[Federal Register Volume 87, Number 111 (Thursday, June 9, 2022)]
[Rules and Regulations]
[Pages 35097-35104]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-12453]



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DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Part 222

RIN 0596-AD45


Assessing Fees for Excess and Unauthorized Grazing

AGENCY: Forest Service, Agriculture (USDA).

ACTION: Final rule.

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SUMMARY: The Forest Service (Agency), U.S. Department of Agriculture, 
hereby adopts this final rule to amend existing regulations for the 
provision of an option to waive excess and unauthorized grazing fees 
when excess or unauthorized grazing is determined to be a result of 
unforeseen or uncontrollable circumstances. This standard is consistent 
with the practices of the U.S. Department of the Interior, Bureau of 
Land Management, as recommended by the Government Accountability Office 
(GAO) in its July 2016 report to the Committee on Natural Resources, 
House of Representatives, Unauthorized Grazing, Actions Needed to 
Improve Tracking and Deterrence Efforts.

DATES: This rule is effective August 8, 2022.

FOR FURTHER INFORMATION CONTACT: David Lytle, Director, Forest and 
Rangeland Management and Vegetation Ecology, 928-419-7738, 
<a href="/cdn-cgi/l/email-protection#90d4f1e6f9f4bedce9e4fcf5d0e5e3f4f1bef7ffe6"><span class="__cf_email__" data-cfemail="d591b4a3bcb1fb99aca1b9b095a0a6b1b4fbb2baa3">[email protected]</span></a>. Individuals who use telecommunication devices for 
the deaf/hard-of-hearing (TDD) may call the Federal Relay Service (FRS) 
at 1-800-877-8339, 24 hours a day, every day of the year, including 
holidays.

SUPPLEMENTARY INFORMATION:

Background

    The Forest Service manages National Forest System (NFS) lands that 
provide forage for domestic livestock grazing. The Forest Service's 
authority to regulate livestock grazing comes from the Organic 
Administration Act of 1897, as amended (16 U.S.C. 551). The Forest 
Service first introduced regulations requiring grazing permits and 
imposing fees for grazing on the forest reserves, and later the 
national forests, in 1906. The Forest Service managed grazing under its 
general authorities until 1950, when Congress enacted the Granger-Thye 
Act (16 U.S.C. 580l), specifically authorizing the Secretary of 
Agriculture to issue grazing permits on NFS lands and other lands 
administered by the U.S Department of Agriculture. The Forest Service 
permits the occupancy and use of NFS lands by domestic livestock 
through grazing and livestock use permits in accordance with the 
regulations at 36 CFR part 222. Pursuant to 36 CFR 222.50(a), the 
Agency is required to charge fees ``for all livestock grazing or 
livestock use of National Forest System lands, or other lands under 
Forest Service control.''
    Congress asked the Government Accountability Office (GAO) to 
examine what is known about the frequency and extent of unauthorized 
grazing on Federal lands and its effects. This examination included a 
review of the Bureau of Land Management (BLM) and Forest Service 
efforts to detect, deter, and resolve unauthorized grazing.
    In July 2016, GAO issued a Report to the Committee on Natural 
Resources, House of Representatives, Unauthorized Grazing, Actions 
Needed to Improve Tracking and Deterrence Efforts (GAO-16-559). In the 
report, the GAO found that the frequency and extent of unauthorized 
grazing on NFS lands is largely unknown because according to Agency 
officials, the Agency handles most incidents informally (for example, 
with a telephone call) and does not document them. The incidents that 
were documented involved formal action taken by the Agency rangeland 
management program or law enforcement staff, such as issuance of a 
Notice of Non-Compliance and/or a Bill for Collection.
    The GAO recommended that the Forest Service record all incidents of 
unauthorized grazing, including those resolved informally, as well as 
revise the excess and unauthorized grazing penalty structure to reflect 
the commercial value of forage. The Agency is responding to these two 
recommendations, but not as a part of this rulemaking process. Instead, 
the Agency has developed direction for implementing these two 
recommendations in the proposed Forest Service Manual and Handbook for 
Rangeland Management, which was released for public review and comment 
on December 18, 2020, for a 60-day comment period and extended for an 
additional 60-day comment period, ending April 17, 2021. (85 FR 82432, 
86 FR 9048).
    The GAO report also recommended the Forest Service either amend the 
regulations to allow the option to resolve excess and unauthorized 
grazing use without charging fees in some instances or follow the 
existing regulations by determining and charging a grazing use penalty 
for all unauthorized and excess use. Given the vast amount of land 
covered, and the wide array of natural and unnatural events that may 
occur across a variety of landscapes, the Agency believes it is 
important to have reasonable flexibility that allows for a commonsense 
approach to resolving certain instances of excess and unauthorized 
grazing use. In limited circumstances, when the use occurs because of 
unforeseen or uncontrollable circumstances, having the ability to waive 
excess and unauthorized grazing use fees will help to quickly resolve 
the issue while maintaining cooperative relationships. Therefore, the 
Forest Service amends its regulations at 36 CFR 222.50(h) to include an 
option for waiving the excess and unauthorized use fees when excess or 
unauthorized grazing use is a result of unforeseen or uncontrollable 
circumstances and meets all three conditions identified in the rule. 
Per the regulations at 36 CFR 261.2, unauthorized livestock are defined 
as livestock which are not authorized to be upon the land on which the 
livestock are located, and which is not related to use authorized by a 
grazing permit. ``Excess livestock'' are defined as livestock owned by 
the holder of a National Forest System grazing permit, but grazing on 
NFS lands in greater numbers, or at times or places other than 
permitted in Part 1 of the grazing permit or authorized on the annual 
Bill for Collection (FSM 2230.5).
    On November 2, 2020, the Agency published a proposed rule (85 FR 
69303) to revise 36 CFR 222.1(b) to add definitions of ``non-
permittee'' and ``non-willful,'' to remove the numbering of definitions 
in that section (36 CFR 222.1(b)) and revise 36 CFR 222.50(h) to 
provide an option for nonmonetary settlement for excess or unauthorized 
grazing use. Following a 30-day comment period, the Agency received 33 
unique, individual comments in response to the proposed rule. Most of 
the unique comments expressed support for the Agency's effort to 
provide an option to resolve excess and unauthorized grazing use cases 
without charging fees when the grazing use was at no fault of the 
livestock owner, while some commenters expressed confusion or concern 
regarding terms and statements, such as ``nonmonetary settlement,'' 
``non-willful,'' and ``in the interest of the United States.'' A 
detailed summary of comments on the proposed rule and the Agency's 
responses, including changes made to the final rule language, is set 
forth below.

Summary of the Final Rule

    The final rule carries forward the proposed amendments in the 
definitions section at 36 CFR 222.1(b), adopting the definition of 
``non-permittee,'' as well as

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restating the definitions section to remove the numbering and update 
the formatting to be consistent with the Federal Register Document 
Drafting Handbook (August 2018 Edition, Revision 1.1 dated August 9, 
2019; National Archives and Records Administration). Minor grammatical 
and technical edits were also made.
    The final rule does not add a definition for ``non-willful'', nor 
does it use that term in revised 36 CFR 222.50(h). The proposed rule 
used and defined the term ``non-willful'' as ``an action which is 
inadvertent or accidental, and not due to gross negligence.'' Several 
commenters expressed views that by using the term ``non-willful'', the 
Forest Service was implying a requirement that a determination of 
intent be made. The Forest Service agrees; therefore, we do not propose 
to require a determination of intent for the excess or unauthorized 
grazing use. Accordingly, to avoid confusion, the term ``non-willful'' 
has been removed in the final rule at 36 CFR 222.50(h) and is no longer 
in the definitions section at 36 CFR 222.1(b). It is replaced with the 
terms ``unforeseen'' and ``uncontrollable'' in the final rule to 
describe the circumstances for when excess or unauthorized use can be 
considered for a fee waiver. The terms ``unforeseen'' and 
``uncontrollable'' are not added to the definitions section in the 
final rule, and the ordinary meaning of these terms shall apply. The 
Forest Service authorized officer will have the discretion to decide 
when a circumstance leading to unauthorized grazing was unforeseen or 
uncontrollable.
    The final rule also does not use the term ``non-monetary'', which 
the proposed rule used to characterize the action of not charging fees 
for excess and unauthorized grazing use that was considered non-
willful. Commenters expressed confusion over the term ``non-monetary 
settlement'' and exactly what it meant. Some commenters expressed views 
that fees should be charged for all grazing use. To clarify intent in 
the final rule, the term ``non-monetary settlement'' has been replaced 
with language allowing an option to ``waive'' the fees. The option to 
waive the fees is intended to make the rule clear and concise such that 
all excess and unauthorized grazing use shall be charged unless the 
specific conditions set forth in the regulation are met, at which time 
the authorized officer may then decide to ``waive'' the excess or 
unauthorized grazing use fees. The only instances of excess and 
unauthorized use where a waiver of excess or unauthorized grazing use 
fees may be considered are those instances that occur after this rule 
has become effective.
    The final rule carries forward the proposed amendment to 36 CFR 
222.50(h) to provide the authorized officer an option to waive the 
excess or unauthorized grazing use fees when the use is a result of 
unforeseen or uncontrollable circumstances, and when certain conditions 
set forth in the regulation are met.
    The final rule carries forward the removal of the reference in the 
current regulation to the fee being adjusted by the same indexes used 
to adjust the regular fee, as well as the removal of the reference to 
an unvalidated permit and replaces it with the four most common 
situations in which the Forest Service encounters excess or 
unauthorized use.
    There were a few commenters who expressed views that the Agency was 
proposing to not charge for any excess and unauthorized grazing use. 
Therefore, language has been added to the final rule to highlight the 
relationship to 36 CFR 222.50(a) and make it clear that a grazing fee 
shall be charged for all grazing use. As always, the exact rate applied 
to the grazing use depends on whether such use is authorized or not. 
Title 36 CFR 222.51, 222.52, 222.53, and 222.54 describe the grazing 
fees charged for authorized grazing use and are not affected by this 
rulemaking. The excess and unauthorized use rate is applied to all 
grazing use made without authorization, which is described within 36 
CFR 222.50(h). The final rule allows the option to waive the excess and 
unauthorized grazing use fee when the use was a result of unforeseen or 
uncontrollable circumstances and all three of the specified conditions 
set forth in the regulation at 36 CFR 222.50(h) are met.
    Commenters expressed concern that the permittee or non-permittee 
would not be contacted or that they would not be required to take 
corrective action relative to excess or unauthorized use. Therefore, 
the final rule language was updated to make it clear that livestock 
would have to be removed by the permittee or non-permittee within the 
timeframe required by the authorized officer. The clarification was 
added to the first condition of the criteria that is required to be met 
before a line officer can consider a waiver of fees for excess or 
unauthorized use. This change is also warranted as the Agency would be 
unable to determine if conditions #2 and #3 of the criteria have been 
met if the livestock remains on NFS lands.
    Commenters expressed concern and confusion over condition #4 of the 
criteria as presented in the proposed rule. Some commenters felt that 
it is never in the interest of the United States to allow excess and 
unauthorized use to occur free of charge, while other commenters felt 
that condition #4 allowed for too much discretion and would result in 
inconsistency across the Agency. Due to the comments received and 
internal Agency discussion of a similar nature, condition #4 of the 
criteria was removed to facilitate the clear and consistent 
implementation of the rule.
    Some commenters expressed concern about using the terms 
``significant'' in condition #2 and ``significantly'' in condition #3 
of the criteria. The basis of the concern is related to how 
``significance'' would be determined on the ground in each excess and 
unauthorized use case. For the purposes of the final rule, the meaning 
of the terms ``significant'' and ``significantly'' are unrelated to the 
terms as used in the context of the National Environmental Policy Act 
of 1969. Instead, the Forest Service uses the term ``significant'' in 
condition #2 in the ordinary meaning of the word to help field staff 
differentiate between a use level that is undetectable or slightly used 
versus a level that exceeds grazing standards that are common for the 
area. The level of forage use that could be considered significant will 
vary across the National Forest System lands because different resource 
conditions exist across those lands at any given time. The Forest 
Service authorized officer will consider the site-specific conditions 
to inform the decision as to whether the amount of forage consumed as a 
result of excess or unauthorized grazing was significant.
    The term ``significantly'' is used in condition #3 of the criteria 
to help field staff differentiate between levels of impacts resulting 
from excess or unauthorized use. The term is used in the ordinary sense 
or meaning of the word to allow Forest Service personnel to 
differentiate between impacts that are undetectable or minor in nature 
where no restoration or intervention efforts are needed versus impacts 
that impair the management and viability of the area, creating a 
situation where rehabilitation or intervention is needed, or other 
management options need to be employed.

Comments on the Proposal

General Comments

    Comments expressed a wide range of opinions--both strongly for and 
against--the proposed rule. Comments expressing support for the 
proposed rule stated that it was a fair means to deal

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with excess and unauthorized use that was a result of circumstances 
beyond the livestock owner's control, or otherwise due to unforeseen or 
uncontrollable circumstances. Other comments, however, opposed various 
provisions of the proposed rule, expressing concern that the revisions 
could: (1) reward intentional bad behavior; (2) result in increased 
overgrazing and greater resource damage; (3) result in increasing 
excess and unauthorized use; (4) result in less incident documentation.
    Response: The Agency notes the general comments in support of or in 
opposition to the rule. The Agency has carefully considered the input 
from the public, other government entities, and Tribes and has made 
several adjustments to the final rule to address the concerns described 
above. These changes are described in more detail below and include, 
for example, changing the terminology from ``non-monetary settlement'' 
to an option to ``waive'' the excess and unauthorized use fees. 
Throughout the rulemaking process, the Agency's goal has been to 
develop a final rule that enables the Agency to have an option to not 
charge for excess and unauthorized use when it is minimal and due to 
unforeseen or uncontrollable circumstances and not due to negligence of 
the livestock owner. The final rule achieves this goal and is 
consistent with the practices of the Bureau of Land Management and 
recommendations of the GAO July 2016 report.
    The Agency's final rule does not eliminate or modify the existing 
policy to charge for all grazing use, to possibly take administrative 
action against a grazing permit, or to apply the penalties at 36 CFR 
part 261. Instead, it adds the option to waive the excess and 
unauthorized use fees when the use was due to unforeseen and 
uncontrollable circumstances and the three criteria in the final rule 
are met. Further, the Agency will continue to comply with the 
requirements of all applicable laws and regulations and continue to 
document and charge for all livestock grazing use and may waive the 
associated fees under limited circumstances when all the required 
criteria are met.
    The three required criteria that must be met are: (1) The excess or 
unauthorized use was a result of unforeseen or uncontrollable 
circumstances on behalf of the permittee or non-permittee and the 
livestock associated with such use were removed by the permittee or 
non-permittee within the timeframe required by the authorized officer; 
(2) The forage consumed by the excess or unauthorized use is not 
significant; and (3) National Forest System lands have not been damaged 
significantly by the excess or unauthorized use.
    Criterion #1 (so long as criterions 2 and 3 are also met) will 
isolate the excess or unauthorized livestock use to the single 
unforeseen or uncontrollable event.
    Criterion #2 will ensure that forage use made during the excess or 
unauthorized use is considered. It will help field staff differentiate 
between a use level that is undetectable or slightly used versus a 
level that exceeds grazing standards that are common for the area to 
determine if a fee waiver may be an available option or not (so long as 
criterions 1 and 3 are also met).
    Criterion #3 will ensure that the excess or unauthorized livestock 
use did not damage other aspects of the National Forest System lands. 
It is intended to allow staff to differentiate between impacts that are 
undetectable or minor in nature where no restoration or intervention 
efforts are needed versus impacts that impair the management and 
viability of the area, creating a situation where rehabilitation or 
intervention is needed, or other management options need to be 
employed. This criterion along with criterions 1 and 2 are intended to 
act in concert when reviewing the site-specific information to 
determine if the waiver of the excess and unauthorized use fee would be 
appropriate.
    Comment: Some commenters suggest that there is a need to require 
direction to record all incidents of excess and unauthorized grazing 
use.
    Response: The U.S. Forest Service has determined the development of 
policy to document all occurrences of excess and unauthorized grazing 
use was best resolved through internal administrative direction. 
Therefore, in April 2019, the Washington, DC office sent a letter to 
the Regional Foresters, directing documentation and billing for all 
cases of excess and unauthorized grazing use that equals or is greater 
than one head month of use. All documentation is to be filed in the 
2230 grazing permit files and database for excess use and is to be 
documented and resolved in cooperation with law enforcement personnel 
for unauthorized use. The final rule provides an option for waiver of 
excess or unauthorized use fees when excess and unauthorized grazing 
use is due to unforeseen or uncontrollable circumstances, and cases 
will continue to be documented in the 2230 grazing permit files and 
database, even if no excess or unauthorized use fees were charged.
    In December 2020, the U.S. Forest Service released the proposed 
rangeland management directives (Forest Service Manual (FSM) 2200 and 
Forest Service Handbook (FSH) 2209.13 and 2209.16). The proposed 
rangeland management directives include updated requirements and 
direction for documenting all excess and unauthorized grazing use and 
working with the livestock owner to resolve the incident. A checklist 
has been developed to be included as an exhibit in the final 
directives. The exhibit will serve as an example of how to document 
occurrences of excess and unauthorized use and if the three criteria 
have been met to allow the authorized officer the option to waive the 
fees. Future updates to the Rangeland Information Management System 
database are being considered to further aid in tracking and future 
reporting of excess and unauthorized grazing use and any waivers of 
associated fees.
    Comment: Some commenters suggest the Forest Service comply with the 
existing regulations instead of amending regulations to allow for not 
charging an excess and unauthorized use fee.
    Response: The GAO report recommended the Forest Service either 
amend the regulations to allow the option to resolve excess and 
unauthorized grazing use without charging fees in some instances or 
follow the existing regulations by determining and charging a grazing 
use penalty for all unauthorized and excess use. Given the vast amount 
of land covered, and the wide array of natural and unnatural events 
that may occur across a variety of landscapes, the Agency believes it 
is important to have reasonable flexibility which allows for a 
commonsense approach to resolving certain instances of excess and 
unauthorized grazing use. In limited circumstances, when the use occurs 
because of unforeseen or uncontrollable circumstances, having the 
ability to waive excess and unauthorized grazing use fees will help to 
quickly resolve the issue while maintaining cooperative relationships. 
Therefore, the Forest Service amends its regulations at 36 CFR 
222.50(h) to include an option for waiving the excess and unauthorized 
use fees when excess or unauthorized grazing use is a result of 
unforeseen or uncontrollable circumstances and meets all three 
conditions identified in the rule.
    Comment: Some commenters requested that the excess and unauthorized 
grazing penalty structure be revised, and fees increased to better 
deter excess and unauthorized grazing use.

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    Response: The U.S. Forest Service determined that the issue of 
revising the excess and unauthorized grazing fee was best resolved 
through internal administrative direction. The grazing penalty 
structure is addressed administratively through revision of the Forest 
Service Handbook (FSH) 2209.13 which was published December 18, 2020, 
for public comment (85 FR 82432). The FSH provides direction for 
calculating and assessing the annual excess and unauthorized grazing 
use fees. The proposed FSH 2209.13 includes updates to the excess and 
unauthorized use rate which reflect the commercial value of forage.
    Comment: Some commenters suggested avoiding the term ``non-
willful'' or better define the term and differentiate between ``non-
willful'' and ``willful''.
    Response: The U.S. Forest Service is no longer including the term 
``non-willful'' within the rule language and the definitions section as 
finalized, thus eliminating confusion over any perceived requirement to 
assess the intent of the livestock owner. Instead, the terms unforeseen 
and uncontrollable are used within criteria #1 to better articulate 
what circumstances must exist for the authorized officer to consider 
waiving excess and unauthorized grazing use fees.
    The Forest Service will rely upon the ordinary meaning of the terms 
unforeseen and uncontrollable. As defined by the Oxford Languages 
Dictionary, unforeseen is an adjective meaning ``not anticipated or 
predicted'', ``unplanned'', ``unexpected''. As defined by the Oxford 
Languages Dictionary, uncontrollable is an adjective meaning ``not 
controllable'', ``out of control'', ``unmanageable''.
    It is the livestock owner's responsibility to keep livestock off 
National Forest System lands when they are not permitted and authorized 
to make use of those lands. However, there are circumstances that occur 
beyond the control of the livestock owner that cannot be predicted. For 
example, when a predator attacks a band of sheep causing the sheep to 
scatter and move outside the authorized routing pattern or allotment 
area. This example demonstrates how the predation event caused the 
sheep to be in areas that were not authorized, resulting in excess use. 
The predator attack was unforeseen and uncontrollable by the permittee 
and the Forest Service.
    Another example would be when an automobile accident occurs and 
damages a private landowner's fence. The private landowner's llamas get 
out and are grazing on National Forest System lands. This example 
demonstrates how the automobile accident damaged the fence, allowing 
the llamas to get out and graze on National Forest System lands, 
resulting in unauthorized use. The automobile accident was unforeseen 
and uncontrollable by the landowner and the Forest Service.
    The terms unforeseen or uncontrollable are intended to strike a 
balance between providing the Forest Service reasonable flexibility 
when those types of situations arise while also ensuring undesirable 
behavior and/or repeat instances of excess and unauthorized use are 
addressed to reform the behavior and deter any future instances.
    Comment: Some commenters suggested that the rule should not apply 
to National Grasslands or grazing associations because grazing 
associations are issued grazing agreements (which the commenter 
suggested are not a type of term grazing permit). They suggested the 
rule is not consistent with the Bankhead-Jones Farm Tenant Act of 1937 
or that a specific rule should be written that describes how grazing 
associations would apply the rule when managing their members.
    Response: Authority for managing the National Grasslands comes from 
Title III of the Bankhead-Jones Farm Tenant Act (BJFTA) of 1937, as 
amended. The portions of Title III that are most applicable are found 
in Sections 31 (7 U.S.C. 1010) and 32(b) and (f) (7 U.S.C. 1011). In 
these provisions, the Secretary of Agriculture was granted authority 
``[t]o make such rules and regulations as he deems necessary to prevent 
trespasses and otherwise regulate the use and occupancy of property 
acquired by, or transferred to, the Secretary for the purposes of this 
subchapter, in order to conserve and utilize it or advance the purposes 
of this subchapter'' (7 U.S.C. 1011(f)). This includes the regulations 
found in 36 CFR part 222.
    National Grasslands are part of the National Forest System per 
Section 10 of the Forest and Rangeland Renewable Resources Planning Act 
of 1974 (16 U.S.C. 1609). Management of the National Grasslands as part 
of the National Forest System must be conducted in a manner that is 
consistent with the regulations that apply to National Forest System 
lands which does include the revised regulations resulting from this 
final rulemaking.
    Regarding the comment that ``a specific rule should be written that 
describes how grazing associations would apply the rule when managing 
their members,'' a separate rule specific to National Grasslands is not 
needed. As stated above, the management of the National Grasslands as 
part of the National Forest System must be conducted in a manner that 
is consistent with the regulations that apply to all National Forest 
System lands. The Forest Service enters into grazing agreements with 
grazing associations which are a type of term grazing permit (36 CFR 
222.3(c)(1)). The Forest Service applies law, regulation and policy to 
the association when administering the grazing agreement. The grazing 
associations are then responsible for managing their members' livestock 
grazing on the lands identified in the grazing agreement. How a grazing 
association manages its members is articulated in the association's 
rules of management (ROM). There may be times where an association's 
ROM might be more restrictive than Federal law, regulation, or Forest 
Service policy and/or procedure, but they cannot be less restrictive. 
This includes the revised regulations related to excess grazing use 
resulting from this final rulemaking. This means that grazing 
associations are accountable to the Forest Service for any excess use 
made by their members, and the Forest Service may waive the fee for the 
association if all three conditions are met. Alternatively, if any of 
the criteria are not met, then the Forest Service will charge the 
association for the grazing use.
    There are some allotments where direct permittees and grazing 
associations are authorized to graze livestock in common. In those 
instances, the Forest Service will apply this rule to all parties 
holding grazing permits, whether they are direct grazing permits or 
grazing permits in the form of a grazing agreement.

Regulatory Certifications

Regulatory Planning and Review

    For rules designated as significant by the Office of Information 
and Regulatory Affairs (OIRA) in the Office of Management and Budget, 
Executive Order (E.O.) 12866, as supplemented by E.O. 13563, directs 
agencies to conduct a regulatory impact analysis, including an 
assessment of costs and benefits (i.e., cost-benefit analysis) of the 
regulatory action and its alternatives, and select regulatory 
approaches that maximize net benefits to both the Government and the 
public regarding economic impacts, the environment, public health and 
safety, distributive impacts, and equity considerations.
    Executive Order 13563 emphasizes the importance of quantifying both 
costs

[[Page 35101]]

and benefits, of reduced costs, of harmonized rules, and of promoting 
flexibility. Analysis is required to assess both the costs and benefits 
of the intended regulation, recognizing quantifiable analysis is not 
always possible, but that a reasoned determination be made that the 
benefits justify the regulatory costs. The final rule has been 
determined to be significant for the purposes of Executive Order 12866, 
and therefore, has been reviewed by the Office of Management and 
Budget.
    Costs and benefits can accrue to ranchers, private industry, the 
agency, and to the public. Generally, industry could benefit from fewer 
penalty fees for excess and unauthorized use determined to meet the 
three circumstances identified in the rule. The agency could benefit 
from less time and resources spent assessing and collecting the penalty 
fees.
    The Agency conducted a regulatory impact analysis for the final 
rule to amend existing regulations to allow for excess and unauthorized 
grazing fees to be waived if the use is a result of ``unforeseen'' or 
``uncontrollable'' circumstances, a departure from existing policy 
which doesn't formally allow for such considerations (36 CFR part 222, 
subpart C). This analysis considers costs and benefits to the agency 
(Government), livestock operators, and the public.
    The regulatory impact analysis compares impacts between the current 
and final rules. Savings to industry are minimal but seen as a benefit. 
The savings are estimated from an average cost of fees assessed 
multiplied by the average number of excess or unauthorized use cases 
eligible for fee waivers per year. To determine the anticipated number 
of excess or unauthorized use cases eligible for fee waivers under the 
final rule, the agency used data from 2017 to 2020 on the number of 
livestock, the duration the livestock were on National Forest System 
lands, and the total amount of head months associated with the excess 
or unauthorized use cases.
    The cost-benefit analysis identifies the potential economic costs 
and benefits associated with the final rule. Changes in benefits and 
cost savings result from (1) waived fees for excess and unauthorized 
use and (2) associated changes in processing times for the waivers and 
fees. Baseline conditions are equal to operations under existing 
regulations and policy.
    While the regulations set forth in 36 CFR part 222 apply to all 
National Forest System land, a review of grazing records from the last 
four years show that permit-holders and land managers in the western 
United States would be most impacted by the rule change. In 2020 alone, 
authorized livestock in the Forest Service's Northern (Region 1), Rocky 
Mountain (Region 2), Southwestern (Region 3), and Intermountain (Region 
4) regions accounted for 88 percent of total authorized use on National 
Forest System lands. These regions encompass the states of Arizona, 
Colorado, Idaho, Montana, Nebraska, Nevada, New Mexico, North Dakota, 
South Dakota, Utah, and Wyoming. Though excess and unauthorized use can 
occur on any National Forest System lands, by permittees and non-
permittees, it is important to understand the magnitude of grazing and 
distribution across the land. The rule is not expected to change the 
production of forage or livestock; therefore, economic impacts from 
grazing on National Forest System lands are not expected to change. We 
do not expect the excess or unauthorized use to change, only the 
penalties would change for those uses that meet the conditions to have 
the fees waived.
    It is unlikely the rule will adversely affect the natural resources 
or visiting public, as a condition for the rule to apply is that ``the 
forage consumed by the excess or unauthorized use was not significant, 
and National Forest System lands had not been damaged significantly by 
the excess or unauthorized use.''
    Under baseline conditions, the cost is the time for industry and 
the agency to process bills for collection from excess or unauthorized 
use. Each reported case of excess or unauthorized use requires a bill 
for collection to be processed. In addition to the billing and 
collection, Forest Service staff also need to assess the damage and 
determine the extent of the bill.
    Overall, we do not expect costs to industry, the agency, or the 
public from the final rule. The time to process each bill for 
collection will not change. The costs will likely be lower than the 
baseline condition because less time would be spent overall on bills 
for collection because some cases could have fees waived.
    As a whole, the agency believes that, though benefits have not been 
monetized, the rule will have positive net benefits due to the improved 
relationships and more timely resolution of excess and unauthorized use 
to minimize resource damage.

Energy Effects

    The USDA has considered the final rule in the context of Executive 
Order 13211, Actions Concerning Regulations That Significantly Affect 
Energy Supply, Distribution, or Use, issued May 18, 2001. The USDA has 
determined the final rule does not constitute a significant energy 
action as defined in Executive Order 13211. Therefore, a statement of 
energy effects is not required.

E-Government Act

    The USDA is committed to complying with the E-Government Act, to 
promote the use of the internet and other information technologies to 
provide increased opportunities for citizen access to government 
information and services, and for other purposes.

Civil Rights Impact Analysis

    A Civil Rights Impact Analysis (CRIA) was conducted in accordance 
with USDA Departmental Regulation (DR) 4300-4, to determine if the 
implementation of the final rule would have disproportionate effects or 
adverse impacts on employees or program beneficiaries, because of 
membership in protected groups identified in USDA DR 4300-4 (regarding 
Civil Rights) and DR 5600-002 (regarding Environmental Justice), 
particularly women, ethnic and racial minorities, and people with 
disabilities. The final rule has been analyzed to ensure compliance 
with USDA's DR 4300-4, and it is determined that no adverse impacts on 
protected groups are expected as a result of the implementation of the 
final rule.

Congressional Review Act

    Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), 
OIRA has designated this final rule as `not a major rule' as defined by 
5 U.S.C. 804(2).

National Environmental Policy Act

    The final rule would provide an option for the authorized officer 
to waive the excess or unauthorized grazing use fee when the use met 
the following criteria: (1) the excess or unauthorized use was a result 
of unforeseen or uncontrollable circumstances on behalf of the 
permittee or non-permittee and the livestock associated with such use 
were removed by the permittee or non-permittee within the timeframe 
required by the authorized officer; (2) the forage consumed by the 
excess or unauthorized use is not significant; and (3) National Forest 
System lands have not been damaged significantly by the excess or 
unauthorized use. Agency regulations at 36 CFR 220.6(d)(2) exclude from 
documentation in an environmental assessment or environmental impact 
statement, as well as in a decision memo, rules,

[[Page 35102]]

regulations, or policies to establish Service-wide administrative 
procedures, program processes, or instructions. The amendment to 
Sec. Sec.  222.50(h) and 222.1(b) addresses the penalty for excess and 
unauthorized grazing actions taken on National Forest System land and 
provides a definition for a term used in the amended language. The 
final language removes reference to an unvalidated permit and replaces 
it with the four most common situations that the Forest Service 
considers excess or unauthorized use, which is not intended to be an 
exclusive list. This final rule fits within this category because it is 
a service-wide administrative action regulating financial policy and 
fees limited to determination of waiver of excess or unauthorized use 
fees. Moreover, an administrative action that regulates financial 
policy and waiver of fees in a limited situation is not authorizing any 
ground disturbing activities, nor is it authorizing any activities in 
areas where there are extraordinary circumstances that exist per 36 CFR 
220.6(b). Thus, the Agency has concluded that the final rule falls 
within this category of actions and that no extraordinary circumstances 
exist which would require the preparation of an environmental 
assessment or environmental impact statement.

Regulatory Flexibility Act Analysis

    The Regulatory Flexibility Act (RFA) requires the agency to 
``prepare and make available for public comment an initial regulatory 
flexibility analysis'' which will ``describe the impact of the proposed 
rule on small entities.'' (5 U.S.C. 603(a)). Section 605 of the RFA 
allows an agency to certify a rule, in lieu of preparing an analysis, 
if rulemaking is not expected to have a significant economic impact on 
a substantial number of small entities.
    A certification must include, at a minimum, a description of the 
affected entities and the impacts that clearly justify the ``no 
impact'' certification. The agency's reasoning and assumptions 
underlying its certification should be explicit to obtain meaningful 
public comment and thus receive information that would be used to re-
evaluate the certification.
    For the changes to 36 CFR part 222, subpart C, this rule affects 
permittees classified under the North American Industry Classification 
System (NAICS), as follows:

[ssquf] NAICS Code 112410, Sheep Farming
[ssquf] NAICS Code 112111 Beef Cattle Ranching and Farming

    Most Forest Service grazing permittees would be considered small 
entities under SBA standards (owner-operators, some with LLC. 
designations, and others operating under an agreement with Grazing 
Associations). The central purpose of the final rule is the flexibility 
to informally resolve excess and unauthorized grazing incidents, that 
are a result of unforeseen or uncontrollable circumstances by waiving 
the excess or unauthorized grazing penalties. Informal resolution 
involves the permittee or non-permittee removing the livestock 
following a phone call from or face-to-face conversation with the 
authorized officer. Since the excess or unauthorized grazing penalties 
would be waived, any settlement or action would be of the nonmonetary 
nature and reduce the administrative burden on livestock operators by 
allowing for a waiver of fees of a situation that would typically 
require an administrative process to resolve.
    The cost savings are due to anticipated changes in fees paid by the 
industry to the agency as a result of fee waivers for eligible cases of 
excess or unauthorized use. The cost savings are considered transfer 
payments. Cost savings, though minimal, would result from waived fees 
and reduced time assessing and processing bills. The amount of time to 
process a fee waiver and process a bill for collection would be the 
same up to the point where the Forest Service either decides to waive 
the fees or issue a bill for collection. The agency and industry are 
expected to experience cost savings from the reduced time processing 
and collecting excess and unauthorized use fees. While the cost savings 
to industry from the fee waivers would result in less government 
revenue, this is not planned government revenue that benefits the 
public. The fees are a penalty. The goal is full compliance with 
existing laws, meaning no fees assessed for excess and unauthorized 
use.
    As such, the Chief of the Forest Service certifies that this rule 
would not have a significant economic impact on a substantial number of 
small entities as defined by the Regulatory Flexibility Act.

Federalism

    The Agency has considered the final rule under the requirements of 
E.O. 13132, Federalism. The Agency has determined that the final rule 
conforms with the federalism principles set out in this executive 
order; would not impose any compliance costs on the states; and would 
not have substantial direct effects on the States, on the relationship 
between the Federal government and the states, or on the distribution 
of power and responsibilities among the various levels of government. 
Therefore, the Agency has concluded that the final rule does not have 
federalism implications.

Consultation and Coordination With Indian Tribal Governments

    The Forest Service considered this final rule in compliance with 
E.O. 13175, Consultation and Coordination with Indian Tribal 
Governments. On October 30, 2020, the agency initiated a 120-day 
consultation period. While consultation was ongoing, the comment period 
for this rule concluded on February 27, 2021. The Forest Service also 
considered input from Tribes received after this period. Two federally 
recognized Tribes accepted the invitation to consult and submitted 
written material on the rule.
    One Tribe expressed support for the proposed rule, and one Tribe 
expressed concern that the rule would encourage excessive damage and 
degradation to our fragile ecosystems.
    In response, the Forest Service maintains and reiterates its 
commitment to charge for all grazing use and enforce its grazing 
regulations. The final rule is of limited scope and amends the Forest 
Service grazing regulation to merely provide the authorized officer an 
option to waive the excess and unauthorized use fee only if all 3 
criteria within the regulation are met. Of particular applicability is 
criteria #3 which requires that only those instances of excess or 
unauthorized use that did not significantly damage National Forest 
System lands could be considered for a waiver. All other instances 
would be charged for along with other administrative actions or 
penalties depending upon the circumstances.
    The Agency acknowledges that it shares a government-to-government 
relationship with Tribes that differs from its relationship with the 
general public. The final rule does not change the Forest Service's 
Tribal consultation obligations.

No Takings Implications

    The Agency has analyzed the final rule in accordance with the 
principles and criteria in E.O. 12630, Governmental Actions and 
Interference with Constitutionally Protected Property Rights. The 
Agency has determined that the final rule would not pose the risk of a 
taking of private property.

Civil Justice Reform

    The Forest Service has analyzed the final rule in accordance with 
the principles and criteria in E.O. 12988, Civil Justice Reform. The 
Agency has

[[Page 35103]]

not identified any State or local laws or regulations that conflict 
with this regulation or that would impede full implementation of this 
rule. Nevertheless, if such conflicts were to be identified, the final 
rule will preempt the State or local laws or regulations that are found 
to be in conflict. However, in the case of such conflict, (1) no 
retroactive effect will be given to this final rule; and (2) USDA will 
not require the use of administrative proceedings before parties could 
file suit in court challenging its provisions.

Unfunded Mandates Reform Act

    Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2 
U.S.C. 1531-1538), signed into law on March 22, 1995, the Agency has 
assessed the effects of the final rule on State, local, and Tribal 
governments and the private sector. The final rule would not compel the 
expenditure of $100 million or more by any State, local, or Tribal 
government or anyone in the private sector. Therefore, a statement 
under section 202 of the Act is not required.

Controlling Paperwork Burdens on the Public

    The final rule does not contain any recordkeeping or reporting 
requirements or other information collection requirements as defined in 
5 CFR part 1320 that are not already required by law or not already 
approved for use. Accordingly, the review provisions of the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.) and its implementing 
regulations at 5 CFR part 1320 do not apply.

List of Subjects in 36 CFR Part 222

    Grazing and Livestock Use on the National Forest System, Mediation 
of Term Grazing Permit Disputes, Grazing Fees, Management of Wild Free-
Roaming Horses and Burros.

    Therefore, for the reasons set forth in the preamble, part 222, 
subparts A and C, of title 36 of the Code of Federal Regulations is 
amended as follows:

PART 222--RANGE MANAGEMENT

Subpart A--Grazing and Livestock Use on the National Forest System

0
1. Revise the authority citation for subpart A to read as follows:

    Authority:  92 Stat. 1803, as amended (43 U.S.C. 1901), 85 Stat. 
649, as amended (16 U.S.C. 1331-1340); sec. 1, 30 Stat. 35, as 
amended (16 U.S.C. 551); sec. 32, 50 Stat. 522, as amended (7 U.S.C. 
1011).


0
2. In Sec.  222.1, revise paragraph (b) to read as follows:


Sec.  222.1  Authority and definitions.

* * * * *
    (b) Definitions.
    Allotment means a designated area of land available for livestock 
grazing.
    Allotment management plan means a document that specifies the 
program of action designated to reach a given set of objectives. It is 
prepared in consultation with the permittee(s) involved and:
    (i) Prescribes the manner in and extent to which livestock 
operations will be conducted in order to meet the multiple-use, 
sustained yield, economic, and other needs, and objectives as 
determined for the lands, involved; and
    (ii) Describes the type, location, ownership, and general 
specifications for the range improvements in place or to be installed 
and maintained on the lands to meet the livestock grazing and other 
objectives of land management; and
    (iii) Contains such other provisions relating to livestock grazing 
and other objectives as may be prescribed by the Chief, Forest Service, 
consistent with applicable law.
    Base property means land and improvements owned and used by the 
permittee for a farm or ranch operation and specifically designated by 
him to qualify for a term grazing permit.
    Cancel means action taken to permanently invalidate a term grazing 
permit in whole or in part.
    Grazing permit means any document authorizing livestock to use 
National Forest System or other lands under Forest Service control for 
the purpose of livestock production including:
    (i) Temporary grazing permits for grazing livestock temporarily and 
without priority for reissuance.
    (ii) Term permits for up to 10 years with priority for renewal at 
the end of the term.
    Land subject to commercial livestock grazing means National Forest 
System lands within established allotments.
    Lands within the National Forest in the 16 contiguous western 
States means lands designated as National Forest within the boundaries 
of Arizona, California, Colorado, Idaho, Kansas, Montana, Nebraska, 
Nevada, New Mexico, North Dakota, Oklahoma, Oregon, South Dakota, Utah, 
Washington, and Wyoming (National Grasslands are excluded).
    Livestock means animals of any kind kept or raised for use or 
pleasure.
    Livestock use permit means a permit issued for not to exceed one 
year where the primary use is for other than grazing livestock.
    Modify means to revise the terms and conditions of an issued 
permit.
    National Forest System lands means the National Forests, National 
Grasslands, Land Utilization Projects, and other Federal lands for 
which the Forest Service has administrative jurisdiction.
    Non-permittee means a person who owns or controls livestock and 
does not have a grazing permit to graze livestock on National Forest 
System lands.
    On-and-off grazing permits means permits with specific provisions 
on range, only part of which is National Forest System lands or other 
lands under Forest Service control.
    On-the-ground expenditure means payment of direct project costs of 
implementing an improvement or development, such as survey and design, 
equipment, labor, and material (or contract) costs, and on-the-ground 
supervision.
    Other lands under Forest Service control means non-Federal public 
and private lands over which the Forest Service has been given control 
through lease, agreement, waiver, or otherwise.
    Permittee means any person who has been issued a grazing permit.
    Permitted livestock means livestock authorized by a written permit.
    Person means any individual, partnership, corporation, association, 
organization, or other private entity, but does not include Government 
Agencies.
    Private land grazing permits means permits issued to persons who 
control grazing lands adjacent to National Forest System lands and who 
waive exclusive grazing use of these lands to the United States for the 
full period the permit is to be issued.
    Range betterment means rehabilitation, protection, and improvement 
of National Forest System lands to arrest range deterioration and 
improve forage conditions, fish and wildlife habitat, watershed 
protection, and livestock production.
    Range betterment fund means the fund established by title IV, 
section 401(b)(1), of the Federal Land Policy and Management Act of 
1976. This consists of 50 percent of all monies received by the United 
States as fees for grazing livestock on the National Forests in the 16 
contiguous western States.
    Range improvement means any activity or program designed to improve 
production of forage and includes facilities or treatments constructed 
or installed for the purpose of improving the range resource or the 
management of livestock and includes the following types:
    (i) Non-structural which are practices and treatments undertaken to 
improve range not involving construction of improvements.

[[Page 35104]]

    (ii) Structural which are improvements requiring construction or 
installation undertaken to improve the range or to facilitate 
management or to control distribution and movement of livestock.
    (A) Permanent means range improvements installed or constructed and 
become a part of the land such as: dams, ponds, pipelines, wells, 
fences, trails, seeding, etc.
    (B) Temporary means short-lived or portable improvements that can 
be removed such as: troughs, pumps and electric fences, including 
improvements at authorized places of habitation such as line camps.
    Suspend means temporary withholding of a term grazing permit 
privilege, in whole or in part.
    Term period means the period for which term permits are issued, the 
maximum of which is 10 years.
    Transportation livestock means livestock used as pack and saddle 
stock for travel on the National Forest System.

Subpart C--Grazing Fees

0
3. The authority citation for subpart C continues to read as follows:

    Authority: 16 U.S.C. 551; 31 U.S.C. 9701; 43 U.S.C. 1751, 1752, 
1901; E.O. 12548 (51 FR 5985).


0
4. In Sec.  222.50, revise paragraph (h) to read as follows:


Sec.  222.50  General procedures.

* * * * *
    (h) The excess and unauthorized grazing use rate will be determined 
by establishing a base value without giving consideration for those 
contributions normally made by the permittee under terms of the grazing 
permit. This rate is charged for unauthorized forage or forage in 
excess of authorized use and is separate from any penalties that may be 
assessed for a violation of a prohibition issued under 36 CFR part 261 
or from an administrative permit action. This rate will apply to, but 
not be limited to, the following circumstances: excess number of 
livestock grazed; livestock grazed outside the permitted grazing 
season; livestock grazed in areas not authorized under a grazing permit 
and a bill for collection; or livestock grazed without a permit. Per 
paragraph (a) of this section, a grazing fee shall be charged for each 
head month of livestock grazing or use. This includes any excess or 
unauthorized grazing use. The authorized officer may then waive 
monetary fees for excess or unauthorized grazing use only when all 
three of the following conditions are met:
    (1) The excess or unauthorized use was a result of unforeseen or 
uncontrollable circumstances on behalf of the permittee or non-
permittee, and the livestock associated with such use were removed by 
the permittee or non-permittee within the timeframe required by the 
authorized officer;
    (2) The forage consumed by the excess or unauthorized use is not 
significant; and
    (3) National Forest System lands have not been damaged 
significantly by the excess or unauthorized use.
* * * * *

    Dated: June 6, 2022.
Randy Moore,
Chief, USDA Forest Service.
[FR Doc. 2022-12453 Filed 6-8-22; 8:45 am]
BILLING CODE 3411-15-P


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