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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/fr%3A95-3866

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** February 22, 1995
- **Citation:** 60 FR 9894

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A95-3866. Public record. Not legal advice.