Property belonging to the

United States.'' Article IV, Sec. 3, cl. 2. The power includes

authority to control the use and occupancy of Federal lands, to protect

them from trespass and injury and to prescribe the conditions upon

which others may obtain rights in them. Utah Power & Light Co. v.

United States, 243 U.S. 389, 405 (1917).

In a series of laws, Congress has delegated primary responsibility

and authority to manage livestock grazing on public lands to the

Secretary, acting through BLM. The basic laws are TGA, FLPMA and PRIA.

In authorizing the issuance of grazing permits in TGA, Congress

expressly provided that the ``issuance of a permit * * * shall not

create any right, title, interest, or estate in or to the [public]

lands.'' 43 U.S.C. 315b. In FLPMA, Congress authorized the Secretary to

``cancel, suspend, or modify a grazing permit or lease, in whole or in

part, pursuant to the terms and conditions'' of the permit or lease. 43

U.S.C. Sec. 1752(a). The same section also authorizes the Secretary to

``cancel or suspend a grazing permit or lease for any violation of a

grazing rule or of any term or condition of such permit or lease.''

These statutes are implemented by BLM's regulations at 43 CFR Part 4100

et seq., including the amendments adopted here.

The Fifth Amendment to the United States Constitution provides in

relevant part that no person shall be denied property without due

process of law, and no private property shall be taken for public use,

without just compensation. This Amendment protects private property.

Because Congress made clear in TGA that grazing permits create no

private property interest in public lands, the Fifth Amendment's

protection is not implicated. The Courts have long held that no taking

of private property occurs in the course of lawful administration and

regulation of Federal grazing lands because the grazing permit

represents a benefit or privilege bestowed by the Federal government

upon a private individual and not a compensable property interest under

the Fifth Amendment.

Thus, an authorized officer's decision to change permitted use

(Sec. 4110.3), decrease permitted use (Sec. 4110.3-2), implement a

reduction in permitted use (Sec. 4110.3-3), decrease land acreage

(Sec. 4110.4-2), approve an AMP (Sec. 4120.2), or approve a cooperative

range improvement agreement (Sec. 4120.3-2) does not give rise to a

takings claim.

Some commenters asserted that permittees and lessees should be

compensated for any indirect adverse impact that cancellation,

nonrenewal, suspension or modification of grazing permits might have on

the permittee's base property. While base property is private property

protected by the Fifth Amendment, the United States Supreme Court, in

an opinion by Chief Justice Rehnquist, specifically considered and

rejected the argument that the increment of value added to a private

ranch by a public land grazing permit is a compensable property

interest, United States v. Fuller, 409 U.S. 488 (1973).

Even if, in other words, cancellation, nonrenewal, suspension, or

changes in the terms and conditions of a grazing permit might have some

negative effect on the value of the base property, the Supreme Court

has made clear this is not a ``taking.''

Some commenters asserted that the proposal to clarify title to

future permanent range improvements on the public lands in the name of

the United States constitutes a ``taking'' of private property. The BLM

has concluded that proper management of the public lands requires title

to permanent improvements on the public lands to remain with the land

and be held in the name of the United States. This clarification brings

BLM in line with Forest Service policy. This provision is prospective

in application; that is, it will not affect ownership or rights that

may currently be held in a range improvement. In FLPMA, Congress

provided for limited compensation for permanent improvements when a

permit or lease is cancelled in whole or in part, in order to devote

the public lands to another public purpose, including disposal. 43

U.S.C. 1752(g). To be faithful to this Congressional directive, the

amendment requires the authorized officer to retain a record of

permittee or lessee contributions to specific authorized range

improvement projects. This record will be available for use in

determining any compensation owed the permittee or lessee in the event

a permit or lease is cancelled in order to devote the public lands to

another public purpose.

Comments were also received on a proposed amendment to require

permittees or lessees, as a term or condition of a grazing permit or

lease, to allow BLM reasonable administrative access across non-Federal

lands under its control for the orderly management and protection of

the public lands. Sometimes, because of the location and configuration

of public and non-Federal lands, BLM personnel need reasonable access

across non-Federal lands under the control of permittee or lessee to

access Federal land in order to carry out its management

responsibilities on public land. Providing for such access is a

reasonable condition to attach to the permit or lease authorizing

livestock grazing on public lands.

Administrative appeals procedures. Many commenters raised questions

of fairness and appeals; many of these commenters referred to these as

``due process'' issues. The existing administrative and applicable

judicial protections afforded permittees and [[Page 9909]] lessees

pertaining to the issuance, modification, suspension, cancellation,

renewal and general administration of grazing permits and leases will

continue. For example, some commenters read the proposal to amend

Sec. 4.477 to require a permittee to choose between the evidentiary

hearing provided by TGA and a stay of a final decision. A permittee

will not have to choose between an appeal and requesting a stay. Both

will be available.

The provisions adopted today make the procedures for appealing a

final decision consistent with standard Departmental procedures for

other types of appeals. Any person whose interest is adversely affected

by a decision of the authorized officer has full appeal rights.

Standing to maintain an appeal will continue to be determined by OHA.

Except in situations where immediate action is needed for resource

protection in accordance with the standards set forth in Secs. 4110.3-

3(b) and 4150.2(d), BLM will issue proposed decisions, which may be

protested. Except in situations where immediate action is needed for

resource protection in accordance with the standards set for in

Secs. 4110.3-3(b) and 4150.2(d), no decisions will be effective until

after the 30-day appeal period. The applicant can also file a petition

for a stay of the decision while final determinations on appeal are

being considered. If a petition for a stay is filed along with the

appeal, the decision may be temporarily stayed for up to 45 days after

the end of the 30-day period for filing an appeal while the petition is

being considered. If a stay is granted, it will suspend the effect of

the decision until final disposition of the appeal. Finally, parties

have the option to seek administrative or judicial review of a decision

that is put into immediate effect.

V. Section-by-Section Analysis and Responses to Public Comments

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

Section 4.477 Effect of Decision Suspended During Appeal

The proposed rule would have revised the heading of this section to

reflect that grazing decisions would no longer automatically be

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

of 43 CFR subpart 4160, and would also have removed other references to

suspension of the decision of the authorized officer upon appeal.

Comments on this section addressed several major issues. Some

commenters asserted that the proposal did not provide adequate

opportunity for administrative appeals and violated various statutory

provisions. Some read the proposal to require a permittee to choose

between the evidentiary hearing provided by TGA and a stay of a final

decision. Other commenters were concerned about possible fiscal impacts

of the provision. Other commenters stated that the proposed provision

would speed implementation of needed grazing decisions.

The provisions adopted today make the procedures for appealing a

final decision consistent with standard Department procedures for other

types of appeals. These procedures are detailed in regulations of the

Department's OHA, Title 43 of the Code of Federal Regulations, Part 4,

Subpart B. Any person whose interest is adversely affected by a

decision of the authorized officer still has full appeal rights. Except

in situations where immediate action is needed for resource protection

in accordance with the standards set forth in Secs. 4110.3-3(b) and

4150.2(d), decisions will not be in effect until after the 30-day

appeal period. An appellant can also file a petition for a stay of the

decision while final determinations on appeal are being considered. If

a petition for a stay is filed along with the appeal, the decision will

be temporarily stayed for up to 45 days after the end of the period for

filing an appeal (for a total of up to 75 days) while the petition is

being considered. If a stay is granted, it will suspend the effect of

the decision until final disposition of the appeal.

The provision will not require an appellant to choose between this

process and the hearing on the evidence granted by TGA. The hearings

referenced in this provision do include a review of the evidence on the

case. A permittee will not have to choose between having such a hearing

and requesting an appeal. Both will be available.

In accordance with the above discussion, the Department has decided

to adopt the provision as proposed. The phrase ``pertaining to the

period during which a final decision will not be in effect'' is added

to clarify that the reference to Sec. 4.21(a) relates to those specific

provisions.

Part 1780--Cooperative Relations

Section 1784.0-5 Definitions

The proposed section would have replaced the term ``authorized

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

terminology of the rule more consistent with the terminology of FACA

and 41 CFR 101-6.1019.

The Department received very few comments on this initial section

of the discussion of cooperative relations. The most common issue

raised was the abolition of grazing advisory boards (GABs). This issue

is covered below under the discussion of Sec. 1784.6-5.

Some comments suggested that the change from ``authorized

representative'' to ``designated Federal officer'' was designed to give

greater authority and stature to Federal personnel.

Each RAC or other advisory committee will have a ``designated

officer of the Federal Government,'' as required by section 10(d) of

FACA, who will chair or attend each meeting. The regulations

implementing FACA, 41 CFR subpart 101, use the term ``designated

Federal officer'' and prescribe the authority and responsibility of

that position. As required by FACA, this officer will call the meetings

of the committees and will develop the agendas of the meetings.

In accordance with the above discussion, the Department has

concluded that the final rule will include these changes as proposed,

because it intends that cooperative relations be conducted in

conjunction with FACA and the language and requirements of this final

rule should be consistent with FACA.

Section 1784.2-1 Composition

Under the proposed rule, this section would have been amended by

eliminating paragraph (b), and amending existing paragraph (c), which

is redesignated new paragraph (b). Previously, paragraph (b)

established an eligibility requirement for grazing advisory board

members. This requirement would no longer have been necessary with the

discontinuance of the grazing advisory boards.

New paragraph (b) would have added to existing education

requirements for committee membership new requirements that individuals

can qualify to serve on advisory committees if they have experience or

knowledge of the geographic area covered by the committee, and they

have demonstrated a commitment to collaborate in seeking solutions to

resource management issues.

Many commenters expressed confusion about the Department's use of

the terms ``board,'' ``council'' and ``committee.'' In this final rule,

``council'' is used to refer exclusively to the RACs. ``Committee'' is

used in Secs. 1784.0-5, 1784.2-1, 1784.2-2, 1784.3, 1784.5-1, and

1784.5-2. These [[Page 9910]] sections have application to all types of

advisory committees, not just RACs. A RAC is a type of advisory

committee. Sections 1784.6-1 and 1784.6-2 concern RACs. ``Board'' is

not used in this final rule.

Many commenters on this section supported the concept of broadening

membership on the councils. Commenters noted that because useful

knowledge and expertise is widely distributed in society, membership of

advisory committees should be broadened to take advantage of this.

Some commenters specifically objected to changing this section.

There were a number of comments about the specific composition of the

councils. Most of these comments were also addressed to subsequent

sections, especially Sec. 1784.6-1. Since these comments related to the

Department's proposals concerning the makeup of the RACs, they are

discussed under that section, below.

Some commenters made an identical suggestion to change the last

clause of Sec. 1784.2-1(b) by striking the requirement that council

members have ``demonstrated a commitment to collaborate in seeking

solutions to resource management issues.'' One comment stated that

commitment without necessary concurrent expertise is useless, and that

accommodation for regional differences in a broad range of specific

information on each area should be a necessity. A number of commenters

questioned who or what should determine adequate experience, and others

suggested a better definition was needed.

A commitment to collaborative decisionmaking is critical to the

success of these committees. The Department has concluded that the

final rule will adopt the proposed language requiring both appropriate

expertise and a commitment to collaborative decisionmaking, because

such a balance is the best way to assure the success of any advisory

committee.

FACA requires that the head of an agency appoint members to any

committee providing consensus advice to the agency. In the case of

RACs, the Secretary must appoint members. In making final selections of

RAC members, the Department will make determinations as to what is

adequate experience. Since geographic areas covered by individual RACs

will be highly variable it would be difficult to define this term too

narrowly without unduly limiting the flexibility which will be needed

to ensure that each council includes members who will represent a broad

range of interests and make a substantive contribution to the

committee's deliberations.

In accordance with the above discussion, the Department has decided

to adopt the provision as proposed.

Section 1784.2-2 Avoidance of Conflict of Interest

In the proposal, paragraph (a)(1) of this section would have been

amended to allow permittees and lessees to serve on any advisory

committees, including RACs and their subgroups. This change would have

been made to ensure that permittees and lessees, as important

stakeholders in the management of public lands, could provide input to

advisory committees so that the committees would have been able to

develop recommendations based on direct community and user input.

Paragraph (b) would have clarified that no advisory committee member

could have participated in any matter in which the member had a direct

interest. The proposal included a new paragraph (c), which would have

provided that members of RACs have to disclose their direct or indirect

interest in Federal grazing permits or leases administered by BLM.

The Department received many comments on this section. Many

commenters believed the conflict of interest provisions applied only to

ranchers, and stated that such provisions were unfair and should apply

to all members of the councils. Many commenters spoke to the membership

of environmentalists on the councils. Commenters asserted that

environmental groups have a direct conflict of interest. Some asserted

that all users of specific areas have an interest in that area, and

should be excluded from serving on a council studying the situation in

that area. Commenters stated that allowing members of national or

regional environmental groups to serve violated the local concept of

the RACs.

A number of commenters asserted that permittees or lessees who were

involved in an issue should be involved in the process, so they would

have ownership of or support the solution developed in a RAC. Others

suggested that since permittees and lessees are bound by the terms and

conditions of their permits or leases, and by the provisions of AMPs,

it would seem only proper to allow permittees or lessees on a council

to provide input into the management decisions which will affect that

grazing allotment. One comment suggested that individuals with an

interest in an issue should be allowed to participate in the

discussions of the issue, but should be excluded from any voting

required.

Another commenter provided a suggested definition of indirect

interest that includes any situation in which outside interests, of

whatever nature, might lead to substantial interference with or

disregard for a duty of serving on a grazing council or committee.

Commenters challenged the legal basis for a conflict of interest

provision. They asserted that if it is based on the Ethics in

Government Act, that the law is limited to Federal employees or paid

advisors, and that ethical standards under Federal law are not limited

to financial gain but include the use of one's official position to

promote a personal viewpoint.

``Conflict of interest'' is an accepted legal concept that

generally refers to ``a clash between public interest and the private

pecuniary interest of the individual concerned.'' (Black's Law

Dictionary, 5th Edition, 1979, p. 271). The concept applies to

situations where a committee member, who is serving a public interest,

has private financial interests that might conflict with his or her

public role. This would include holding a permit that might be impacted

by the deliberations of a RAC.

The provision does not apply only to permittees or lessees. It

applies to all advisory committee members. The provision does not apply

to situations in which an individual's interest in the deliberations of

a committee is not financial. The provision does not refer to cases

where an individual has a membership in an organization that is in

litigation with the government, unless the individual has a pecuniary

interest in the outcome of the litigation. Furthermore, it does not

refer to cases where an individual might develop reports for another

organization that in turn might influence agency decisions.

Permittees and lessees were specifically mentioned in this

provision to draw attention to the fact that the proposed rule

broadened the opportunities for participation by such persons. Under

the previous regulations at Sec. 1784.2-2, permittees and lessees

normally would have been prohibited from serving on any committees

advising BLM except for grazing advisory boards. Under the provision

adopted today, permittees and lessees can participate on the broader

based RACs or on any other advisory committee.

The concepts of ``direct'' and ``indirect'' interest refer back to

the basic principle of conflict of interest, and refer to financial

matters. Both terms are defined in common usage. ``Direct'' interest

refers to an interest [[Page 9911]] which is certain, not in doubt or

contingent on some other factor. ``Indirect'' interest refers to an

interest contingent on another factor, or through a third party. In the

case of permittees, an indirect interest will generally be an interest

in a permit or lease that is through a third party, such as a child,

spouse, business partner, or other affiliate.

The rule as finalized allows permittees and lessees with financial

interests to serve on committees, thus broadening the base of advice

available to the Department. This provision simply requires disclosure

of interests by advisory committee members, and prohibits them from

participating in specific matters in which they have such interests. It

does not prevent persons with a legal interest from serving on

committees.

Comments concerning application of conflict of interest provisions

caused the Department to reexamine the types of interests that would

have to be disclosed by committee members. In the final rule, as

detailed below, the Department has expanded the list of interests that

might be held by persons who might serve on RACs and which must be

disclosed.

In the final rule, the Department has sought to correct any

confusion between the terms ``council,'' ``committee,'' and ``board,''

as discussed at Sec. 1784.2-1. Conflict of interest provisions apply to

all advisory committees that advise the Department as well as to the

RACs.

In accordance with the above discussion, the Department has

concluded that the final rule should adopt a modified version of the

proposed rule. Modifications have been made to ensure consistency in

the use of the terms ``council'' and ``committee,'' and for consistency

with other changes to the proposal regarding the structure of RACs,

discussed below under Secs. 1784.6-1 and 6-2. Additionally, the word

``multiple'' is eliminated in this section, and in all subsequent

sections. The Department has made this decision to simplify the name of

the councils.

In final paragraph (c), the phrase ``leases, licenses, permits,

contracts, or claims which involve lands or resources, or in any

litigation which involve lands or resources administered by the Bureau

of Land Management,'' is substituted for the phrase ``Federal grazing

permits or leases.'' This last change is made for consistency with the

principle that this provision applies to all types of financial

interests. The phrase adopted is consistent with that in existing

paragraph (a) of this section. While persons who hold such interests

will still not normally be allowed to serve on advisory committees,

except for the general exception introduced by this rule for grazing

permittees or lessees, under special circumstances such a person may

serve on a committee. In such case, the person would be required to

disclose his or her interests.

Section 1784.3 Member Service

The proposed rule would have established that appointments to

advisory committees would have been for two-year terms unless otherwise

specified in the charter. Specific references to grazing advisory

board, district advisory council and National Public Lands Advisory

Council appointments, terms and election procedures, would have been

removed.

Also, the provisions for reimbursement of committee members' travel

and per diem expenses would have been modified to make clear that

individuals selected by committees to provide input, but who themselves

are not appointed committee members, would not have been eligible for

reimbursement. This provision was necessary to limit costs.

Several comments were received on the charters and chartering

process for advisory committees. Some comments indicated that as

proposed, the changes would create the need for a new charter for each

committee which would result in a lack of continuity in committee

functioning.

Today's action amends the general advisory committee regulations

found at 43 CFR Subpart 1784. These general regulations contain

standards and procedures for the creation, operation and termination of

advisory committees to advise the Secretary and BLM on matters relating

to public lands and resources under the administrative jurisdiction of

BLM. The proposed amendments must comply with the requirements of FACA.

Thus the Department's discretion is limited by the terms of FACA.

FACA directs that advisory committees shall terminate within two

years of establishment, unless renewed. At the time of renewal a new

charter must be filed. The Department expects that charters will look

substantially the same each time they are renewed, although changes may

be made if experience suggests revisions are needed. The charter will

meet the requirements of FACA, but will be relatively general in

nature. Charters will include provisions such as council purpose and

responsibilities, membership requirements, and terms of appointments.

Bylaws may be prepared by individual councils if needed to provide

additional procedural guidance.

Many comments were received on membership service and tenure.

Comments included the following: a public official's term on a

committee should coincide with the term of office, vacancies should be

filled in the same manner as positions were originally filled, members

should be selected on the basis of merit, and membership should be

staggered to achieve continuity. Several comments suggested that

members should serve for longer than two years so they would become

familiar with issues. Some comments indicated that two-year limits

should be established. Other comments supported the view that charters

should allow lifetime membership. Some comments suggested that members

should be elected. Some of these comments suggested that members should

be elected by grazing permittees and lessees.

Under FACA, the Department has some discretion regarding the terms

of service for members. Generally, member terms are coterminous with

the term of the charter. The Department intends to follow this general

practice with RACs, except where special circumstances require

otherwise. For example, the Department intends to appoint initial

members to staggered terms, so members' terms will not all terminate in

the same year. This ensures that there will always be experienced

members on a council. The Department expects that some members will be

reappointed, providing additional continuity to the councils. These

practices have been used successfully in the past.

As explained in the discussion of Sec. 1784.2-1, appointments to

the advisory councils will be by the Secretary, as required by FACA.

Secretarial appointment is also required by FLPMA. The Department will

seek nominations from Governors, interested groups and private

citizens. Members will qualify to serve on advisory committees because

their education, training, or experience enables them to give informed

and objective advice on matters of interest to the committee. Decisions

about replacing members appointed to fill the position of the local

elected official when the member's elective term expires will be made

on a case-by-case basis. Existing paragraph (b)(2), which by today's

action is redesignated (a)(2), provides for filling vacancies occurring

by reason of removal, resignation, death, or departure from elective

office. Such vacancies are to be filled using the same method by which

the original appointment was made. Under existing

[[Page 9912]] paragraph (b)(1), which by today's action is redesignated

(a)(1), BLM must replace members of committees who are serving in the

elected official position, and who leave office. It may be possible in

some cases for the member to continue to serve on the council in

another appointed position.

Comments were received both for and against BLM payment of travel

and per diem for council members. Some comments suggested that members

should volunteer their time and expenses and some comments suggested

that non-resident members should pay for their own travel. Other

comments questioned whether advisory committee costs would escalate

over time and whether councils would be in session all of the time. One

comment questioned why members of resource area councils should be

reimbursed, but not rangeland resource teams or technical review teams,

and suggested that BLM establish technical teams and reimburse the

technical team members.

FLPMA (43 U.S.C. Sec. 1739), as amended by PRIA (43 U.S.C. 1908),

requires establishment of advisory committees representative of major

citizen interests concerned with resource management planning or the

management of public lands. The RACs will fulfill this requirement.

Section 309 of FLPMA provides that ``members of advisory councils shall

serve without pay, except travel and per diem will be paid each member

* * *'' Regulations at 43 CFR subpart 101, Federal Advisory Committee

Management, also allow payment of travel expenses and per diem.

The objective of RACs established under these regulations is to

make available to the Department and BLM the advice of knowledgeable

citizens and public officials regarding both the formulation of

operating standards and guidelines and the preparation and execution of

plans and programs for the use and management of public lands, their

natural and cultural resources, and the environment. The Department has

concluded that to ensure broad and regular participation by members, it

will continue to compensate advisory committee members for travel and

per diem expenses. The Department does not anticipate that operating

these committees will generate a need for substantial increases in

Federal funds in the future. In any event, funding is subject to future

review in the budget and appropriations process. Moreover, advisory

committees are required under FLPMA and the Department has concluded

the committee structure adopted in the rule will reap tangible rewards

in improved land management and increased cooperation among

stakeholders.

The Department anticipates that the localized teams will be in

existence for limited time periods and will focus on fairly narrow

issues. As a result, the Department has concluded that members of these

teams who are not also members of the parent advisory council will not

be reimbursed for travel and per diem. The Department is also making

the decision not to reimburse expenses of these localized teams in

order to limit the expenses incurred by BLM and the Department.

However, the final rule allows BLM to constitute a special function

subgroup such as a technical review team and reimburse RAC members for

travel expenses. In addition, the Department has the authority to

purchase services in support of an advisory council, and on occasion

may do so.

In accordance with the above discussion, the Department has decided

to adopt a version of the proposed rule. Several minor changes are made

in paragraph (d). All of these changes are intended to clarify that

this section applies to all advisory committees, not just RACs.

References to resource review teams and technical review teams are

omitted from the final version of the rule for that reason, and for

consistency with the models of RACs finalized today in Secs. 1784.6-1

and 6-2. Those terms are replaced with a more general reference to

``subgroups.''

Section 1784.5-1 Functions and Section 1784.5-2 Meetings

These sections would have been amended by replacing the term

``authorized representative'' with the term ``designated Federal

officer.'' These changes would have provided consistency with the

terminology of FACA.

No comments were received that pertained solely to these sections.

The Department has decided to adopt this provision as proposed.

Section 1784.6-1 National Public Lands Advisory Council, Reserved

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

Councils, and Section 1784.6-5 Grazing Advisory Boards

References to the National Public Lands Advisory Council, district

advisory councils and grazing advisory boards would have been removed

in their entirety and replaced with three new sections that would have

established multiple resource advisory councils and associated input

teams. Sections 1784.6-4 and 1784.6-5 would have been removed. Reserved

sections 1784.6-2 and 1784.6-3 would have been replaced by new

sections.

No comments were received on the proposals relating to

Secs. 1784.6-2 and 6-3. A number of comments were received concerning

Secs. 1784.6-4 and 6-5. Comments directed to Sec. 1784.6-1 have been

addressed below in the discussion of the new provisions in that

section.

Many commenters stated that the grazing advisory boards' members

had both knowledge of and an interest in the land. Some commenters who

supported establishment of the RACs stated that the grazing advisory

boards should also be retained; others stated that the grazing advisory

boards should be abolished.

Grazing advisory boards have served a useful purpose in providing

the Department with valuable input from permittees regarding grazing

issues. However, the statutory provision in FLPMA, section 403,

establishing grazing advisory boards expired by its own terms on

December 31, 1985. Since then, the boards have been authorized only by

Secretarial order. For several reasons, the Department has concluded

that it will proceed with its proposal to abolish the boards and to

rely on one general form of advisory committee, the RACs. While grazing

advisory boards have been useful, the Department believes that more

collaborative public rangeland management requires a broader scope of

interests advising BLM. The function of grazing advisory boards, as

defined by FLPMA, was limited to making recommendations to management

concerning the development of AMPs and the utilization of range

betterment funds. While grazing advisory boards may have included some

individuals not involved in grazing, this was not uniformly the case.

RACs will address a full range of resource management issues, including

AMPs and planning for the expenditure of range betterment funds and

will broaden public involvement in the process.

All groups that provide advice to the Federal government are

subject to the requirements of FACA, unless specifically excluded by

statute. FACA specifies a series of requirements for committees and

other bodies advising the Federal government, including that they be

balanced in terms of representation, have notices of meetings published

in the Federal Register and be open to the public, keep various types

of records, and implement other procedural safeguards that will assure

public involvement in resource management issues. The Department

believes it is important that management of the public rangelands

[[Page 9913]] involve a wide range of public involvement. To achieve

this, and to comply with FACA, the Department has concluded that

grazing advisory boards should be abolished and RACs created.

In accordance with the above discussion, the Department has

concluded that the final rule should adopt provisions as proposed

because these provide the best alternative for promoting cooperative

relationships in resource management.

Section 1784.6 Membership and Functions of Resource Advisory Councils

and Council Subgroups

In the proposal, the title of this section would have been changed

for consistency with subsequent changes in Secs. 1784.6-1 through 6-3.

It would have referenced multiple resource advisory councils (MRACs),

as well as rangeland resource teams and technical review teams.

A few comments were addressed to this section, but covered issues

relating to the substance of the following sections. They will be

discussed under the pertinent sections below.

Because the Department has concluded that the final rule should

adopt a more flexible model for public participation than was

envisioned in the proposal, it has changed this title to reflect the

three model version of RACs adopted in final rule Secs. 1784.6-1 and 6-

2. References to rangeland resource teams and technical review teams

are changed to ``subgroups'' for that reason, and ``multiple'' is

omitted from the name of the RACs, as discussed at Sec. 1784.6-1.

Section 1784.6-1 Resource Advisory Councils--Requirements

Under the proposed rule, this section would have provided for the

establishment of MRACs. One MRAC has been established for each BLM

administrative district except when prohibited by factors such as

limited interest in participation, geographic isolation in terms of

proximity to users and public lands, or where the configuration and

character of the lands is such that organization of councils along BLM

district boundaries is not the most effective means for obtaining

advice on the management of all the resources across an entire area.

The exceptions would have been intended to provide for situations such

as those encountered in Alaska where it is difficult for interested

persons to participate because of extreme travel distances, or

situations where management of neighboring BLM districts or portions of

districts involving similar lands can best be served by organizing an

MRAC along boundaries other than BLM district administrative

boundaries. The determination of the area for which an MRAC would have

been organized would have been the responsibility of the affected BLM

State Director. Organization by ecoregion boundaries would have been

encouraged where appropriate. The Governors of the affected States and

established MRACs could have petitioned the Secretary to establish an

MRAC for a specific BLM resource area.

MRACs would have provided advice to BLM officials to whom they

report regarding the preparation, amendment and implementation of land

use plans. The councils would also have assisted in establishing other

long-range plans and resource management priorities in an advisory

capacity. The Department intended that this would have included

providing advice on the development of plans for range improvement or

development programs and included in the proposed amendments to 43 CFR

subpart 4120 a requirement for consultation with MRACs in the planning

of range improvement or development programs. MRACs would not have

provided advice on personnel management, nor would they have provided

advice on the allocation and expenditure of funds subsequent to budget

planning.

Appointments to MRACs would have been made by the Secretary. In

making appointments, the Secretary would have considered nominations

from the Governor of the affected State and nominations received in

response to a public call for nominations. The Secretary would have

encouraged Governors to develop their nominations through an open

public process. In reviewing nominations submitted by the Governors,

the Secretary would have considered whether an open public process was

used. All nominations would have been required to be accompanied by

letters of recommendation from interests or organizations to be

represented that are located within the area for which a council is

organized.

The Secretary would have appointed 15 members to each MRAC. Five

members would have been selected from persons representing commodity

industries, developed recreational activities, or the use of public

lands by off-highway vehicles; five would have been selected from

representatives of nationally or regionally recognized environmental or

resource conservation groups and wild horse and burro interest groups,

from representatives of archeological and historical interests, and

from representatives of dispersed recreational activities; and five

would have been selected from persons who hold State, county, or local

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

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

science academia, and State agencies responsible for the management of

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

proposed rule would have required that at least one of the members

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

office. An individual would not have been allowed to serve on more than

one MRAC at any given time.

The proposed rule would have required council members to have

demonstrated experience or knowledge of the geographic area for which

the council provides advice. It would have required that all members of

MRACs attend a course of instruction in the management of rangeland

ecosystems that had been approved by BLM State Director. This

requirement was intended to ensure a common general understanding of

the resources management principles and concerns involved in management

of the public lands.

The proposed rule would have provided that an official meeting of

an MRAC required at least three members from each of the three broad

categories of interests from which appointments were made. Formal

recommendations of the council would have required agreement by at

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

that attend an official meeting.

MRACs would have had the option of requesting a Secretarial

response where the MRAC believed its advice had been arbitrarily

disregarded by the BLM manager. If requested, the Secretary would have

responded directly to a council's concerns within 60 days. Such a

request would have required agreement by all 15 members. The

Secretary's response would not have constituted a decision on the

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

administrative appeal and would not have precluded an affected party's

ability to appeal a decision of the authorized officer.

The Department received many comments on this section of the

proposal. Many commenters were opposed to the abolition of the grazing

advisory boards. Comments on the grazing advisory boards have been

covered above in the discussion of Sec. 1784.6-5. Many were opposed to

the formation of the MRACs. Others said that the proposed system was in

direct conflict with the requirements for BLM [[Page 9914]] to

coordinate with State and local government in the decisionmaking

process because the new system would be unwieldy and expensive. Some

commenters stated that the councils would not bring about significant

changes in the health of our public lands, but would perpetuate local

control of public lands.

Other commenters were opposed to the MRACs because they said that

the Federal agencies were being paid to manage the public land for

public benefit, and they should do so. Some commenters charged that the

Department was trying to subordinate or eliminate its legal obligations

under sections of PRIA. Others stated that the public is involved in

range decisions through the NEPA process and so MRACs were unnecessary.

Many commenters supported establishment of the MRACs. A typical

comment stated they were an improvement over the grazing advisory board

system. Several of the commenters who supported establishment of the

councils suggested they be tried on an experimental basis.

Many commenters spoke to the make-up of the MRACs. Most of these

commenters stated that ranchers would be under-represented. Some

pointed out that the practical, ecological and managerial knowledge of

permittees is essential, and that therefore they should be a required

component. Some suggested that council membership should reflect the

major users of the land in each specific area.

Some commented that it was discrimination to require

environmentalists to be members of national organizations. Others said

it was unfair to exempt the staffs of environmental organizations from

the residency requirements which they believed were imposed on all

other council members.

Many commenters spoke to participation of government employees on

the councils. Some supported such participation especially by

representatives of State wildlife agencies. Others were opposed to

participation by government employees because they believed BLM would

coordinate with such agencies anyway, and the councils should be for

the government to get public input.

Some stated that prospective members should be supported by letters

of recommendation from individuals and local associations of the area

they would represent. Others specifically were opposed to the

requirement for letters of recommendation. Commenters said that to

require letters of recommendation from ``local interests'' would

prevent the councils from being balanced and violates FACA. One comment

stated that because salmonids were so important in many areas, someone

on the council should be knowledgeable of salmonids.

Other comments regarding membership addressed lending institutions,

academicians, Indian tribes, and other specific groups.

Many commenters said that it was important for the MRACs to be made

up of people who had local interests and knowledge, and stated that all

members should be local. Other related comments addressed the need for

local expertise, a financial stake in the land, and other factors. Some

asserted that council members must share a primary commitment to

improving grazing as a land use. Some of these same commenters asserted

that all members should be required to demonstrate their knowledge of

rangeland, vegetation, and livestock management, or related areas.

Many commenters were concerned with the process of selecting

members. Suggestions included that members be elected by the

permittees, or appointed by the county commissioners or the Governor.

Others objected to their being appointed by the Governor or by the

Secretary. Many commenters objected to self-nomination of individuals

to the MRACs.

A number of commenters spoke on operation of the MRACs. Some stated

that no expenses should be paid. Some suggested that strict standards

on conduct and meetings should be developed to prevent one interest

from dominating. Others suggested that recommendations from the local

council should have some jurisdiction over the actions of the Federal

land management agency. Some commenters stated that the provision

prohibiting councils from providing advice on funding and personnel

matters was too restrictive. Some objected to the Secretarial appeal

provision. Several asked whether the MRACs would give recommendations

or advice, or suggested that the advisory council serve as a reviewer

of proposed decisions of the authorized officer. Some commenters raised

a concern about the development and content of the charter, and about

evaluation of the councils. Others were concerned about the requirement

for consensus because they thought it would result in a serious delay

in decisionmaking.

Some commenters spoke to the jurisdiction of the MRACs and how that

would be determined. A number stated they should be based on BLM

districts or on ecoregions. Some objected to the State Director being

authorized to determine the area covered by a council.

A number of commenters spoke to council size. Some stated they were

too large, a few thought they were too small. Some stated that the

basic principle should be balanced and broad representation of public

concerns, not a specific number. A number of specific recommendations

for MRAC membership and size were made.

Numerous substantive suggestions were made for the course of study.

Other comments included a statement that the proposal differed in

several material respects from the products of the Colorado Working

Group. Some commenters suggested that various terms be defined

including ecosystem, biodiversity, environmentalist, rangeland

ecosystem, historical and archeological interests, direct interest,

dispersed recreational activities, insufficient interest, unbalanced

viewpoint, nationally or regionally recognized, and ecosystem

boundaries. Some commenters suggested that the MRAC should take no

actions to which the permittees or lessees involved did not agree.

The Department's decisions to form the RACs and to abolish grazing

advisory boards have been discussed at Sec. 1784.6-5, as is the need

for greater public involvement than that provided by the grazing

advisory boards. General requirements of FACA, which have dictated a

number of the provisions adopted today, are discussed at Sec. 1784.2-1,

Composition. Under the requirements of FACA, members of committees

advising the Federal government must be appointed by the head of the

agency, in this case the Secretary. State and local government will be

included in the process through representation on the RACs, as well as

being consulted on numerous specific types of decisions, such as on

designation or adjustment of allotment boundaries (Sec. 4110.2-4),

increasing permitted use (Sec. 4110.3-1), implementing reductions in

permitted use (Sec. 4110.3-3), development of AMPs (Sec. 4120.2), and

other BLM decisions. See the discussions below on those sections for

additional information.

The Department has concluded that the new system will be workable

and neither unwieldy nor excessively expensive. Obtaining input from

all interested parties on BLM decisions early in the process will in

the long run reduce objections and appeals. The Department anticipates

that this will not only expedite implementation of agency actions, but

concurrently will reduce overall rangeland management expenses by

making the program more efficient. For example, the Department does not

expect travel expenses to be [[Page 9915]] significantly greater than

they were for the grazing advisory boards, particularly with the

addition of a residency requirement. The issue of costs of advisory

committees is discussed further at Sec. 1784.3, Member service.

The system will not necessarily be a multilevel structure. Under

the provisions adopted today, only the RACs themselves will be

required. The other subgroups will be discretionary. While the groups

will be local, in a broad sense, the Department believes that providing

for diverse participation through implementation of the provisions

adopted in this section of the final rule will ensure that all

interests are fairly represented. Furthermore, the requirement for

consensus, which is retained in the final rule, will ensure that the

three groups represented will have an equal say in making decisions,

and no one interest will be isolated by majority vote.

The Department acknowledges that it is the responsibility of BLM to

manage the public grazing lands. However, several different statutes,

including FLPMA, PRIA, and NEPA, call for public participation in

decisionmaking processes regarding such programs. A purpose of these

RACs is to facilitate such participation, and their formation and

structure is fully consistent with those legal requirements. While

there may be some initial complications in establishing the RACs, the

Department believes that they are critical to long-term improvements in

the management of our public grazing lands. For that reason, the

Department has decided not to try them on only an experimental basis.

The Department has carefully considered the structure and functions of

the MRACs. In response to the concerns about under representation of

grazing interests, the Department agrees that, to the extent possible,

the make-up of the commodity group on the council should reflect the

distribution of commodity interests in the area represented by the

specific council. For example, if approximately 3/5ths of the commodity

interests in an area are grazing operators, 1/5th are timber

harvesters, and 1/5th are miners, the commodity group on the council

should include 3 permittees or lessees, 1 timber harvester, and 1

miner. Such a distribution will ensure that the necessary expertise is

present to deal with technical issues which might come before a council

representing that specific geographic area. While the Department does

not agree that it is necessary or desirable to specify this in the text

of the rule, since in some cases it may be impossible to achieve these

optimal numbers, the Department will strive to arrive at this outcome

during the appointment of council members.

Under the rule adopted today, environmental members will not have

to be members of national groups. All nominees to the RACs will be

required to have letters of recommendation, but because the final rule

requires residency in one of the States within which the area to be

covered by the council is located, the letter need not come from a

local source. These requirements apply equally to all council members,

environmentalists as well as commodity interests. Additionally, all

members will be required to have some expertise or knowledge that will

be useful to a council's deliberations.

The Department agrees that representatives of other Federal

agencies should not be members of the RACs. Other Federal agencies are

normally consulted about issues that affect them through other formal

processes and do not need to be provided access through the RAC

structure. However, under FACA, each council must have one ``designated

Federal official'' present at each meeting. State agencies are a

different matter. While it is true that BLM will coordinate on many

issues with State agencies, nevertheless the Department believes it

will be useful, in some cases and depending on local circumstances, to

include State employees on the RACs. However, in the final rule, the

Department has revised the discussion of the third group to limit

participation of State employees to representatives of State agencies

responsible for managing land, natural resources, or water.

The Department believes that the requirement to have broad

representation from the three groups specified in this section of the

final rule is a reasonably specific provision. It is not feasible to

specify in more detail exactly what types of persons should be selected

to ensure such representation. That is a decision that will have to be

made on a case-by-case basis, depending on the nature of the population

in an area covered by a RAC, and on the specific types of interest

groups present in that area. The Secretary, based in part on

nominations from the Governors, will strive to ensure that each RAC is

fairly representative of those groups. Certainly, in many cases, tribal

representatives should--and will--be included on the councils. The

provisions of this section of the final rule allow inclusion of mining,

timber, and other interests. However, this section deals specifically

with the RACs that will be formed to provide advice on the public lands

grazing program, and it is not appropriate to specify requirements

related to the mining or timber industries here.

The Department does not agree that lending institutions should be

specified as a group to be represented on all RACs. Of course, persons

from such institutions could serve on the councils as representatives

of the local public, local elected officials, or other interests listed

in this section of the final rule. Similarly, academicians are listed

as possible members because of their ability to contribute to technical

discussion of rangeland issues. Theref

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