[Federal Register Volume 60, Number 35 (Wednesday, February 22, 1995)]
[Rules and Regulations]
[Pages 9894-9971]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-3866]




[[Page 9893]]

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Part II





Department of the Interior





_______________________________________________________________________



Office of the Secretary



Bureau of Land Management



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43 CFR Parts 4, 1780, and 4100



Department Hearings and Appeals Procedures; Cooperative Relations; 
Grazing Administration; Exclusive of Alaska; Final Rule

Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / 
Rules and Regulations 
[[Page 9894]] 

DEPARTMENT OF THE INTERIOR

Office of the Secretary

43 CFR Part 4

Bureau of Land Management

43 CFR Parts 1780 and 4100

[WO-400-1110-00 24 1A]
RIN 1004-AB89


Department Hearings and Appeals Procedures; Cooperative 
Relations; Grazing Administration--Exclusive of Alaska

AGENCY: Office of the Secretary and the Bureau of Land Management, 
Interior.

ACTION: Final rule.

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SUMMARY: This final rule amends the regulations that govern how the 
Secretary of the Interior, through the Bureau of Land Management (BLM), 
administers livestock grazing. This rule applies to all lands on which 
BLM administers livestock grazing. This rule also amends the Department 
of the Interior's appeals regulations pertaining to livestock grazing 
to provide consistency with administrative remedies provided for in the 
grazing regulations, increases public participation in the management 
of the public grazing lands, and amends the regulations on cooperative 
relations to reflect changes in the organization of certain advisory 
committees. The changes will improve the management of the Nation's 
public rangeland resources.

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

    Section 4130.8-1(d) will not be implemented until the grazing year 
beginning March 1, 1996.

ADDRESSES: Inquiries should be sent to the Director, Bureau of Land 
Management, U.S. Department of the Interior, Room 5555, Main Interior 
Building, 1849 C Street NW., Washington, DC 20240.

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

SUPPLEMENTARY INFORMATION:

I. Introduction
II. Major Elements of the Department's Program To Promote Healthy 
Rangelands
III. Summary of Rules Adopted
IV. General Comments
V. Section-by-Section Analysis and Responses to Public Comments
VI. Procedural Matters
VII. Regulatory Text

I. Introduction

    This rule governs the Bureau of Land Management's (BLM) 
administration of livestock grazing on public rangelands. The 
provisions of this rule will ensure proper administration of livestock 
grazing on the public rangelands. Many of the provisions will result in 
greater consistency between the administration of grazing on public 
rangelands by BLM and administration of grazing on National Forest 
System lands by the United States Forest Service (Forest Service). The 
rule is promulgated under the principal authorities of the Federal Land 
Policy and Management Act (FLPMA) of 1976 (43 U.S.C. 1739, 1740), and 
the Taylor Grazing Act of 1934 (TGA) (43 U.S.C. 315a-r).
    An advance notice of proposed rulemaking was published in the 
Federal Register on August 13, 1993 (58 FR 43208). A notice of intent 
to prepare an associated environmental impact statement (EIS) was also 
published in the Federal Register on July 13, 1993 (58 FR 37745). The 
Department also developed a booklet entitled Rangeland Reform '94, 
describing the Department of the Interior's (Department) proposal. 
Approximately 35,000 copies were distributed in late August and 
September of 1993 to all BLM grazing permittees and lessees, interested 
Congressional staff, and other interested parties. The Department 
received a total of about 12,600 letters from about 8,000 persons on 
the advance notice of proposed rulemaking, notice of intent to prepare 
an EIS, and the Rangeland Reform '94 summary booklet. The Department 
considered these comments in identifying and refining key components of 
the rangeland improvement effort and in preparing a proposed rule and a 
draft EIS.
    During a three-month period beginning November 17, 1993, Secretary 
of the Interior Bruce Babbitt (Secretary) met on 20 occasions around 
the West with groups that included western governors, State and local 
officials, ranchers, environmentalists and other public land users. He 
visited local groups in Colorado, Wyoming, and Oregon who were already 
engaged in addressing how land management decisions should be made, and 
participated in extensive discussion about the components of rangeland 
improvement. These meetings resulted in many productive suggestions 
that were reflected in the proposed rule. Additionally, at the 
invitation of Colorado's Governor Roy Romer, the Secretary met on nine 
separate occasions with a group of Colorado State and local officials, 
ranchers, conservationists and other land users in Denver and Gunnison, 
Colorado, for discussions regarding a process for building a consensus-
driven local approach to rangeland management. Similar meetings and 
follow-up discussions took place in Idaho, Oregon, and Nevada, in 
addition to meetings in Arizona, New Mexico, Utah and Wyoming. These 
meetings with the Secretary involved hundreds of hours of discussion.
    On March 25, 1994, the Department published proposed rules in the 
Federal Register (59 FR 14314), with a 120 day comment period to July 
28, 1994. Subsequently, at the request of commenters, the comment 
period was extended through September 9, 1994.
    On May 13, 1994, the Department published in the Federal Register 
(59 FR 25118) a notice of availability of the draft EIS. Approximately 
11,000 copies of the draft EIS were mailed to State and Federal 
legislators, western governors, major industry and environmental 
groups, the media, individuals who had commented on the advance notice 
of proposed rulemaking, and anyone else who requested a copy. All BLM 
permittees and lessees were mailed an executive summary, and provided a 
copy of the full document on request. Copies were also available 
through all BLM State Offices as well as Forest Service Regional 
Offices. The draft EIS analyzed in detail the proposed action and 
alternatives for improving the management of the Nation's public 
rangelands, including the proposed rule changes. On June 8, 1994, BLM 
and the Forest Service held 48 hearings throughout the West on the 
draft EIS and the proposed rulemakings; one hearing was also held that 
day at BLM's Eastern States Office in Virginia. Hearings were preceded 
by open houses staffed by Federal personnel to answer individual 
questions about the proposed rule. The location and procedures for the 
open houses and hearings were published in the May 16, 1994, Federal 
Register and announced in news releases. More than 1,900 people 
testified at the hearings. A transcript was made of each hearing. The 
transcripts are part of the public comment record and were considered 
during preparation of this final rule.
    The Department received and considered more than 20,000 letters 
from over 11,000 persons on the notice of proposed rulemaking and the 
draft EIS. These letters included over 38,000 individual comments. The 
specific aspects of the notice of proposed rulemaking generating the 
most comments were the definitions, grazing fees, standards and 
guidelines for grazing, and Resource Advisory Councils (RACs). The 
objectives statement, mandatory qualifications, cooperative range 
improvement [[Page 9895]] agreements, water rights, permits, and 
prohibited acts also generated a great number of comments. Many letters 
expressed opinions that the overall rangeland improvement proposal was 
a disincentive for good stewardship, would have major economic impacts 
on rural western communities, and would result in the ``taking'' of 
private property. Others supported aspects of the proposal, such as 
broadening participation in the decisionmaking process, requiring 
permittees or lessees to be good stewards, cancellation of permits for 
nonuse, and nonmonetary settlement of minor violations. All original 
letters and transcripts have been kept on file in sequential order.
    On December 30, 1994, the Department published in the Federal 
Register a notice of availability of the Final EIS (FEIS). The agency 
mailed over 14,000 individual copies to Federal agencies, United States 
Senators and Representatives, the western governors, major 
environmental and industry groups, individuals who commented either on 
the draft EIS or the notice of proposed rulemaking or testified at the 
field hearings, and anyone else who requested copies. Copies are 
available from any BLM Resource Area office or Forest Service Forest 
Office throughout the western States.

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

    This section presents the general provisions of the Department's 
program to improve the public land grazing program.

Public Participation in Rangeland Management

    Allowing more Americans to have a say in the management of their 
public lands is an important element of improving the management of the 
public rangelands. The American rangelands can be--and are--used for 
far more than grazing. Hiking, birding, camping, fishing, hunting, 
mountain biking and mineral development activities are among the 
activities that are compatible with sound grazing practices. Section 
102(a)(8) of FLPMA makes it clear that the Secretary is to manage the 
public lands in a manner that will protect the quality of scientific, 
scenic, historical, ecological, environmental, air, atmospheric, water 
resource, and archeological values.
    The Department believes that the public interest will be best 
served if a wide range of interests are represented when decisions are 
being made. Thus, increased public participation is essential to 
achieving lasting improvements in the management of our public lands.
    Under FLPMA, the Secretary is required to involve the public in 
many phases of public land management, including the development of 
regulations (section 102) and plans and programs (section 202). Section 
309 authorizes the Secretary to provide for public participation in the 
preparation and execution of plans and programs for the management of 
public lands by establishing advisory councils that conform to the 
requirements of the Federal Advisory Committee Act (FACA).
    Consistent with these provisions, the proposed rule gave extensive 
consideration to public participation in rangeland management. It 
proposed the creation of RACs in most BLM administrative districts 
which would be involved in the development of standards and guidelines 
for grazing. The RACs would have had the option of establishing 
rangeland resource teams and technical review teams for the purpose of 
providing input to be used by the RACs in developing recommendations. 
The RACs could request that the Secretary respond directly to their 
concerns if the council believed its advice was being arbitrarily 
disregarded. RAC members would be required to avoid conflicts of 
interest and to disclose direct or indirect interests in Federal 
grazing permits or leases, and to have experience or knowledge of the 
geographic area under the purview of the council.
    Many comments were received on the concept of public participation. 
Almost all commenters supported the central principle--that public 
participation in decisionmaking on rangeland management should be 
enhanced. Comments on specific details of the proposal varied widely. 
Many commenters stressed their belief that the proposal was too complex 
and the resulting structure would create major administrative and 
resource needs without significant benefits. Other major comment themes 
addressed representation of various interests on all levels, 
requirements that members have local expertise, residency requirements, 
ability of the committees to participate in the development of 
standards and guidelines, the opportunity for the councils to request 
the Secretary to review issues, and the applicability of the FACA to 
the rangeland resource teams and technical review teams, among others. 
These comments are discussed in more detail in the section-by-section 
analysis of this preamble.
    The proposed rule also included a detailed discussion of a model 
for enhanced community-based involvement in rangeland management 
prepared by the Colorado Working Group on rangeland improvement. This 
Working Group was convened by Governor Roy Romer, and met between 
November 1993 and January 1994. Although the Working Group considered 
this an experimental approach that might not be applicable to other 
western States, the Working Group's model contained a number of 
excellent ideas, which, in the Department's judgement, other States 
might find useful in developing their own structures for public 
participation. During the comment period, the Department also received 
a number of suggestions concerning public participation from Governor 
Mike Sullivan of Wyoming who had convened a Steering Committee on the 
Management of Federal Lands. While the Committee noted that it did not 
reach unanimity on all issues, the model for public participation 
proposed by the group also contained many excellent ideas. The Wyoming 
and Colorado documents were extremely helpful to BLM in formulating 
this final rule, and the Department appreciates the work of the 
individuals who participated in these efforts. Two models of public 
participation included in the final rule were based heavily on the 
Wyoming and Colorado proposals. The Wyoming and Colorado proposals 
suggested that increased flexibility was needed in the development of 
final requirements for public participation in rangeland management. In 
response to these and other comments the Department has attempted to 
develop a final rule that provides maximum flexibility for structuring 
the public participation process.
    FLPMA directs the Secretary to establish advisory councils of not 
less than 10 and not more than 15 members. Members must be appointed 
from among representatives of the various major citizens' interests 
concerned with problems relating to land use planning, or with the 
management of the public lands located within the area for which an 
advisory council is established. At least one member must be a publicly 
elected official. The Department envisions that the RACs formed in each 
State under the final rule will fulfill these statutory requirements. 
The RACs would also be subject to FACA (5 U.S.C. Appendix).
    The rules as finalized today are designed to implement certain 
basic requirements that are essential to fulfilling the requirements of 
FACA, FLPMA, and the needs of the [[Page 9896]] Department's program to 
improve management of the public rangelands:

--A RAC of 10-15 members, as required by Sec. 309 of FLPMA;
--Openness and balance as required by FACA, assuring participation of 
commodity, environmental, and other interests;
--Consensus decisionmaking, with a majority of each group required to 
send recommendations forward;
--A RAC that is strictly advisory, as required by FACA and other 
statutes.

    Consistent with many comments received, the rule provides a high 
degree of flexibility so that decisions can be made locally about how 
to structure the councils. Section 1784.6-1 of this final rule sets 
forth basic requirements that must be met by all councils. Three 
general interest groups will be represented, from which 10 to 15 
members must be chosen in a balanced fashion. The first group includes 
various commodity industries, such as grazing and mineral interests, 
and other interests that benefit from use of public lands, such as 
outfitters. The second group includes nationally or regionally 
recognized environmental or resource conservation groups, wild horse 
and burro interest groups, archeological and historical interests, and 
representatives of dispersed recreational activities, such as birders 
or hikers. The third group includes persons who hold State, county, or 
local elected office, the public-at-large, Indian tribes within or 
adjacent to the area covered by the advisory council, natural resource 
or natural science academia, and State agencies responsible for the 
management of fish and wildlife, water quality, water rights, and State 
lands.
    RAC members will be appointed by the Secretary. This is a 
requirement of both FLPMA and FACA. Governors of States in which the 
councils will be organized will be requested to provide a list of 
nominees for the Secretary's consideration. The Secretary encourages 
Governors to formulate nominations through a process open to the 
public. In addition, a public call for nominations will be made through 
a notice in the Federal Register and other appropriate publications. 
Persons can nominate themselves for membership. Membership of each RAC 
will reflect a balance of views to ensure that the council represents 
the full array of issues and interests within the area covered by the 
council associated with public land use, management, protection and an 
understanding of the Federal laws and regulations governing public 
lands. Individuals can qualify to serve on a RAC if they possess 
relevant experience or expertise and have a commitment to collaborative 
effort, successful resolution of resource management issues and 
application of the relevant law. Members must have experience or 
knowledge of the geographic area under the purview of the council, must 
be residents of a State in which the area covered by a RAC is located, 
and must be supported by letters of recommendation from the groups or 
interests they will represent. An individual may serve on only one RAC. 
All members must receive training on issues related to rangeland 
management.
    All RACs will be required to have specified quorum and voting 
rules, including the requirement that a majority of members from each 
category support a proposal before a recommendation can be forwarded to 
the authorized officer. Travel and per diem will be paid, and BLM will 
provide administrative support for the councils. A BLM employee will be 
named ``designated Federal officer'' as required by FACA.
    All members of the council will be subject to conflict of interest 
provisions. To facilitate implementation of Federal conflict of 
interest requirements, council members will have to disclose their 
direct or indirect interest in BLM leases, licenses, permits or 
contracts. This does not mean that individuals with such interests 
cannot serve on councils; however, no member can participate in 
specific issues in which he or she has an interest.
    The role of the RAC is to provide advice to BLM. Each RAC will 
focus on the full array of multiple use issues associated with public 
lands within its area of jurisdiction. They will consult on the 
preparation of standards and guidelines for grazing administration. The 
RACs will advise the Secretary and BLM--and other agencies as 
appropriate--on matters relating to multiple use issues associated with 
public lands and resources. They will also provide advice on 
preparation, amendment, and implementation of land use management plans 
and activity plans and consult in planning for range development and 
improvement programs. RACs will not provide advice on internal BLM 
management concerns such as personnel or budget expenditures.
    Final Sec. 1784.6-2 provides three models that supply additional 
detail on the structuring of public participation. Decisions about 
which model will be used in particular areas will be made by the State 
Directors of BLM, in consultation with affected Governors and other 
interested parties. Model A is based heavily on the suggestions made by 
the Colorado Working Group. It includes three levels of groups--the RAC 
itself, local five member rangeland resource teams appointed by the RAC 
based either on its own initiative or as a result of local requests, 
and technical review teams established directly by BLM to solve 
specific, short-term technical issues. The RACs would have 15 members 
and would be established on BLM District boundaries, ecoregions, or 
resource areas. A 60% vote of the RAC membership (including a majority 
of each category of users) would be required to send suggestions to 
BLM.
    Model B is based heavily on the suggestions made by the Wyoming 
Steering Committee. It includes 3 levels of groups--the 15 member RAC, 
formed on either a Statewide or ecoregion basis, a more local 10 member 
rangeland resource team formed by the RAC, and technical review teams 
established directly by BLM to solve specific, short-term technical 
issues. In addition to requiring membership to be balanced among the 
commodity, environmental and local interest groups specified in 
Sec. 1784.6-1(c), the RAC would include individuals representing 
wildlife, grazing, minerals and energy, and established environmental 
interests. An 80% vote of the RAC membership (including a majority of 
each interest group) would be required to send suggestions to BLM.
    Model C was developed by BLM in response to additional issues 
raised by the commenters. In addition to the requirements specified in 
Sec. 1784.6-1, this model accommodates formation of the RACs, and any 
type and number of subgroups as needed. The RAC can be formed along 
State, BLM district, or ecoregion boundaries. A majority of each of the 
three categories of users must vote affirmatively to send suggestions 
to BLM. General function subgroups at the local level can be formed on 
the initiative of the RAC or by local initiative. Special function 
groups formed to solve special technical problems would be constituted 
by BLM on its own initiative or in response to requests from RACs or 
any of the subgroups under the RACs.
    The Department expects that most, if not all, public land managed 
by BLM will fall under the purview of one of these councils. Exceptions 
will be made where BLM State Director determines that there is 
insufficient interest to form a council or that it would be impossible 
for such a council to have effective participation due to the location 
of the public lands with respect to the population. Implementation of 
the principles discussed above will result in [[Page 9897]] enhanced 
public involvement in rangeland management, as envisioned throughout 
FLPMA.
    The Department intends to start using the RACs for advice shortly 
after the rule becomes effective on August 21, 1995. This will require 
the selection of the advisory council model for each State and the 
nomination of advisory council members within the six-month period 
before this rule becomes effective. The decision regarding which 
advisory council model will be implemented in each State will be based 
on recommendations from BLM State Directors following consultation with 
the respective Governors and input from the public. Once the preferred 
model is identified, the internal process of developing the council 
charters can begin. The Department will also seek nominations for 
membership on the advisory councils from Governors and through a public 
call for nominations, pursuant to 43 CFR 1784.4-1. Finally, charters 
for the advisory councils will be drafted and reviewed by the 
Department, the Office of Management and Budget, and the General 
Services Administration. The timely establishment of the advisory 
councils will help ensure that there is adequate time for the councils 
to participate in developing State or regional standards and 
guidelines.

Range Improvements and Water Rights

    The final rule conforms with common law concepts regarding 
retention of the title of permanent improvements in the name of the 
party that holds title to the land. Accordingly, after August 21, 1995, 
the title to all new grazing-related improvements constructed on public 
lands, or improvements related to the vegetation resource of public 
lands, except temporary or removable improvements, will be in the name 
of the party that holds title to the land, i.e. the United States. This 
provides consistent direction within BLM and makes BLM practice 
consistent with that of the Forest Service. Permanent range 
improvements will be approved through a cooperative range improvement 
agreement. A permittee's, lessee's, or cooperator's interest for 
contributed funds, labor, and materials will be documented. This 
documentation is necessary to ensure proper credit for purposes of 
reimbursement pursuant to section 402(g) of FLPMA, which requires 
compensation for the permittee's or lessee's authorized permanent 
improvements whenever a permit or lease is cancelled, in whole or in 
part, in order to devote the lands to another public purpose. Title to 
improvements existing before the effective date of this rule is not 
affected.
    The final rule adopts without change the language of the proposed 
rule relating to water rights. The final rule provides consistent 
direction for BLM regarding water rights on public lands for livestock 
watering purposes. It is intended to make BLM's policy consistent with 
Forest Service practice, and with BLM policy on asserting water rights 
for livestock grazing prior to changes in the early 1980's. This 
section provides that the United States will acquire, perfect, 
maintain, and administer water rights obtained on public land for 
livestock grazing on public land in the name of the United States to 
the extent allowed by State law. Some States, such as Wyoming, grant 
public land livestock grazing water rights in the name of the landowner 
but also, in situations where the grazing lessee or permittee of State 
or Federal public land applies for a water right on that land, 
automatically include the State or Federal landowner as co-applicant. 
After consideration of public comment and further analysis, we have 
determined that co-application or joint ownership will be allowed where 
state policy permits it; for example, the Wyoming policy is consistent 
with the rule. Development of new water sources on public lands 
associated with a grazing permit or lease will be subject to 
cooperative range improvement agreements as provided in section 
Sec. 4120.3-2.
    The rule adopted today will be prospective. The final rule does not 
create any new Federal reserved water rights, nor will it affect valid 
existing water rights. Any right or claim to water on public land for 
livestock watering on public land by or on behalf of the United States 
will remain subject to the provisions of 43 U.S.C. 666 (the McCarran 
Amendment) and section 701 of FLPMA (43 U.S.C. 1701 note; disclaimer on 
water rights). Finally, the final rule does not change existing BLM 
policy on water rights for uses other than public land grazing, such as 
irrigation, municipal, or industrial uses.

Administrative Practices

    With this final rule, BLM has made a number of changes to improve 
the administration of grazing on lands managed by BLM. These changes 
principally affect public participation in range decisions, 
administrative appeals and implementation of decisions, 
disqualification of applicants for grazing permits and leases based on 
a prior record of noncompliance, acts prohibited by the regulations, 
and the definition and implementation of conservation use.
    Interested public. An important element of rangeland improvement 
involves facilitating effective public participation in the management 
of public lands. To implement this goal, the term ``affected 
interests'' is removed throughout the rule and replaced with the term 
``interested public.'' The rule also removes the authorized officer's 
discretion to determine whether an individual meets the standards for 
``affected interest'' status. The final rule adopts the definition of 
``interested public'' as set forth in the proposed rule.
    This change provides a consistent standard for participation by the 
public in decisions relating to grazing. Any party who writes to the 
authorized officer to express concern regarding the management of 
livestock grazing on specific grazing allotments will be recognized as 
a member of the ``interested public.''
    Requirements for consultation with the interested public have been 
added in various sections of the rule, including those that deal with 
permit issuance, renewal and modification, increasing and decreasing 
permitted use, and development of activity plans and range improvement 
programs.
    Appeals. Comments on the appeals procedures contained in the 
proposed rule suggested that the provisions were not clear. A number of 
changes have been made in the final rule to clarify the provisions. 
Most importantly, the final rule now references existing procedures in 
43 CFR part 4, rather than repeating language from that part.
    Under the final rule, persons choosing to appeal a decision of the 
authorized officer will normally be provided a 30-day period in which 
to file an appeal. Appellants may also petition the Director of the 
Office of Hearings and Appeals (OHA), or the Interior Board of Land 
Appeals (IBLA) to stay the decision until the appeal is decided. Where 
a petition for stay has been filed with an appeal, the Department's OHA 
has 45 days from the expiration of the 30-day appeal period either to 
grant or deny the petition for stay, in whole or in part. Thus, in 
cases where a person has filed a petition for stay of the decision of 
the authorized officer along with an appeal, and where the request for 
stay is denied, implementation of the decision would be delayed up to 
75 days. In the event a stay of the decision is granted in whole or in 
part, the decision will be stayed until such time as a determination on 
the appeal is made.
    This rule clarifies that the authorized officer can issue final 
decisions and [[Page 9898]] place them in effect immediately when it is 
necessary to protect rangeland resources from damage in situations 
described under Sec. 4110.3-3(b). The rule also adds a provision that 
decisions to close areas to specified kinds of livestock use when it is 
necessary to abate unauthorized use, as provided in Sec. 4150.2(d), may 
be issued as final decisions. In these cases, the permittee or lessee 
will still have 30 days to appeal the decision and petition for a stay, 
and the OHA will have 45 days to evaluate the petition; however, the 
decision will be in effect on the date specified in the decision and 
will remain in effect unless a stay is granted.
    The objective of placing decisions in immediate effect under the 
circumstances specified in the rule is to provide for timely action to 
benefit rangelands and to reduce administrative delays. The rule does 
not take away the ability of affected parties to file an appeal, as 
provided by Section 9 of TGA, or to request a stay of the decision 
until such time as the appeal is decided. The Department believes 
making decisions under Secs. 4110.3-3(b) and 4150.2(d) effective 
immediately under the standards provided for in this final rule is 
critical to meeting the goals of sound rangeland management.
    Qualifications. The final rule makes no substantive change from the 
proposed rule. It includes a provision to disqualify applicants for new 
or additional grazing permits and leases if: (1) The applicant or 
affiliate has had any Federal grazing permit or lease, or any State 
grazing permit or lease within the grazing allotment for which a 
Federal permit or lease is sought, cancelled for violation of the 
permit or lease within the 36 calendar months immediately preceding the 
date of application; or (2) the applicant or affiliate is barred from 
holding a Federal grazing permit or lease by order of a court of 
competent jurisdiction.
    These requirements do not apply to applicants for renewal of 
grazing permits or leases. The final rule gives the authorized officer 
the authority to consider whether an applicant for renewal is in 
substantial compliance with the terms and conditions of the permit or 
lease for which renewal is sought.
    Prohibited acts. The final rule adopts provisions of the proposed 
rule, except that provisions from Sec. 4170.1-3, as proposed, have been 
moved to a new paragraph in Sec. 4140.1. Minor clarifying changes are 
also made. As in the proposed rule, Subpart 4140, ``Prohibited Acts,'' 
is revised to modify the list of actions that are defined as prohibited 
acts. Penalties applicable to prohibited acts are set forth in 
Sec. 4170.
    The proposed rule amended the list of prohibited acts to include 
violations of Federal and State laws and regulations concerning water 
pollution, certain predator control activities; application or storage 
of pesticides, herbicides or other hazardous materials; alteration or 
destruction of natural stream courses; wildlife destruction; and 
removal or destruction of archeological resources. It also added 
violations of State laws regarding the stray of livestock to the list.
    The final rule adopts these provisions. It does not attempt to list 
in the text of the regulations all of the specific Federal and State 
laws which, if violated, could constitute prohibited acts. A list of 
such laws was included in the preamble to the proposed rule at 59 FR 
14323-4. It is not the intent of this rule for the authorized officer 
to take direct enforcement action under the provisions of these laws; 
or to take enforcement steps involving the grazing permit or lease for 
any and all violations, no matter how de minimis or technical; or for 
violations of laws that, while they do deal with violations of State 
and Federal laws dealing with water pollution and other matters, do not 
reflect meaningfully upon the ability of the permittee or lessee to be 
a good steward of the public lands. The final rule clarifies that 
violations of these State and Federal laws would constitute prohibited 
acts only where three conditions are met: (1) The violations involve or 
affect BLM lands; (2) the violation is related to grazing use 
authorized by a permit or lease, and (3) the permittee or lessee has 
been convicted or otherwise found to be in violation of the State or 
Federal laws by final court or agency action. The final rule also moves 
similar provisions regarding the Bald Eagle Protection Act, the 
Endangered Species Act (ESA), and the Wild Free-roaming Horse and Burro 
Act from Sec. 4170 to Sec. 4140 to increase clarity and readability.
    Conservation use. The final rule adopts the proposed definition 
with one clarifying change. Conservation use benefits the range by 
facilitating improvement in forage conditions, watersheds, riparian 
areas, and so on. It provides flexibility that is needed to enable 
permittees or lessees to undertake activities on a portion or all of an 
allotment to promote resource protection or enhancement, which includes 
making progress toward resource condition objectives.
    The Department believes that this provision will provide permittees 
and lessees with an additional tool to manage grazing operations 
properly, provided that the conservation use is consistent with land 
use plans. Allotments in conservation use will not be subject to 
grazing fees since no forage will be consumed by livestock. However, 
permittees and lessees requesting conservation use will be required to 
maintain existing improvements so that when the allotment is returned 
to actual use such improvements will be in good working order. A 
service charge can be charged for conservation use, as it is for actual 
use. Conservation use will be initiated by request of the permittee or 
lessee. The BLM will not impose conservation use on an unwilling 
permittee or lessee.
    The advantage of conservation use to the operator is that it allows 
increased flexibility. The operator will be able to enjoy the benefits 
of a long-term rest of the allotment from grazing while preserving the 
ability to resume grazing in the future. During the conservation use, 
BLM will not consider allowing another operator to use any resulting 
forage.
    Resource Management Requirements, Including Standards and 
Guidelines. The final rule adopts the substance of the provisions 
proposed in subpart 4180. The Department has reorganized and rewritten 
the subpart to improve clarity and incorporate more fully a watershed 
management approach.
    The Fundamentals of Rangeland Health. The final rule establishes 
the fundamentals of rangeland health for grazing administration 
(formerly referred to as the national requirements). These fundamentals 
address the necessary physical components of functional watersheds, 
ecological processes required for healthy biotic communities, water 
quality standards and objectives, and habitat for threatened or 
endangered species or other species of special interest. The Department 
believes that these provisions are critical to ensuring that BLM's 
administration of grazing helps preserve currently healthy rangelands 
and restore healthy conditions to those areas that currently are not 
functioning properly, especially riparian areas.
    Where it is determined that existing grazing management needs to be 
modified to ensure that the conditions of healthy rangelands set forth 
in Sec. 4180.1. Fundamentals of rangeland health, are met or 
significant progress is being made to meet these conditions, the 
authorized officer must take appropriate action as soon as practical, 
but not later than the start of the next grazing season. This may 
include actions such as reducing livestock [[Page 9899]] stocking 
rates, adjusting the season or duration of livestock use, or modifying 
or relocating range improvements.
    State or Regional Standards and Guidelines. Standards and 
guidelines are to be developed for an entire State or for an area 
encompassing portions of more than one State, except where the 
geophysical or vegetal character of an area is unique and the health of 
the rangelands will not be ensured by using standards and guidelines 
developed for a larger geographical area. The geographical area covered 
will be determined by BLM State Directors in consultation with affected 
RACs.
    State or regional standards and guidelines will be developed, under 
the umbrella of the fundamentals and consistent with the guiding 
principles of this final rule, to provide specific measures of 
rangeland health and to identify acceptable or best management 
practices in keeping with the characteristics of a State or region such 
as climate and landform. The preparation of standards and guidelines 
will involve public participation and consultation with RACs, Indian 
tribes, and Federal agencies responsible for the management of lands 
within the affected area.
    The guiding principles for the development of standards presented 
in this final rule pertain to the factors needed to help achieve 
rangeland health. More specifically, the factors relate to watershed 
function, threatened or endangered species and candidate species, 
habitat for native plant and animal populations, water quality and the 
distribution of nutrients and energy flow. The guiding principles for 
guidelines direct the identification of acceptable or best grazing 
management practices that will result in or ensure significant progress 
towards fulfillment of the standards.
    State or regional standards and guidelines will provide the 
resource measures and guidance needed to develop terms and conditions 
of permits, leases, and other authorizations, AMPs and other activity 
plans, cooperative range improvement agreements and to issue range 
improvement permits in a manner that will result in maintaining or 
making significant progress toward healthy, functional rangelands.
    Once standards and guidelines are in effect, the authorized officer 
is required to take appropriate action under 43 CFR part 4100 as soon 
as practical, but not later than the start of the next grazing year, 
upon determining that existing grazing management practices are 
significant factors in failing to meet the standards and conform with 
the guidelines. Appropriate actions may include reducing livestock 
stocking rates, adjusting the season or duration of livestock use, or 
modifying or relocating range improvements.
    Fallback Standards and Guidelines. The Department recognizes the 
importance of putting standards and guidelines in place in a timely 
manner, and has provided a mechanism for doing so in this rule. This 
final rule includes a provision for fallback standards and guidelines 
that would become effective 18 months after this rule becomes effective 
in the event that State or regional standards and guidelines have not 
been developed and put into effect. They will remain in effect until 
State or regional standards and guidelines are in effect.
    The fallback standards and guidelines address largely the same 
factors that are provided in the guiding principles for the development 
of the State or regional standards and guidelines. The fallback 
standards include more detail regarding the conditions that would exist 
under each of the factors when rangelands are in a healthy, functional 
condition than do the guiding principles for State or regional 
standards discussed above. Similarly, the fallback guidelines include 
grazing management practices while the guiding principles for State or 
regional guidelines refer more generally to the types of concerns to be 
addressed. The BLM State Directors can adjust the fallback standards 
and guidelines, subject to approval of the Secretary, to fit State or 
local conditions.
    Fallback standards and guidelines will be applied in the same 
manner as standards and guidelines developed for a particular State or 
region, which are discussed above.
    NEPA and Implementation of Standards and Guidelines. The 
fundamentals of rangeland health proposed in this rule, and all 
standards and guidelines whether fallback, State, or regional, will be 
implemented subject to the National Environmental Policy Act of 1969 
(NEPA) and applicable land use planning regulations. The fundamentals 
of rangeland health, the guiding principles for the development of 
State and regional standards and guidelines and the fallback standards 
and guidelines were analyzed in the FEIS for this final rulemaking. Any 
additional NEPA analysis required during development of State or 
regional standards and guidelines could tier to the analysis of the 
fundamentals of rangeland health and standards and guidelines presented 
in the FEIS.
    BLM planning regulations direct that actions be in conformance with 
BLM land use plans. In some instances, the standards and guidelines may 
be consistent with existing land use plans and implementation may 
proceed without further action. In many cases, however, land use plans 
will require modification to ensure conformance with the land use plan 
and the standards and guidelines. The Department intends to develop 
State or regional standards and guidelines, complete plan conformance 
tests, and undertake necessary plan amendments within 18 months of the 
effective date of this rule. State or regional standards and guidelines 
will be implemented as they are finalized and approved by the 
Secretary.

The Federal Grazing Fee and Subleasing

    Grazing fees. The fee portion of the proposed rule generated 
numerous public comments with diverse and conflicting views about the 
impact of an increased fee and the calculation of the fee formula. The 
Department has decided not to promulgate the fee increase provision of 
the proposed rule in order to give the Congress the opportunity to hold 
additional hearings on this subject and to enact legislation addressing 
appropriate fees for grazing on public lands. Other changes not 
pertaining to fees proposed in section 4130.7-1, redesignated as 
Sec. 4130.8-1 in the final rule, remain a part of this rulemaking 
package.
    As proposed, this section would have been amended by revising the 
grazing fee formula, with a provision for phasing in the grazing fee 
increase over the years 1995 through 1997. The proposed rule provided 
for a 30% incentive fee reduction. The incentive was to have been 
implemented after BLM developed separate rules describing the 
eligibility criteria for this incentive based fee. The proposed rule 
also provided that the full fee increase would not go into effect in 
the event that a separate final rule prescribing qualification criteria 
for the incentive-based fee was not completed. Multiple-year billing 
would have been allowed in certain circumstances. In addition, the 
proposed rule provided for a 25 percent cap on changes in the 
calculated fee from year to year. These proposals are not adopted in 
the final rule.
    As adopted by today's action, Section 4130.8-1 clarifies the 
definition of billing unit, provides for assessing a surcharge in 
certain instances for the public landlord's share of authorized 
pasturing agreements associated with public land grazing, and clarifies 
that grazing use occurring before a bill is paid is an unauthorized use 
that may be dealt with under the settlement and penalties sections of 
this rule and may [[Page 9900]] result in the limitation of flexibility 
otherwise provided under an allotment management plan.
    Subleasing. The Department's proposed rule would have imposed a 
surcharge on authorized leasing or subleasing in two situations: (1) 
the subleasing of public land grazing privileges associated with the 
leasing of privately-owned base property; (2) the pasturing of 
livestock owned by someone other than the grazing permittee or lessee 
where the permittee or lessee controls such livestock. This proposal 
was made in response to findings of the General Accounting Office (GAO) 
(see, e.g., RCED-86-168BR), and the Office of the Inspector General 
(OIG) (see report #92-1-1364) that permittees and lessees who sublease 
are unduly benefitting from their permits or leases. Sons and daughters 
of grazing permittees and lessees were exempted from the surcharge.
    In response to comments that putting a surcharge on authorized 
subleasing would adversely affect the ability of new ranchers with 
limited capital to enter the livestock business, the Department has not 
included the surcharge associated with the authorized leasing or 
subleasing of public land grazing privileges associated with base 
property in the final rule. However, in order to address the 
Secretary's intent to establish a fair and reasonable return to the 
public, the surcharge on pasturing agreements is adopted in the final 
rule. The Department recognizes the need to avoid penalizing children 
of grazing permittees and lessees who graze cattle under their parents' 
permits or leases and has included an exemption from the surcharge for 
pasturing for sons and daughters of public land permittees and lessees. 
The Department believes that, as landlord of the public lands, it must 
obtain a fair share, on behalf of the American public, of any income 
received by the permittee for pasturing cattle belonging to others. 
Additionally, the policy of charging a surcharge for pasturing is 
consistent with standard practices on most State grazing lands.
    Commenters also stated that the proposed method for calculating the 
surcharge did not reflect local conditions. The Department has 
addressed this concern by modifying the method for calculating the 
surcharge on pasturing agreements. The final rule provides that the 
surcharge on pasturing agreements will be equal to 35 percent of the 
difference between the Federal grazing fee per AUM and the prior year's 
private lease rate for the appropriate State for forage used by 
livestock owned by another party other than the permittee or lessee. A 
surcharge of 35 percent of the difference between the Federal grazing 
fee and the private lease rate for the appropriate State will recover 
an appropriate ``landlord's share'' and will result, on the average 
across all States, in a surcharge approximating the surcharge presented 
in the proposed rule and analyzed in the EIS for this rule. Pasturing 
agreements must have authorization from the authorized officer. Under 
this final rule, to calculate the surcharge BLM will use the per animal 
unit month (AUM) private grazing land lease rate for the appropriate 
State as reported annually by the National Agricultural Statistics 
Service (NASS).

III. Summary of Rules Adopted

    These final rules revise Parts 4, 1780, and 4100 of Title 43. The 
following summary highlights changes from the current regulations, most 
of which were also included in the proposed rule. The following 
provisions are included:

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

    Section 4.477, Effect of decision suspended during appeal, is 
revised to reflect that grazing decisions will no longer be suspended 
automatically when an appeal is filed. Instead, final grazing decisions 
will be subject to the provisions of 43 CFR 4.21, which governs the 
effect of administrative decisions pending appeal before the 
Department's OHA.

Part 1780--Cooperative Relations

    Section 1784.0-5 is amended by replacing the term ``Authorized 
representative'' with the term ``Designated Federal officer.'' These 
changes provide consistency with the terminology of FACA.
    Section 1784.2-1, Composition, is amended to remove the eligibility 
requirement for grazing advisory board members. The final rule also 
adds a requirement that advisory committee members have demonstrated a 
commitment to collaborate in seeking solutions to resource management 
issues.
    Section 1784.2-2, Avoidance of conflict of interest, is amended to 
provide that no advisory committee member, including members of RACs, 
can participate in any matter in which such member is directly 
interested, and must disclose his or her direct or indirect interest in 
Federal permits, leases, licenses, or contracts administered by BLM.
    Section 1784.3, Member service, establishes that appointments to 
advisory committees will be for two-year terms unless otherwise 
specified in the committee charter or appointing document. Specific 
references to grazing advisory board, district advisory council and 
National Public Lands Advisory Council appointments and terms and 
election procedures have been removed. The rule also provides that 
travel and per diem will be paid to committee members but not to 
members of any subgroups formed under the committees.
    Sections 1784.5-1, Functions and 1784.5-2, Meetings, are amended by 
replacing the term ``authorized representative'' with the term 
``designated Federal officer.'' These changes provide consistency with 
the terminology of FACA.
    Section 1784.6-1, Resource Advisory Councils--Requirements, 
establishes requirements for RACs. It provides that, with certain 
exceptions, councils will be established to cover all BLM lands. RACs 
will provide advice to the BLM official to whom they report regarding 
the preparation, amendment and implementation of land use plans and the 
development of standards and guidelines. The councils will also assist 
in establishing other long-range plans and resource management 
priorities, including plans for expending range improvement funds. RACs 
will not provide advice on personnel management, nor on the allocation 
and expenditure of funds subsequent to budget planning.
    Appointments to RACs will be made by the Secretary. In making 
appointments, the Secretary will consider nominations from the Governor 
of the affected State and nominations received in response to a public 
call for nominations. All nominations will be required to be 
accompanied by letters of recommendation from interests or 
organizations to be represented, and members must be residents of a 
State in which the area covered by the council is located.
    Council members will be selected in a balanced manner from persons 
representing interest groups. There are 3 general groups: Commodity 
Industries--including ranching and developed recreational activities; 
Recreational/Environmental--nationally or regionally recognized 
environmental or resource conservation groups, wild horse and burro 
interest groups, archeological and historical interests, dispersed 
recreational activity interests--such as bicyclists and hikers; and 
Local Area Interest--persons who hold State, [[Page 9901]] county, or 
local elected office, representatives of the public-at-large, Indian 
tribes within or adjacent to the area, natural resource or natural 
science academia, and State agencies responsible for the management of 
natural resources, water quality, water rights, and State lands. At 
least one of the members appointed to each council must hold elected 
State, county, or local office. An individual may not serve on more 
than one RAC at any given time. Council members must have demonstrated 
experience or knowledge of the geographic area for which the council 
provides advice and a commitment to collaborative decisionmaking.
    All members of RACs must attend a course of instruction in the 
management of rangelands that has been approved by BLM State Director.
    Each RAC will have requirements for quorums and for making 
recommendations to the Department. Councils can request that the 
Secretary respond directly where the council believes its advice has 
been arbitrarily disregarded by the BLM manager. If requested, the 
Secretary will respond directly to a council's concerns within 60 days. 
Such a request would require agreement by all members of the council. 
The Secretary's response will not constitute a decision on the merits 
of any issue that is or might become the subject of an administrative 
appeal and will not preclude an affected party's ability to appeal a 
decision of the authorized officer.
    Administrative support for a council will be provided by the office 
of the designated Federal officer.
    Section 1784.6-2, RACs--Optional features, establishes optional 
features for RACs. Three different models are provided, and BLM State 
Director, in consultation with the Governor and other interested 
parties, will determine which model will best suit the needs of the 
State. General characteristics of the three models are presented above, 
in the section on ``Public Participation in Rangeland Management'' 
under the discussion of ``Major Elements of the Department's Program to 
Promote Healthy Rangelands.'' The first model is based largely on the 
model developed by the Colorado Working Group. The second model is 
based largely on the model developed by the Wyoming Steering Committee. 
The third model was developed by BLM after consideration of public 
comment.
    Previous sections 1784.6-1, National Public Lands Advisory Council, 
1784.6-4, District advisory councils, and 1784.6-5, Grazing advisory 
boards, are removed.

Part 4100--Grazing Administration--Exclusive of Alaska

Subpart 4100--Grazing Administration--Exclusive of Alaska; General
    Section 4100.0-2, Objectives, is amended by revising the statement 
of objectives to include promoting healthy, sustainable public 
rangelands; accelerating restoration and improvement of public 
rangelands to properly functioning conditions; promoting the orderly 
use, improvement and development of the public lands; establishing 
efficient and effective administration of grazing of public rangelands; 
and providing for a sustainable western livestock industry and 
communities that are dependent upon productive, healthy public 
rangelands.
    Section 4100.0-5, Definitions, is amended by removing the 
definition of ``Affected interests,'' ``Grazing preference,'' and 
``Subleasing''; revising the definitions of ``Active use,'' ``Actual 
use,'' ``Allotment management plan (AMP),'' ``Consultation, cooperation 
and coordination,'' ``Grazing lease,'' ``Grazing permit,'' ``Land use 
plan,'' ``Range improvement,'' ``Suspension,'' and ``Utilization''; and 
by adding in alphabetical order the definitions of ``Activity plan,'' 
``Affiliate,'' ``Annual rangelands,'' ``Conservation use,'' ``Ephemeral 
rangelands,'' ``Grazing preference or preference,'' ``Interested 
public,'' ``Permitted use,'' ``Temporary nonuse,'' and ``Unauthorized 
leasing and subleasing.''
    Section 4100.0-7, Cross-references, is amended to guide the public 
to the applicable sections of 43 CFR part 4 when considering an appeal 
of a decision relating to grazing administration, to 43 CFR part 1600 
regarding the development of land use plans, and to 43 CFR part 1780 
regarding advisory committees.
    Section 4100.0-9, Information collection, is added to conform to 
the requirements of the Paperwork Reduction Act (44 U.S.C. 3501 et 
seq.). The section discloses to the public the estimated burden hours 
needed to comply with the information collection requirements in this 
rule, why the information is being collected, and what the information 
will be used for by BLM.
Subpart 4110--Qualifications and Preference
    Section 4110.1, Mandatory qualifications, is amended to require 
that applicants for renewal or issuance of new grazing permits or 
leases, and any affiliates of such applicants, must be determined by 
the authorized officer to have a satisfactory record of performance. 
Applicants and any affiliates for renewal must be determined to be in 
substantial compliance with the terms and conditions of the permit or 
lease for which renewal is sought, and with applicable regulations. 
Applicants and any affiliates who have had a Federal grazing permit or 
lease, or a State grazing permit or lease for lands within the Federal 
grazing allotment for which application is made, cancelled within 36 
months preceding application shall be deemed not to have a satisfactory 
record of performance. Applicants and their affiliates that are barred 
from holding a Federal grazing permit or lease by court order are also 
disqualified from receiving a new permit or lease. The amendments to 
this section also clarify that mortgage insurers, natural resource 
conservation organizations, and private parties whose primary source of 
income is not the livestock business, but who meet the criteria of this 
section, are qualified for a grazing permit or lease.
    Section 4110.1-1, Acquired lands, is amended to clarify that 
existing grazing permits and leases on lands acquired by BLM are 
subject to the permit or lease terms and conditions that were in effect 
at the time of acquisition. Following expiration of the pre-existing 
permit or lease, applicants for grazing permits or leases will be 
subject to the provisions of Sec. 4110.1 of this final rule.
    Section 4110.2-1, Base property, is amended to clarify that base 
property must be capable of serving as a base for livestock operations 
but it need not actually be in use for livestock production at the time 
the authorized officer finds it to be base property. Further, the final 
rule makes clear that where authorized water developments on public 
lands that have been previously recognized as base property require 
reconstruction or replacement in order to continue to service the same 
area, and the reconstructed or new development has been authorized 
through a cooperative range improvement agreement, the permittee's or 
lessee's interest in the new or reconstructed water development will 
continue to be recognized as base property.
    Section 4110.2-2, Specifying permitted use, is retitled to reflect 
the redefinition of the term ``grazing preference,'' and amended to 
replace the term ``grazing preference'' with ``permitted use.'' Also, 
the section is amended to clarify that levels of grazing use on 
ephemeral or annual ranges are established on the basis of the amount 
[[Page 9902]] of forage that is temporarily available pursuant to 
vegetation standards prescribed by land use plans or activity plans.
    Section 4110.2-3, Transfer of grazing preference, is amended to 
reflect the new requirements of Sec. 4110.1-1 pertaining to the 
applicant's history of performance and by adding a new paragraph (f) to 
require that new permits or leases stemming from transfer of the base 
property be for a minimum of three years, unless a shorter term is 
approved by the authorized officer.
    Section 4110.2-4, Allotments, is amended to clarify that 
designation and adjustment of allotment boundaries includes the 
authority for, and the practice of, combining or dividing allotments 
when determined by the authorized officer to be necessary to achieve 
resource condition objectives or to enhance administrative efficiency. 
The section clarifies that modification of allotments must be done 
through agreement or decision of the authorized officer, following 
consultation, cooperation and coordination with involved persons, 
including the interested public.
    Section 4110.3, Changes in permitted use, is amended by replacing 
the term ``grazing preference'' with ``permitted use,'' and by 
clarifying that changes in permitted use will be supported by 
monitoring data, field observations, land use planning decisions, or 
data collected through other studies.
    Section 4110.3-1, Increasing permitted use, is amended by including 
the requirement that a permittee, lessee, or other applicant must be 
determined to be qualified under subpart 4110, by substituting the term 
``permitted use'' in place of ``grazing preference,'' and by clarifying 
the requirements for consultation. Also, reference to a permittee's or 
lessee's demonstrated stewardship is added to factors to be considered 
in allocating available forage.
    Section 4110.3-2, Decreasing permitted use, is amended by revising 
the heading, revising paragraph (b) to expand the list of methods for 
determining when a reduction in grazing use is necessary, and by 
deleting paragraph (c), which contained provisions for suspended use. 
The amendment adds ecological site inventory and other recognized 
methods for determining forage production as methods of identifying 
when use exceeds the livestock carrying capacity of the area 
considered. Monitoring remains as a means of determining forage 
production. The amendment also adds a reference to the fundamentals of 
rangeland health and standards and guidelines.
    Section 4110.3-3, Implementing reductions in permitted use, is 
retitled and previous paragraph (a) and other requirements for phased-
in reductions in permitted use are removed. Previous paragraph (b) is 
amended to remove the term ``suspension of preference'' and add in its 
place the term ``reductions in permitted use.'' The phrase ``when 
continued grazing use poses a significant risk of resource damage from 
these factors'' is amended to read ``when continued grazing use poses 
an imminent likelihood of significant resource damage.'' This clarifies 
that modifications in grazing use and notices of closure can be 
implemented where continued grazing use poses an imminent likelihood of 
significant resource damage. Additionally, paragraph (b) provides, by 
reference to Sec. 4110.3-2, for the application of the fundamentals of 
rangeland health and standards and guidelines and the use of other 
methods, in addition to monitoring, for determining the need for an 
initial reduction, and clarifies the action of the field manager, 
requirements for consultation, cooperation and coordination with 
involved persons, including the interested public. Previous paragraph 
(c) is redesignated as paragraph (b) and amended to remove the word 
``temporary'' to recognize that the influences of natural events such 
as drought can significantly affect vegetation health and productivity 
for several months or years after a drought has passed. Redesignated 
paragraph (b) retains the special provisions for making decisions 
effective upon issuance or on the date specified in the decision when 
action is needed to protect rangeland resources.
    Paragraph (a) of Sec. 4110.4-2, Decreases in land acreage, is 
amended by removing reference to suspended use. Reductions in 
authorized use under preference permits or leases will no longer be 
recognized as suspended use.
Subpart 4120--Grazing Management
    Section 4120.2, Allotment management plans and resource activity 
plans, is amended by revising the heading and by adding a reference to 
other activity plans that may prescribe grazing management. The final 
rule clarifies that draft AMPs or other draft activity plans may be 
prepared by other agencies or permittees or lessees, but that such 
plans do not become effective until approved by the authorized officer. 
AMPs must include standards and guidelines. Paragraph (a) is also 
amended by replacing the reference to district grazing advisory boards 
with RACs and including State resource management agencies in the 
activity planning process.
    The final rule also provides that permits and leases must include 
in their terms and conditions a requirement for conformance with AMPs 
or other applicable activity plans. Further, it provides that 
flexibility granted to permittees or lessees under a plan will be 
determined on the basis of demonstrated stewardship. The rule clarifies 
the existing provision that the inclusion of lands other than public 
lands in an AMP or other activity plan is discretionary. Finally, this 
section references the NEPA analysis and related public participation 
that is required for the planning and revision of allotment or activity 
plans, and provides that the decision document that follows the 
environmental analysis serves as the proposed decision for purposes of 
subpart 4160.
    Section 4120.3-1, Conditions for range improvements, is amended by 
specifying in paragraphs (b) and (e) that ``cooperative agreements'' 
refers to cooperative range improvement agreements, and by inserting a 
new paragraph (f) addressing reviews of decisions associated with range 
improvement projects. The amendment clarifies the process for 
administering protests and appeals of decisions and provides that 
appeals are subject to the administrative remedies process set forth in 
43 CFR part 4160.
    The heading of Sec. 4120.3-2, Cooperative range improvement 
agreements, is revised to clarify that this section deals with 
cooperative range improvement agreements as opposed to ``cooperative 
agreements'' with other Federal or State agencies. The section is 
amended to clarify that title will be in the United States for all new 
permanent grazing-related improvements constructed on public lands.
    Title to temporary grazing-related improvements used primarily for 
livestock handling or water hauling can still be held by the permittee 
or lessee. The amendment will not affect ownership or rights currently 
held in a range improvement.
    The provisions pertaining to title do not affect the existing 
practice of retaining a record of permittee or lessee contributions to 
specific authorized range improvement projects. This record will be 
used in determining compensation due the permittee or lessee in the 
event a permit or lease is cancelled in order to devote the public 
lands to another public purpose, including disposal of the lands. This 
record may also be considered during [[Page 9903]] the transfer of 
grazing preference to ensure that all interests in range improvements 
have been assigned to the transferee.
    The amendment does not change agreements currently in effect. The 
amendment also clarifies that permanent water improvement projects will 
be authorized through cooperative range improvement agreements.
    Section 4120.3-3, Range improvement permits, is amended to make it 
clear that a permittee or lessee may hold title to removable livestock 
handling facilities and to temporary improvements such as troughs for 
hauled water or loading chutes. The amendment will not affect ownership 
or rights currently held in a range improvement.
    The final rule provides that BLM may mediate disputes when 
necessary about reasonable compensation for the operation and 
maintenance of facilities when another operator is authorized temporary 
use of forage that the preference permit holder cannot use. Finally, 
the rule removes as unnecessary the provision that permittees or 
lessees can control their livestock's use of ponds or wells.
    A new section Sec. 4120.3-8, Range improvement fund, is added to 
address the distribution and use of the ``range betterment'' funds 
appropriated by Congress through section 401(b) of FLPMA for range 
improvement expenditures by the Secretary. The range betterment fund 
has been called the range improvement appropriation by Congress, and is 
known by that title in BLM. The final rule provides for distribution of 
the funds by the Secretary, with one-half of the range improvement fund 
to be made available to the State and District from which the funds 
were derived. The remaining one-half is to be allocated by the 
Secretary on a priority basis. All range improvement funds will be used 
for on-the-ground rehabilitation, protection and improvements of public 
rangelands.
    The final rule further clarifies that range improvement includes 
activities such as planning, design, layout, modification, as well as 
maintaining, monitoring and evaluating the effectiveness of specific 
on-the-ground range improvements in achieving resource condition and 
management objectives.
    The final rule also requires consultation with affected permittees, 
lessees, and the interested public during the planning of range 
development and improvement programs. RACs will also be consulted 
during the planning of range development and improvement programs, 
including the development of budgets for range improvement and the 
establishment of range improvement priorities.
    Section 4120.3-9, Water rights for the purpose of livestock grazing 
on public lands, is added to provide consistent direction for BLM 
regarding water rights on public lands for livestock watering purposes. 
This section provides that the United States will acquire, perfect, 
maintain, and administer any rights to water obtained on public land 
for livestock watering on public land in the name of the United States 
to the extent allowed by State law.
    The rule adopted today will be prospective. The final rule does not 
create any new Federal reserved water rights, nor will it affect valid 
existing water rights. The provisions of this final rule are not 
intended to apply to the perfection of water rights on non-Federal 
lands. Any right or claim to water on public land for livestock 
watering on public land by or on behalf of the United States will 
remain subject to the provisions of 43 U.S.C. 666 (the McCarran 
Amendment) and section 701 of FLPMA (43 U.S.C. 1701 note; disclaimer on 
water rights). Finally, the final rule does not change existing BLM 
policy on water rights for uses other than public land grazing, such as 
irrigation, municipal, or industrial uses.
    Section 4120.5 is added to recognize and encourage cooperation 
with, among others, State, county, Indian tribal, and local government 
entities and Federal agencies.
    Section 4120.5-1, Cooperation with State, county, and Federal 
agencies, is amended to recognize existing cooperation with State 
cattle and sheep boards, county and local noxious weed control 
districts, and State agencies involved in environmental, conservation, 
and enforcement roles related to these cooperative relationships.
Subpart 4130--Authorizing Grazing Use
    This section is reordered to follow a more logical sequence. This 
discussion will use the new numbers and cross reference the old 
numbers. A table showing old and new numbers is included in the 
section-by-section discussion of this subpart.
    Section 4130.1, Applications, is added. This action merely adds a 
title for purposes of the reorganization of the subpart.
    Section 4130.1-1, Filing applications, is renamed from the proposed 
``Applications'' and amended slightly to accommodate the new category 
of use, conservation use, which is adopted in this final rule.
    Section 4130.1-2, Conflicting applications, is amended to add 
criteria to be considered in granting a use authorization or permit or 
lease. The rule incorporates the history of applicants' and affiliates' 
compliance with the terms and conditions of Federal and State grazing 
permits and leases and demonstrated stewardship of the public lands as 
criteria for granting permits or leases where there is more than one 
qualified applicant.
    Section 4130.2, Grazing permits or leases, is amended so that 
permits and leases will continue to be offered for 10-year terms except 
in specified circumstances. The final rule also clarifies that all 
grazing permits and leases issued, including the transfer or renewal of 
permits and leases, will include terms and conditions addressing the 
fundamentals of rangeland health and standards and guidelines proposed 
under subpart 4180, as well as terms and conditions establishing 
allowable levels, seasons and duration of use, and other factors that 
will assist in achieving management objectives, provide for proper 
range management, or assist in the orderly administration of the public 
rangelands. The final rule also provides that the authorized officer 
must consult with interested parties prior to the issuance or renewal 
of grazing permits and leases and prohibits the offering or granting of 
permits and leases to applicants who refuse to accept the terms and 
conditions of the offered permit or lease.
    The final rule clarifies the process of application for and 
granting of conservation use and temporary nonuse. Conservation use is 
established as one of the allowable uses for which a permit or lease 
may be granted when it is in conformance with the applicable land use 
and activity plans and the appropriate standards and guidelines.
    Forage made available as a result of temporary nonuse may be 
authorized for temporary use by another operator. Forage used for 
conservation purposes would not be available to other livestock 
operators. The procedures guiding approval of nonuse have been 
developed in response to a recommendation from the March 19, 1986, 
OIG's review of the grazing management program.
    Section 4130.3, Terms and conditions, is amended through a minor 
addition to reflect the requirement to conform with the fundamentals of 
rangeland health and standards and guidelines of subpart 4180.
    Section 4130.3-1, Mandatory terms and conditions, is amended 
through minor additions and deletions which [[Page 9904]] clarify that 
use must not exceed the livestock carrying capacity of the allotment, 
and by removing unnecessary references to previous sections. The 
section is further amended to add a paragraph (c) that requires that 
the fundamentals of rangeland health and the appropriate standards and 
guidelines be reflected in the terms and conditions of permits, leases 
and other authorizations.
    Section 4130.3-2, Other terms and conditions, is amended to provide 
for proper rangeland management and to remove unnecessary language. The 
final rule allows terms and conditions to provide for improvement of 
riparian area functions and protection of rangeland resources and 
values consistent with applicable land use plans. Paragraph (h) 
affirmatively states that BLM will have reasonable administrative 
access across the permittee's or lessee's owned or leased private lands 
for the management and protection of public land.
    Section 4130.3-3, Modification, is amended to clarify consultation 
requirements in the modification of terms and conditions of permits and 
leases. The rule provides for greater State and public participation 
when changes are proposed that are not within the scope of the existing 
permit or lease. The rule also provides for increased State and public 
participation during the evaluation of monitoring results or other data 
that provide a basis for decisions regarding grazing use or management.
    Section 4130.4, Authorizations within terms and conditions of 
permits and leases, is amended to allow field managers to make 
temporary changes in authorized use that are within the scope of 
existing permits and leases.
    Section 4130.5, Free-use grazing permits, is modified to reflect 
new circumstances under which the authorized officer may grant free-use 
permits. This new provision was contained in Sec. 4130.7-1 of the 
proposed rule.
    The final rule provides that free use can be permitted where the 
primary objective of authorized grazing use or conservation use is the 
management of vegetation to meet resource objectives other than the 
production of livestock forage, to conduct scientific research or 
administrative studies, or to control noxious weeds.
    Section 4130.6-1, Exchange of use grazing agreements, is amended to 
specify that exchange of use grazing agreements must be consistent with 
management objectives and compatible with existing livestock 
operations. The agreements will be required to address the fair sharing 
of maintenance and operation of range improvements and will be approved 
for the same term as any leased lands that are offered.
    Section 4130.6-2, Nonrenewable grazing permits and leases, is 
modified to require the authorized officer to consult with the affected 
permittee or lessee, the State, and the interested public before 
issuing a nonrenewable permit.
    Section 4130.6-3, Crossing permits, is modified to specify that 
crossing permits are a form of temporary use authorization.
    Section 4130.7. Ownership and identification of livestock, is 
amended to make it clear that, before grazing livestock owned by 
persons other than the permittee or lessee, the permittee or lessee 
must have an approved use authorization and must have submitted a copy 
of the documented agreement or contract that includes information 
required for BLM's administration of permits and leases and management 
of rangeland resources.
    Sons and daughters of permittees or lessees are exempted from the 
provisions of this section in specified circumstances. This is 
necessary to allow sons and daughters, who are grazing livestock on 
public lands under their parents' permit or lease in specified 
circumstances, to avoid the pasturing surcharge provided in 
Sec. 4130.8.
    Section 4130.8-1, Payment of fees, is amended to make clear the 
definition of a billing unit, to provide for the assessment of a 
surcharge for authorized pasturing of another owner's livestock and to 
clarify that grazing use that occurs before a bill is paid is an 
unauthorized use, may be dealt with under the settlement and penalties 
sections of these regulations. Also, the section is amended to clarify 
that delays in payment of actual use billings and noncompliance with 
the terms and conditions of permits or leases may result in the loss of 
after-the-grazing-season billing privileges authorized under an AMP. 
For administrative convenience, the assessment of pasturing surcharges 
will not begin until the start of the next grazing year, March 1, 1996.
    The final rule recognizes two types of authorized subleasing. The 
first is the sublease of public land grazing privileges along with the 
base property associated with the permit or lease. Such a sublease of 
the public land grazing privileges must be accompanied by a lease or 
sublease of the associated base property and the BLM authorized officer 
must approve the transfer of the grazing permit or lease. Such 
transfers shall be for a minimum of three years unless it is determined 
by the authorized officer that a shorter period is consistent with 
management and resource condition objectives. The second is a pasturing 
agreement under which livestock not owned by the permittee or lessee, 
but under the control of the permittee or lessee, is allowed to graze 
on the public lands that are subject to a permit or lease. The BLM 
authorized officer must approve such pasturing agreements. Other types 
of subleasing arrangements will be considered unauthorized. A surcharge 
for the lease or sublease of public land grazing privileges associated 
with base property is not adopted in the final rule.
    The final rule provides for the collection of a surcharge for 
authorized pasturing activities associated with a Federal permit or 
lease. The final rule provides for a surcharge of 35 percent of the 
difference between the grazing fee per AUM rate and the prior year's 
private lease rate for the appropriate State as determined by the NASS 
for forage used by livestock owned by another party other than the 
permittee or lessee.
    The final rule excludes from the pasturing surcharge sons and 
daughters of permittees or lessees grazing livestock on public lands as 
part of an educational or youth program pertaining to livestock 
rangeland management, or when establishing a livestock herd in 
anticipation of assuming part or all of the family ranch operation.
    Section 4130.8-3, Service charge, is amended to include temporary 
nonuse and conservation use in the list of items for which BLM may 
assess a service charge. The service fee will offset the costs of 
processing such applications.
Subpart 4140--Prohibited Acts
    Section 4140.1, Prohibited acts on public lands, is amended to 
clarify that failure to make substantial use as authorized is a 
prohibited act, but that approved temporary nonuse, conservation use, 
and use temporarily suspended are not prohibited acts.
    This section also clarifies that it is prohibited to use public 
lands for grazing without a permit or lease and an annual grazing 
authorization. Furthermore, mere receipt of a grazing fee bill does not 
authorize grazing use of the range; the bill must actually be paid. 
(However, Sec. 4140.1(c) specifically provides for civil penalties only 
where violations, including unauthorized use resulting from payment by 
a check that is not honored, are repeated and willful.) The final rule 
also makes it clear that the permittee is responsible for controlling 
livestock so cattle do not [[Page 9905]] stray onto ``closed to range'' 
areas where grazing is prohibited by local laws, such as formally 
designated agriculture districts or municipalities. The final rule 
specifies that permittees or lessees are subject to penalties if they 
violate Federal or State laws pertaining to protection of bald eagles, 
endangered or threatened species, and wild horses and burros; the 
placement of poisonous bait or hazardous devices designed for the 
destruction of wildlife; application or storage of pesticides, 
herbicides or other hazardous materials; alteration of stream courses 
without authorization; pollution of water sources; illegal take; 
destruction or harassment of fish and wildlife; and illegal removal or 
destruction of archeological or cultural resources when public lands 
are involved or affected.
    Other changes in the section clarify that it is unlawful to harm 
livestock authorized to graze on public land, and to interfere with 
other lawful uses of the land. These provisions include a prohibition 
on obstructing free transit across public land.
    Finally, provisions which specify that violations subject to 
penalty under Sec. 4170.1-1 are limited to those where public land 
administered by the Bureau of Land Management is involved or affected, 
the violation is related to grazing use authorized by permit or lease, 
and the permittee or lessee has been convicted or otherwise found to be 
in violation of any of these laws or regulations by a court or by final 
determination of an agency charged with the administration of these 
laws or regulations, and no further appeals are outstanding, are moved 
from proposed Sec. 4170-1-3 and incorporated into this final section.
Subpart 4150--Unauthorized Grazing Use
    Section 4150.1, Violations, is reorganized for clarity and amended 
to add the requirement that the authorized officer must determine 
whether a violation is nonwillful, willful, or repeated willful. This 
clarifies subsequent sections of the rule.
    Section 4150.2, Notice and order to remove, is amended to provide 
authority for the authorized officer to exercise discretion in 
determining how nonwillful violations will be settled, close areas 
temporarily for a period of up to 12 months to specified classes and 
kinds of livestock in order to abate unauthorized use, and allow 
notices of closure to be issued as final decisions.
    Section 4150.3, Settlement, is amended to provide the authorized 
officer with the authority to consider nonmonetary settlement for 
unintentional incidental trespasses, in cases when the authorized 
officer determines the livestock operator is not at fault, when an 
insignificant amount of forage has been consumed, when damage to the 
public lands has not occurred, and when nonmonetary settlement is in 
the best interest of the United States. The method for determining 
settlement amounts is amended. Settlement for nonwillful violations 
equals the value of forage based on the monthly rate per AUM for 
pasturing livestock on private, nonirrigated land in the State in which 
the violation occurred.
Subpart 4160--Administrative Remedies
    Subpart 4160, Administrative remedies, is amended to improve 
organization, clarify administrative processes and requirements, 
provide for application of the Departmental rule located at Sec. 4.21 
of this title regarding effectiveness of a decision pending appeal and 
procedures for obtaining a stay, and provide for the issuance of 
decisions that take effect immediately.
    Section 4160.1, Proposed decisions, is amended to clarify that a 
final decision may be issued without first issuing a proposed decision 
when action under paragraph 4110.3-3(b) of this part is necessary to 
protect rangeland resources, or when action is taken under paragraph 
4150.2(d) to close an area to unauthorized grazing use. Other 
provisions clarify the information that must be contained in a proposed 
decision, and specify that decisions will be served by certified mail 
or personal delivery.
    Sections 4160.1-1 and 4160.1-2 are removed.
    Section 4160.3, Final decisions, is amended to clarify the process 
for filing an appeal and a petition for a stay of a final decision. It 
provides that decisions will be implemented at the end of the 30-day 
appeal period except where a petition for stay has been filed with OHA, 
in which case OHA will have up to 45 days to act on the petition. If 
the petition is granted, the decision will be stayed until resolution 
of the appeal.
    The final rule also clarifies the amount of grazing use that is 
authorized when a decision has been stayed by OHA. Where an appellant 
has had no authorized grazing use during the preceding year, the 
authorized grazing use must be consistent with the decision, pending a 
final determination on appeal. Where a decision proposes a change in 
the amount of authorized grazing use, the authorized grazing use during 
the time an appeal is pending will not exceed the appellant's 
previously authorized use.
    Finally, this section provides authority to the authorized officer 
for making decisions effective immediately, unless a stay is granted, 
when it is necessary to protect rangeland resources under the standards 
imposed by Sec. 4110.3-3(b), or to facilitate abatement of unauthorized 
use by closing an area temporarily to grazing use under Sec. 4150.2 of 
this part.
    Section 4160.4, Appeals, provides instructions regarding the filing 
of appeals and petitions to stay decisions. When a final decision is 
issued, any person whose interest has been adversely affected may file 
an appeal and a petition for stay of the decision within 30 days from 
the date of receipt of a final decision, or 30 days from the date a 
proposed decision becomes final in the absence of a protest. Under the 
process of Sec. 4.21 of this title, OHA is allowed 45 days from the end 
of the appeal period to review a petition for stay.
Subpart 4170--Penalties
    Section 4170.1-1, Penalty for violations, is amended to provide for 
a penalty for unauthorized leasing and subleasing in the amount of two 
times the private grazing land lease rate for the state in which the 
violation occurred as supplied annually by the NASS, as well as 
reasonable expenses incurred by the United States in detecting, 
investigating, and resolving the violation.
    Section 4170.1-2, Failure to use, is amended to provide that if a 
permittee or lessee has, for 2 consecutive grazing fee years, failed to 
make substantial use as authorized in the lease or permit, or has 
failed to maintain or use water base property in the grazing operation, 
the authorized officer, after consultation with the permittee or 
lessee, may cancel whatever amount of permitted use the permittee or 
lessee has failed to use.
    Section 4170.1-3, Federal or State animal control and environmental 
protection or resource conservation regulations or laws, is removed. 
The substance of this section is incorporated in Sec. 4140.1(c) of this 
final rule.
    Section 4170.2-1, Penal provisions under TGA, is revised slightly 
to specify that any person who willfully commits an act prohibited 
under Sec. 4140.1(b), or who willfully violates approved special rules 
and regulations, is punishable by a fine of not more than $500.
    Section 4170.2-2, Penal provisions under FLPMA, is amended to adopt 
the alternative fines provisions of Title 18 U.S.C. section 3571. 
[[Page 9906]] 
Subpart 4180--Fundamentals of Rangeland Health and Standards and 
Guidelines for Grazing Administration
    Section 4180.1, The fundamentals of rangeland health (titled 
National Requirements for Grazing Administration in the proposed rule) 
for grazing administration, are added to establish fundamental 
requirements for achieving functional, healthy public rangelands. These 
fundamentals address the necessary physical components of functional 
watersheds, ecological processes required for healthy biotic 
communities, water quality standards, and habitat for threatened or 
endangered species or other species of special interest.
    Where it is determined that existing grazing management needs to be 
modified to ensure that the conditions of healthy rangelands set forth 
in Sec. 4180.1, Fundamentals of rangeland health, are met or 
significant progress is being made to meet the fundamentals, the 
authorized officer must take appropriate action as soon as practical, 
but not later than the start of the next grazing season. This may 
include actions such as reducing livestock stocking rates, adjusting 
the season or duration of livestock use, or modifying or relocating 
range improvements.
    Section 4180.2, Standards and guidelines for grazing 
administration, is added to direct that standards and guidelines will 
be developed for an entire State or for an area encompassing portions 
of more than one State, except where the geophysical or vegetal 
character of an area is unique and the health of the rangelands will 
not be ensured by using standards and guidelines developed for a larger 
geographical area. The geographical area covered will be determined by 
BLM State Directors in consultation with affected RACs. Once standards 
and guidelines are in effect, the authorized officer shall take 
appropriate action as soon as practical, but not later than the start 
of the next grazing year upon determining that existing grazing 
management practices are significant factors in failing to ensure 
significant progress toward the fulfillment of the standards and toward 
conformance with the guidelines. The preparation of standards and 
guidelines will involve public participation and consultation with 
RACs, Indian tribes, and Federal agencies responsible for the 
management of lands within the affected area.
    Section 4180.2(d) lists factors that, at a minimum, must be 
addressed in the development of State or regional standards. The 
guiding principles for the development of standards pertain to the 
factors needed to help achieve rangeland health. More specifically, the 
factors relate to watershed function, threatened or endangered species 
and candidate species, habitat for native plant and animal populations, 
water quality and the distribution of nutrients and energy flow. 
Section 4180.2(e) lists guiding principles to be addressed in the 
development of guidelines.
    The rule provides that where State or regional standards and 
guidelines are not completed and in effect by February 12, 1997, the 
fallback standards and guidelines included in the text of the rule will 
be implemented. The fallback standards and guidelines address largely 
the same factors that are provided in the guiding principles for the 
development of the State or regional standards and guidelines. The 
fallback standards include more detail regarding the conditions that 
would exist under each of the factors when rangelands are in a healthy, 
functional condition than do the guiding principles presented in 
Sec. 4180.2(d). Similarly, the fallback guidelines include grazing 
management practices while the guiding principles of Sec. 4180.2(e) 
refer more generally to the types of concerns to be addressed in the 
development of State or regional guidelines.
    Standards and guidelines will be applied through terms and 
conditions of grazing permits, leases and other authorizations, through 
AMPs and other activity plans, and through the conditions of 
cooperative range improvement agreements and range improvement permits. 
The Department recognizes that rangelands within a given area may be in 
functional, healthy conditions even though individual isolated sites do 
not meet the standards or guidelines. However, the Department believes 
that general failure to meet the benchmarks across a broader area, such 
as a typical BLM grazing pasture or BLM allotment, would be reliable 
evidence that the area is not in healthy, functional condition.

IV. General Comments

    Numerous comments addressed the overall rulemaking. These comments 
asserted several central themes which crosscut different sections of 
the rulemaking. Accordingly, BLM has decided to address these central 
issues in this portion of the preamble. Within the context of such 
discussion, particular sections of the proposed and final rules will be 
referred to as necessary. Nevertheless, in these responses, BLM focuses 
upon central issues that were of concern to commenters throughout the 
proposal. Comments that were more specific to a particular section are 
discussed in the following section entitled Section-by-Section Analysis 
and Responses to Public Comments.

Rangeland Reform Is Not Needed

    Some commenters took the position that general rangeland 
improvement is unnecessary. Their view was that current legislation, 
regulations, and procedures provide enough latitude and capability for 
the government to administer the public rangelands properly, therefore 
there is no justification for designing and implementing the rangeland 
improvement program. They stated that the initiative should be dropped 
or abandoned immediately. They asserted that the government has not 
shown that the proposal will benefit the western range and many of the 
elements of the rule are more appropriately dealt with in manuals, 
instruction memos, and policy guidance.
    In addition, the comment was often made that the National Research 
Council study commissioned by the National Academy of Sciences reports 
that the conditions of rangeland health in the West are largely 
unknown. If the conditions are unknown, stated the commenters, it is 
impossible to demonstrate a need for the proposed rule. Some commenters 
stated that the entire proposal and EIS were politically driven and did 
not relate to the resource protection issues of public land 
administration.
    The Department believes that there is a need for changes in public 
rangeland grazing administration. The Department has been collecting 
data on the condition of the rangelands for over 60 years. The 
Department does have considerable information on all BLM lands, based 
on these years of data collection, although the same level of detailed 
knowledge may not be available on every allotment. The information 
available is sufficient to identify trends in rangeland health across 
the western rangelands.
    The status and trends of the western rangelands upon passage of the 
Public Rangelands Improvement Act (PRIA) in 1978 indicated that western 
rangelands were producing below their potential and that rangelands 
would remain in unsatisfactory condition or decline further unless the 
unsatisfactory conditions could be addressed and corrected by intensive 
public rangelands maintenance, management and improvement. Congress 
articulated its view in PRIA that such unsatisfactory conditions on 
public rangeland present a risk for soil loss, siltation, 
[[Page 9907]] desertification, water loss, loss of wildlife and fish 
habitat, loss of forage for livestock and other grazing animals, 
degradation of water quality, flood danger, and threats to local 
economies. In addition, BLM National Public Lands Advisory Council 
recommended in 1992 that ``* * * foremost consideration needs to be 
given to protecting the basic components of soil, water and vegetation. 
Without assurances for the future well-being of these basic natural 
resources, there is little to squabble about.''
    BLM's research has concluded that in the long term under current 
management practices 22 million acres of BLM uplands would be 
functioning but susceptible to degradation, and about 20 million acres 
would be nonfunctioning. The vegetation in some areas would change from 
potential natural communities to mid seral or late seral stages because 
of overgrazing, fire, or drought. Conditions would be worse in riparian 
and wetland areas. The overall trends would be a slow, steady, long-
term decline in conditions. Approximately 466,000 acres of riparian 
areas (43 percent of the total) on BLM land would be functioning but 
susceptible to degradation, and 219,000 acres (21 percent) would be 
nonfunctioning. The results of these studies are reported in detail in 
the FEIS on this rulemaking. These studies show that without some 
changes in the current program conditions in critical riparian areas 
would continue to decline.
    The program of rangeland improvement responds to the needs of BLM 
to ensure the efficient administration and management of public 
rangelands, as well as to the findings expressed by Congress most 
recently in PRIA, the National Public Lands Advisory Council, and the 
Western Governors' Association. The program has included and will 
continue to include significant public involvement. The FEIS associated 
with the rulemaking examined several alternatives, including continuing 
grazing administration under current rules and procedures. The impact 
analysis in Chapter 4 of the EIS demonstrates there would be 
substantial improvement in riparian areas, uplands, and only slightly 
reduced forage availability under the alternative adopted today when 
compared to a continuation of current management.
    Some commenters asserted that rangeland improvement is unnecessary 
because it will not improve the condition of the public rangelands. The 
Department disagrees. Commenters argued that few permittees or lessees 
are poor stewards of the public rangelands. They stated that the 
program will alienate many conscientious ranchers. The commenters 
asserted that the agencies and public may lose the service and support 
of these users in maintaining and improving the conditions of the 
public rangelands, and that rangeland conditions are likely to degrade. 
Therefore, they claimed, the initiative should be abandoned. However, 
the Department believes that improving administration of public 
rangelands will improve their condition, which will benefit all uses, 
including livestock grazing. This is discussed more fully in the FEIS 
on this rulemaking.
    The standards and guidelines in the final rule are aimed at 
improving the ecological health of the rangelands. The analysis in the 
FEIS indicates there will be significant improvements.
    The Department recognizes that the majority of public land grazing 
permittees and lessees are conscientious stewards. However, it also 
notes that line managers need clear authority and guidance to help 
correct problems in grazing use and to improve the degraded condition 
of some areas expeditiously. This program is intended to facilitate 
cooperation between BLM employees and public land users in making those 
improvements. Also, by making BLM and Forest Service management more 
similar, it will be easier for permittees and lessees to comply with 
land use requirements. Good stewards will not be adversely affected by 
this initiative and will have an opportunity to work with the 
Department to sustain the economic vigor of their industry while 
maintaining or improving the ecological health of the public lands. The 
Department recognizes that it is in the best interests of the users, 
the public, and BLM to cooperate in meeting these objectives.
    Commenters also stated that the Department has gone through the 
formalities of public input but has failed to make public the findings 
and statistics of the letters and meetings. During development of the 
final rule, the Department considered all comments, and as a result has 
modified the language of the proposed rule. All comments received are 
available for review in BLM's administrative record. The section-by-
section portion of this preamble explains the changes made to the 
proposed rule in this final rule.

Rangeland Improvement Is Inconsistent With Current Laws

    Conflicts with TGA, FLPMA, and other laws. A number of comments 
questioned whether the proposed amendments to the grazing rule conflict 
directly with TGA, FLPMA, PRIA and other related Federal laws. The 
BLM's main statutory authorities for regulating grazing on the public 
lands are TGA, FLPMA and PRIA. In TGA Congress directed the Secretary 
to bring order to the management of the public rangelands and improve 
range conditions.
    Specifically, Section 2 of TGA provides:

    The Secretary of the Interior shall make provision for the 
protection, administration, regulation, and improvement of such 
grazing districts * * * and he shall make such rules and regulations 
* * * and do any and all things necessary to accomplish the purposes 
of this Act * * * namely to regulate their occupancy and use, to 
preserve the land and its resources from destruction or unnecessary 
injury, to provide for the orderly use, improvement, and development 
of the range * * *.

    The TGA authorizes the Secretary to, among other things, establish 
fees, issue permits and leases and prescribe terms and conditions for 
them, issue range improvement permits, and provide for local hearings 
on appeals. The emphasis on disposal of Federal lands changed with the 
Classification and Multiple Use Act in 1964 and FLPMA in 1976. In FLPMA 
Congress articulated the national policy that ``the public lands be 
retained in Federal ownership.'' 43 U.S.C. 1701. FLPMA also directs 
that land management be on the basis of multiple use and sustained 
yield, thus clarifying that other uses of public lands are equally 
appropriate. FLPMA did not repeal TGA, but did provide additional 
management direction. For example, section 402 of FLPMA provides that 
grazing permits and leases shall be:

    [S]ubject to such terms and conditions the Secretary concerned 
deems appropriate and consistent with the governing law, including, 
but not limited to the authority of the Secretary concerned to 
cancel, suspend, or modify a grazing permit or lease for any 
violation of a grazing regulation or of any term or condition of 
such grazing permit or lease.

    In 1978 Congress again focused on the public rangelands when it 
passed PRIA. In Section 2 of that Act Congress found that ``vast 
segments'' of the public rangelands were ``producing less than their 
potential for livestock, wildlife habitat, recreation, forage and water 
and soil conservation benefits,'' and so were considered to be in an 
unsatisfactory condition.'' Congress went on in Section 2 to reaffirm a 
national commitment to ``manage, maintain and improve the condition of 
the public rangelands so that they become as productive as feasible for 
all rangeland values.'' The [[Page 9908]] Department has concluded that 
the amendments to the grazing rule are within the statutory authority 
granted by Congress to the Secretary to administer the public lands 
under TGA, FLPMA, PRIA, and related acts.
    NEPA issues. A number of commenters asserted that the draft EIS was 
inadequate. The commenters asserted that more local EISs were required. 
The FEIS prepared for the rangeland improvement program describes the 
environmental impacts that would result from several proposed 
alternatives for managing BLM administered rangeland and for changing 
the fees charged to permittees and lessees. Any subsequent narrower 
decisions, such as the state or regional standards and guidelines or, 
if necessary, more local determinations, will tier to the broader 
national FEIS. Tiering is appropriate when a subsequent EIS or 
environmental assessment is prepared on an action included in the 
overall EIS, in this case, the FEIS prepared for the overall program. 
Additional NEPA analysis will be conducted as appropriate as local or 
regional decisions are made.
    FACA Issues. A number of commenters stated that some of the 
proposals relating to RACs, especially the provisions regarding task 
forces of those councils, were violations of FACA. The Department 
disagrees. The final rules adopted today provide that any subcommittee 
will report directly to the chartered advisory council. The advisory 
council will then independently review the input from the subcommittee 
prior to presenting any consensus advice to the agency. As long as 
subcommittees report to the agency through the chartered advisory 
committee, and do not provide advice directly to the agency, their 
operation is consistent with the requirements of FACA.
    Takings. Some commenters asserted that various sections of the 
proposed rule raise the possibility of a ``taking'' of private property 
rights without ``just compensation.'' The United States Constitution 
gives Congress the ``Power to dispose of and make all needful Rules and 
Regulations respecting the Territory or other Property belonging to the 
United States.'' Article IV, Sec. 3, cl. 2. The power includes 
authority to control the use and occupancy of Federal lands, to protect 
them from trespass and injury and to prescribe the conditions upon 
which others may obtain rights in them. Utah Power & Light Co. v. 
United States, 243 U.S. 389, 405 (1917).
    In a series of laws, Congress has delegated primary responsibility 
and authority to manage livestock grazing on public lands to the 
Secretary, acting through BLM. The basic laws are TGA, FLPMA and PRIA. 
In authorizing the issuance of grazing permits in TGA, Congress 
expressly provided that the ``issuance of a permit * * * shall not 
create any right, title, interest, or estate in or to the [public] 
lands.'' 43 U.S.C. 315b. In FLPMA, Congress authorized the Secretary to 
``cancel, suspend, or modify a grazing permit or lease, in whole or in 
part, pursuant to the terms and conditions'' of the permit or lease. 43 
U.S.C. Sec. 1752(a). The same section also authorizes the Secretary to 
``cancel or suspend a grazing permit or lease for any violation of a 
grazing rule or of any term or condition of such permit or lease.'' 
These statutes are implemented by BLM's regulations at 43 CFR Part 4100 
et seq., including the amendments adopted here.
    The Fifth Amendment to the United States Constitution provides in 
relevant part that no person shall be denied property without due 
process of law, and no private property shall be taken for public use, 
without just compensation. This Amendment protects private property. 
Because Congress made clear in TGA that grazing permits create no 
private property interest in public lands, the Fifth Amendment's 
protection is not implicated. The Courts have long held that no taking 
of private property occurs in the course of lawful administration and 
regulation of Federal grazing lands because the grazing permit 
represents a benefit or privilege bestowed by the Federal government 
upon a private individual and not a compensable property interest under 
the Fifth Amendment.
    Thus, an authorized officer's decision to change permitted use 
(Sec. 4110.3), decrease permitted use (Sec. 4110.3-2), implement a 
reduction in permitted use (Sec. 4110.3-3), decrease land acreage 
(Sec. 4110.4-2), approve an AMP (Sec. 4120.2), or approve a cooperative 
range improvement agreement (Sec. 4120.3-2) does not give rise to a 
takings claim.
    Some commenters asserted that permittees and lessees should be 
compensated for any indirect adverse impact that cancellation, 
nonrenewal, suspension or modification of grazing permits might have on 
the permittee's base property. While base property is private property 
protected by the Fifth Amendment, the United States Supreme Court, in 
an opinion by Chief Justice Rehnquist, specifically considered and 
rejected the argument that the increment of value added to a private 
ranch by a public land grazing permit is a compensable property 
interest, United States v. Fuller, 409 U.S. 488 (1973).
    Even if, in other words, cancellation, nonrenewal, suspension, or 
changes in the terms and conditions of a grazing permit might have some 
negative effect on the value of the base property, the Supreme Court 
has made clear this is not a ``taking.''
    Some commenters asserted that the proposal to clarify title to 
future permanent range improvements on the public lands in the name of 
the United States constitutes a ``taking'' of private property. The BLM 
has concluded that proper management of the public lands requires title 
to permanent improvements on the public lands to remain with the land 
and be held in the name of the United States. This clarification brings 
BLM in line with Forest Service policy. This provision is prospective 
in application; that is, it will not affect ownership or rights that 
may currently be held in a range improvement. In FLPMA, Congress 
provided for limited compensation for permanent improvements when a 
permit or lease is cancelled in whole or in part, in order to devote 
the public lands to another public purpose, including disposal. 43 
U.S.C. 1752(g). To be faithful to this Congressional directive, the 
amendment requires the authorized officer to retain a record of 
permittee or lessee contributions to specific authorized range 
improvement projects. This record will be available for use in 
determining any compensation owed the permittee or lessee in the event 
a permit or lease is cancelled in order to devote the public lands to 
another public purpose.
    Comments were also received on a proposed amendment to require 
permittees or lessees, as a term or condition of a grazing permit or 
lease, to allow BLM reasonable administrative access across non-Federal 
lands under its control for the orderly management and protection of 
the public lands. Sometimes, because of the location and configuration 
of public and non-Federal lands, BLM personnel need reasonable access 
across non-Federal lands under the control of permittee or lessee to 
access Federal land in order to carry out its management 
responsibilities on public land. Providing for such access is a 
reasonable condition to attach to the permit or lease authorizing 
livestock grazing on public lands.
    Administrative appeals procedures. Many commenters raised questions 
of fairness and appeals; many of these commenters referred to these as 
``due process'' issues. The existing administrative and applicable 
judicial protections afforded permittees and [[Page 9909]] lessees 
pertaining to the issuance, modification, suspension, cancellation, 
renewal and general administration of grazing permits and leases will 
continue. For example, some commenters read the proposal to amend 
Sec. 4.477 to require a permittee to choose between the evidentiary 
hearing provided by TGA and a stay of a final decision. A permittee 
will not have to choose between an appeal and requesting a stay. Both 
will be available.
    The provisions adopted today make the procedures for appealing a 
final decision consistent with standard Departmental procedures for 
other types of appeals. Any person whose interest is adversely affected 
by a decision of the authorized officer has full appeal rights. 
Standing to maintain an appeal will continue to be determined by OHA. 
Except in situations where immediate action is needed for resource 
protection in accordance with the standards set forth in Secs. 4110.3-
3(b) and 4150.2(d), BLM will issue proposed decisions, which may be 
protested. Except in situations where immediate action is needed for 
resource protection in accordance with the standards set for in 
Secs. 4110.3-3(b) and 4150.2(d), no decisions will be effective until 
after the 30-day appeal period. The applicant can also file a petition 
for a stay of the decision while final determinations on appeal are 
being considered. If a petition for a stay is filed along with the 
appeal, the decision may be temporarily stayed for up to 45 days after 
the end of the 30-day period for filing an appeal while the petition is 
being considered. If a stay is granted, it will suspend the effect of 
the decision until final disposition of the appeal. Finally, parties 
have the option to seek administrative or judicial review of a decision 
that is put into immediate effect.

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

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

Section 4.477  Effect of Decision Suspended During Appeal
    The proposed rule would have revised the heading of this section to 
reflect that grazing decisions would no longer automatically be 
suspended when an appeal is filed as provided in the proposed revision 
of 43 CFR subpart 4160, and would also have removed other references to 
suspension of the decision of the authorized officer upon appeal.
    Comments on this section addressed several major issues. Some 
commenters asserted that the proposal did not provide adequate 
opportunity for administrative appeals and violated various statutory 
provisions. Some read the proposal to require a permittee to choose 
between the evidentiary hearing provided by TGA and a stay of a final 
decision. Other commenters were concerned about possible fiscal impacts 
of the provision. Other commenters stated that the proposed provision 
would speed implementation of needed grazing decisions.
    The provisions adopted today make the procedures for appealing a 
final decision consistent with standard Department procedures for other 
types of appeals. These procedures are detailed in regulations of the 
Department's OHA, Title 43 of the Code of Federal Regulations, Part 4, 
Subpart B. Any person whose interest is adversely affected by a 
decision of the authorized officer still has full appeal rights. Except 
in situations where immediate action is needed for resource protection 
in accordance with the standards set forth in Secs. 4110.3-3(b) and 
4150.2(d), decisions will not be in effect until after the 30-day 
appeal period. An appellant can also file a petition for a stay of the 
decision while final determinations on appeal are being considered. If 
a petition for a stay is filed along with the appeal, the decision will 
be temporarily stayed for up to 45 days after the end of the period for 
filing an appeal (for a total of up to 75 days) while the petition is 
being considered. If a stay is granted, it will suspend the effect of 
the decision until final disposition of the appeal.
    The provision will not require an appellant to choose between this 
process and the hearing on the evidence granted by TGA. The hearings 
referenced in this provision do include a review of the evidence on the 
case. A permittee will not have to choose between having such a hearing 
and requesting an appeal. Both will be available.
    In accordance with the above discussion, the Department has decided 
to adopt the provision as proposed. The phrase ``pertaining to the 
period during which a final decision will not be in effect'' is added 
to clarify that the reference to Sec. 4.21(a) relates to those specific 
provisions.

Part 1780--Cooperative Relations

Section 1784.0-5  Definitions
    The proposed section would have replaced the term ``authorized 
representative'' with ``designated Federal Officer'' to make the 
terminology of the rule more consistent with the terminology of FACA 
and 41 CFR 101-6.1019.
    The Department received very few comments on this initial section 
of the discussion of cooperative relations. The most common issue 
raised was the abolition of grazing advisory boards (GABs). This issue 
is covered below under the discussion of Sec. 1784.6-5.
    Some comments suggested that the change from ``authorized 
representative'' to ``designated Federal officer'' was designed to give 
greater authority and stature to Federal personnel.
    Each RAC or other advisory committee will have a ``designated 
officer of the Federal Government,'' as required by section 10(d) of 
FACA, who will chair or attend each meeting. The regulations 
implementing FACA, 41 CFR subpart 101, use the term ``designated 
Federal officer'' and prescribe the authority and responsibility of 
that position. As required by FACA, this officer will call the meetings 
of the committees and will develop the agendas of the meetings.
    In accordance with the above discussion, the Department has 
concluded that the final rule will include these changes as proposed, 
because it intends that cooperative relations be conducted in 
conjunction with FACA and the language and requirements of this final 
rule should be consistent with FACA.
Section 1784.2-1  Composition
    Under the proposed rule, this section would have been amended by 
eliminating paragraph (b), and amending existing paragraph (c), which 
is redesignated new paragraph (b). Previously, paragraph (b) 
established an eligibility requirement for grazing advisory board 
members. This requirement would no longer have been necessary with the 
discontinuance of the grazing advisory boards.
    New paragraph (b) would have added to existing education 
requirements for committee membership new requirements that individuals 
can qualify to serve on advisory committees if they have experience or 
knowledge of the geographic area covered by the committee, and they 
have demonstrated a commitment to collaborate in seeking solutions to 
resource management issues.
    Many commenters expressed confusion about the Department's use of 
the terms ``board,'' ``council'' and ``committee.'' In this final rule, 
``council'' is used to refer exclusively to the RACs. ``Committee'' is 
used in Secs. 1784.0-5, 1784.2-1, 1784.2-2, 1784.3, 1784.5-1, and 
1784.5-2. These [[Page 9910]] sections have application to all types of 
advisory committees, not just RACs. A RAC is a type of advisory 
committee. Sections 1784.6-1 and 1784.6-2 concern RACs. ``Board'' is 
not used in this final rule.
    Many commenters on this section supported the concept of broadening 
membership on the councils. Commenters noted that because useful 
knowledge and expertise is widely distributed in society, membership of 
advisory committees should be broadened to take advantage of this.
    Some commenters specifically objected to changing this section. 
There were a number of comments about the specific composition of the 
councils. Most of these comments were also addressed to subsequent 
sections, especially Sec. 1784.6-1. Since these comments related to the 
Department's proposals concerning the makeup of the RACs, they are 
discussed under that section, below.
    Some commenters made an identical suggestion to change the last 
clause of Sec. 1784.2-1(b) by striking the requirement that council 
members have ``demonstrated a commitment to collaborate in seeking 
solutions to resource management issues.'' One comment stated that 
commitment without necessary concurrent expertise is useless, and that 
accommodation for regional differences in a broad range of specific 
information on each area should be a necessity. A number of commenters 
questioned who or what should determine adequate experience, and others 
suggested a better definition was needed.
    A commitment to collaborative decisionmaking is critical to the 
success of these committees. The Department has concluded that the 
final rule will adopt the proposed language requiring both appropriate 
expertise and a commitment to collaborative decisionmaking, because 
such a balance is the best way to assure the success of any advisory 
committee.
    FACA requires that the head of an agency appoint members to any 
committee providing consensus advice to the agency. In the case of 
RACs, the Secretary must appoint members. In making final selections of 
RAC members, the Department will make determinations as to what is 
adequate experience. Since geographic areas covered by individual RACs 
will be highly variable it would be difficult to define this term too 
narrowly without unduly limiting the flexibility which will be needed 
to ensure that each council includes members who will represent a broad 
range of interests and make a substantive contribution to the 
committee's deliberations.
    In accordance with the above discussion, the Department has decided 
to adopt the provision as proposed.
Section 1784.2-2  Avoidance of Conflict of Interest
    In the proposal, paragraph (a)(1) of this section would have been 
amended to allow permittees and lessees to serve on any advisory 
committees, including RACs and their subgroups. This change would have 
been made to ensure that permittees and lessees, as important 
stakeholders in the management of public lands, could provide input to 
advisory committees so that the committees would have been able to 
develop recommendations based on direct community and user input. 
Paragraph (b) would have clarified that no advisory committee member 
could have participated in any matter in which the member had a direct 
interest. The proposal included a new paragraph (c), which would have 
provided that members of RACs have to disclose their direct or indirect 
interest in Federal grazing permits or leases administered by BLM.
    The Department received many comments on this section. Many 
commenters believed the conflict of interest provisions applied only to 
ranchers, and stated that such provisions were unfair and should apply 
to all members of the councils. Many commenters spoke to the membership 
of environmentalists on the councils. Commenters asserted that 
environmental groups have a direct conflict of interest. Some asserted 
that all users of specific areas have an interest in that area, and 
should be excluded from serving on a council studying the situation in 
that area. Commenters stated that allowing members of national or 
regional environmental groups to serve violated the local concept of 
the RACs.
    A number of commenters asserted that permittees or lessees who were 
involved in an issue should be involved in the process, so they would 
have ownership of or support the solution developed in a RAC. Others 
suggested that since permittees and lessees are bound by the terms and 
conditions of their permits or leases, and by the provisions of AMPs, 
it would seem only proper to allow permittees or lessees on a council 
to provide input into the management decisions which will affect that 
grazing allotment. One comment suggested that individuals with an 
interest in an issue should be allowed to participate in the 
discussions of the issue, but should be excluded from any voting 
required.
    Another commenter provided a suggested definition of indirect 
interest that includes any situation in which outside interests, of 
whatever nature, might lead to substantial interference with or 
disregard for a duty of serving on a grazing council or committee.
    Commenters challenged the legal basis for a conflict of interest 
provision. They asserted that if it is based on the Ethics in 
Government Act, that the law is limited to Federal employees or paid 
advisors, and that ethical standards under Federal law are not limited 
to financial gain but include the use of one's official position to 
promote a personal viewpoint.
    ``Conflict of interest'' is an accepted legal concept that 
generally refers to ``a clash between public interest and the private 
pecuniary interest of the individual concerned.'' (Black's Law 
Dictionary, 5th Edition, 1979, p. 271). The concept applies to 
situations where a committee member, who is serving a public interest, 
has private financial interests that might conflict with his or her 
public role. This would include holding a permit that might be impacted 
by the deliberations of a RAC.
    The provision does not apply only to permittees or lessees. It 
applies to all advisory committee members. The provision does not apply 
to situations in which an individual's interest in the deliberations of 
a committee is not financial. The provision does not refer to cases 
where an individual has a membership in an organization that is in 
litigation with the government, unless the individual has a pecuniary 
interest in the outcome of the litigation. Furthermore, it does not 
refer to cases where an individual might develop reports for another 
organization that in turn might influence agency decisions.
    Permittees and lessees were specifically mentioned in this 
provision to draw attention to the fact that the proposed rule 
broadened the opportunities for participation by such persons. Under 
the previous regulations at Sec. 1784.2-2, permittees and lessees 
normally would have been prohibited from serving on any committees 
advising BLM except for grazing advisory boards. Under the provision 
adopted today, permittees and lessees can participate on the broader 
based RACs or on any other advisory committee.
    The concepts of ``direct'' and ``indirect'' interest refer back to 
the basic principle of conflict of interest, and refer to financial 
matters. Both terms are defined in common usage. ``Direct'' interest 
refers to an interest [[Page 9911]] which is certain, not in doubt or 
contingent on some other factor. ``Indirect'' interest refers to an 
interest contingent on another factor, or through a third party. In the 
case of permittees, an indirect interest will generally be an interest 
in a permit or lease that is through a third party, such as a child, 
spouse, business partner, or other affiliate.
    The rule as finalized allows permittees and lessees with financial 
interests to serve on committees, thus broadening the base of advice 
available to the Department. This provision simply requires disclosure 
of interests by advisory committee members, and prohibits them from 
participating in specific matters in which they have such interests. It 
does not prevent persons with a legal interest from serving on 
committees.
    Comments concerning application of conflict of interest provisions 
caused the Department to reexamine the types of interests that would 
have to be disclosed by committee members. In the final rule, as 
detailed below, the Department has expanded the list of interests that 
might be held by persons who might serve on RACs and which must be 
disclosed.
    In the final rule, the Department has sought to correct any 
confusion between the terms ``council,'' ``committee,'' and ``board,'' 
as discussed at Sec. 1784.2-1. Conflict of interest provisions apply to 
all advisory committees that advise the Department as well as to the 
RACs.
    In accordance with the above discussion, the Department has 
concluded that the final rule should adopt a modified version of the 
proposed rule. Modifications have been made to ensure consistency in 
the use of the terms ``council'' and ``committee,'' and for consistency 
with other changes to the proposal regarding the structure of RACs, 
discussed below under Secs. 1784.6-1 and 6-2. Additionally, the word 
``multiple'' is eliminated in this section, and in all subsequent 
sections. The Department has made this decision to simplify the name of 
the councils.
    In final paragraph (c), the phrase ``leases, licenses, permits, 
contracts, or claims which involve lands or resources, or in any 
litigation which involve lands or resources administered by the Bureau 
of Land Management,'' is substituted for the phrase ``Federal grazing 
permits or leases.'' This last change is made for consistency with the 
principle that this provision applies to all types of financial 
interests. The phrase adopted is consistent with that in existing 
paragraph (a) of this section. While persons who hold such interests 
will still not normally be allowed to serve on advisory committees, 
except for the general exception introduced by this rule for grazing 
permittees or lessees, under special circumstances such a person may 
serve on a committee. In such case, the person would be required to 
disclose his or her interests.
Section 1784.3  Member Service
    The proposed rule would have established that appointments to 
advisory committees would have been for two-year terms unless otherwise 
specified in the charter. Specific references to grazing advisory 
board, district advisory council and National Public Lands Advisory 
Council appointments, terms and election procedures, would have been 
removed.
    Also, the provisions for reimbursement of committee members' travel 
and per diem expenses would have been modified to make clear that 
individuals selected by committees to provide input, but who themselves 
are not appointed committee members, would not have been eligible for 
reimbursement. This provision was necessary to limit costs.
    Several comments were received on the charters and chartering 
process for advisory committees. Some comments indicated that as 
proposed, the changes would create the need for a new charter for each 
committee which would result in a lack of continuity in committee 
functioning.
    Today's action amends the general advisory committee regulations 
found at 43 CFR Subpart 1784. These general regulations contain 
standards and procedures for the creation, operation and termination of 
advisory committees to advise the Secretary and BLM on matters relating 
to public lands and resources under the administrative jurisdiction of 
BLM. The proposed amendments must comply with the requirements of FACA. 
Thus the Department's discretion is limited by the terms of FACA.
    FACA directs that advisory committees shall terminate within two 
years of establishment, unless renewed. At the time of renewal a new 
charter must be filed. The Department expects that charters will look 
substantially the same each time they are renewed, although changes may 
be made if experience suggests revisions are needed. The charter will 
meet the requirements of FACA, but will be relatively general in 
nature. Charters will include provisions such as council purpose and 
responsibilities, membership requirements, and terms of appointments. 
Bylaws may be prepared by individual councils if needed to provide 
additional procedural guidance.
    Many comments were received on membership service and tenure. 
Comments included the following: a public official's term on a 
committee should coincide with the term of office, vacancies should be 
filled in the same manner as positions were originally filled, members 
should be selected on the basis of merit, and membership should be 
staggered to achieve continuity. Several comments suggested that 
members should serve for longer than two years so they would become 
familiar with issues. Some comments indicated that two-year limits 
should be established. Other comments supported the view that charters 
should allow lifetime membership. Some comments suggested that members 
should be elected. Some of these comments suggested that members should 
be elected by grazing permittees and lessees.
    Under FACA, the Department has some discretion regarding the terms 
of service for members. Generally, member terms are coterminous with 
the term of the charter. The Department intends to follow this general 
practice with RACs, except where special circumstances require 
otherwise. For example, the Department intends to appoint initial 
members to staggered terms, so members' terms will not all terminate in 
the same year. This ensures that there will always be experienced 
members on a council. The Department expects that some members will be 
reappointed, providing additional continuity to the councils. These 
practices have been used successfully in the past.
    As explained in the discussion of Sec. 1784.2-1, appointments to 
the advisory councils will be by the Secretary, as required by FACA. 
Secretarial appointment is also required by FLPMA. The Department will 
seek nominations from Governors, interested groups and private 
citizens. Members will qualify to serve on advisory committees because 
their education, training, or experience enables them to give informed 
and objective advice on matters of interest to the committee. Decisions 
about replacing members appointed to fill the position of the local 
elected official when the member's elective term expires will be made 
on a case-by-case basis. Existing paragraph (b)(2), which by today's 
action is redesignated (a)(2), provides for filling vacancies occurring 
by reason of removal, resignation, death, or departure from elective 
office. Such vacancies are to be filled using the same method by which 
the original appointment was made. Under existing 
[[Page 9912]] paragraph (b)(1), which by today's action is redesignated 
(a)(1), BLM must replace members of committees who are serving in the 
elected official position, and who leave office. It may be possible in 
some cases for the member to continue to serve on the council in 
another appointed position.
    Comments were received both for and against BLM payment of travel 
and per diem for council members. Some comments suggested that members 
should volunteer their time and expenses and some comments suggested 
that non-resident members should pay for their own travel. Other 
comments questioned whether advisory committee costs would escalate 
over time and whether councils would be in session all of the time. One 
comment questioned why members of resource area councils should be 
reimbursed, but not rangeland resource teams or technical review teams, 
and suggested that BLM establish technical teams and reimburse the 
technical team members.
    FLPMA (43 U.S.C. Sec. 1739), as amended by PRIA (43 U.S.C. 1908), 
requires establishment of advisory committees representative of major 
citizen interests concerned with resource management planning or the 
management of public lands. The RACs will fulfill this requirement. 
Section 309 of FLPMA provides that ``members of advisory councils shall 
serve without pay, except travel and per diem will be paid each member 
* * *'' Regulations at 43 CFR subpart 101, Federal Advisory Committee 
Management, also allow payment of travel expenses and per diem.
    The objective of RACs established under these regulations is to 
make available to the Department and BLM the advice of knowledgeable 
citizens and public officials regarding both the formulation of 
operating standards and guidelines and the preparation and execution of 
plans and programs for the use and management of public lands, their 
natural and cultural resources, and the environment. The Department has 
concluded that to ensure broad and regular participation by members, it 
will continue to compensate advisory committee members for travel and 
per diem expenses. The Department does not anticipate that operating 
these committees will generate a need for substantial increases in 
Federal funds in the future. In any event, funding is subject to future 
review in the budget and appropriations process. Moreover, advisory 
committees are required under FLPMA and the Department has concluded 
the committee structure adopted in the rule will reap tangible rewards 
in improved land management and increased cooperation among 
stakeholders.
    The Department anticipates that the localized teams will be in 
existence for limited time periods and will focus on fairly narrow 
issues. As a result, the Department has concluded that members of these 
teams who are not also members of the parent advisory council will not 
be reimbursed for travel and per diem. The Department is also making 
the decision not to reimburse expenses of these localized teams in 
order to limit the expenses incurred by BLM and the Department. 
However, the final rule allows BLM to constitute a special function 
subgroup such as a technical review team and reimburse RAC members for 
travel expenses. In addition, the Department has the authority to 
purchase services in support of an advisory council, and on occasion 
may do so.
    In accordance with the above discussion, the Department has decided 
to adopt a version of the proposed rule. Several minor changes are made 
in paragraph (d). All of these changes are intended to clarify that 
this section applies to all advisory committees, not just RACs. 
References to resource review teams and technical review teams are 
omitted from the final version of the rule for that reason, and for 
consistency with the models of RACs finalized today in Secs. 1784.6-1 
and 6-2. Those terms are replaced with a more general reference to 
``subgroups.''
Section 1784.5-1  Functions and Section 1784.5-2  Meetings
    These sections would have been amended by replacing the term 
``authorized representative'' with the term ``designated Federal 
officer.'' These changes would have provided consistency with the 
terminology of FACA.
    No comments were received that pertained solely to these sections. 
The Department has decided to adopt this provision as proposed.
Section 1784.6-1  National Public Lands Advisory Council, Reserved 
Sections 1784.6-2 and 1784.6-3, Section 1784.6-4  District Advisory 
Councils, and Section 1784.6-5  Grazing Advisory Boards
    References to the National Public Lands Advisory Council, district 
advisory councils and grazing advisory boards would have been removed 
in their entirety and replaced with three new sections that would have 
established multiple resource advisory councils and associated input 
teams. Sections 1784.6-4 and 1784.6-5 would have been removed. Reserved 
sections 1784.6-2 and 1784.6-3 would have been replaced by new 
sections.
    No comments were received on the proposals relating to 
Secs. 1784.6-2 and 6-3. A number of comments were received concerning 
Secs. 1784.6-4 and 6-5. Comments directed to Sec. 1784.6-1 have been 
addressed below in the discussion of the new provisions in that 
section.
    Many commenters stated that the grazing advisory boards' members 
had both knowledge of and an interest in the land. Some commenters who 
supported establishment of the RACs stated that the grazing advisory 
boards should also be retained; others stated that the grazing advisory 
boards should be abolished.
    Grazing advisory boards have served a useful purpose in providing 
the Department with valuable input from permittees regarding grazing 
issues. However, the statutory provision in FLPMA, section 403, 
establishing grazing advisory boards expired by its own terms on 
December 31, 1985. Since then, the boards have been authorized only by 
Secretarial order. For several reasons, the Department has concluded 
that it will proceed with its proposal to abolish the boards and to 
rely on one general form of advisory committee, the RACs. While grazing 
advisory boards have been useful, the Department believes that more 
collaborative public rangeland management requires a broader scope of 
interests advising BLM. The function of grazing advisory boards, as 
defined by FLPMA, was limited to making recommendations to management 
concerning the development of AMPs and the utilization of range 
betterment funds. While grazing advisory boards may have included some 
individuals not involved in grazing, this was not uniformly the case. 
RACs will address a full range of resource management issues, including 
AMPs and planning for the expenditure of range betterment funds and 
will broaden public involvement in the process.
    All groups that provide advice to the Federal government are 
subject to the requirements of FACA, unless specifically excluded by 
statute. FACA specifies a series of requirements for committees and 
other bodies advising the Federal government, including that they be 
balanced in terms of representation, have notices of meetings published 
in the Federal Register and be open to the public, keep various types 
of records, and implement other procedural safeguards that will assure 
public involvement in resource management issues. The Department 
believes it is important that management of the public rangelands 
[[Page 9913]] involve a wide range of public involvement. To achieve 
this, and to comply with FACA, the Department has concluded that 
grazing advisory boards should be abolished and RACs created.
    In accordance with the above discussion, the Department has 
concluded that the final rule should adopt provisions as proposed 
because these provide the best alternative for promoting cooperative 
relationships in resource management.
Section 1784.6  Membership and Functions of Resource Advisory Councils 
and Council Subgroups
    In the proposal, the title of this section would have been changed 
for consistency with subsequent changes in Secs. 1784.6-1 through 6-3. 
It would have referenced multiple resource advisory councils (MRACs), 
as well as rangeland resource teams and technical review teams.
    A few comments were addressed to this section, but covered issues 
relating to the substance of the following sections. They will be 
discussed under the pertinent sections below.
    Because the Department has concluded that the final rule should 
adopt a more flexible model for public participation than was 
envisioned in the proposal, it has changed this title to reflect the 
three model version of RACs adopted in final rule Secs. 1784.6-1 and 6-
2. References to rangeland resource teams and technical review teams 
are changed to ``subgroups'' for that reason, and ``multiple'' is 
omitted from the name of the RACs, as discussed at Sec. 1784.6-1.
Section 1784.6-1  Resource Advisory Councils--Requirements
    Under the proposed rule, this section would have provided for the 
establishment of MRACs. One MRAC has been established for each BLM 
administrative district except when prohibited by factors such as 
limited interest in participation, geographic isolation in terms of 
proximity to users and public lands, or where the configuration and 
character of the lands is such that organization of councils along BLM 
district boundaries is not the most effective means for obtaining 
advice on the management of all the resources across an entire area. 
The exceptions would have been intended to provide for situations such 
as those encountered in Alaska where it is difficult for interested 
persons to participate because of extreme travel distances, or 
situations where management of neighboring BLM districts or portions of 
districts involving similar lands can best be served by organizing an 
MRAC along boundaries other than BLM district administrative 
boundaries. The determination of the area for which an MRAC would have 
been organized would have been the responsibility of the affected BLM 
State Director. Organization by ecoregion boundaries would have been 
encouraged where appropriate. The Governors of the affected States and 
established MRACs could have petitioned the Secretary to establish an 
MRAC for a specific BLM resource area.
    MRACs would have provided advice to BLM officials to whom they 
report regarding the preparation, amendment and implementation of land 
use plans. The councils would also have assisted in establishing other 
long-range plans and resource management priorities in an advisory 
capacity. The Department intended that this would have included 
providing advice on the development of plans for range improvement or 
development programs and included in the proposed amendments to 43 CFR 
subpart 4120 a requirement for consultation with MRACs in the planning 
of range improvement or development programs. MRACs would not have 
provided advice on personnel management, nor would they have provided 
advice on the allocation and expenditure of funds subsequent to budget 
planning.
    Appointments to MRACs would have been made by the Secretary. In 
making appointments, the Secretary would have considered nominations 
from the Governor of the affected State and nominations received in 
response to a public call for nominations. The Secretary would have 
encouraged Governors to develop their nominations through an open 
public process. In reviewing nominations submitted by the Governors, 
the Secretary would have considered whether an open public process was 
used. All nominations would have been required to be accompanied by 
letters of recommendation from interests or organizations to be 
represented that are located within the area for which a council is 
organized.
    The Secretary would have appointed 15 members to each MRAC. Five 
members would have been selected from persons representing commodity 
industries, developed recreational activities, or the use of public 
lands by off-highway vehicles; five would have been selected from 
representatives of nationally or regionally recognized environmental or 
resource conservation groups and wild horse and burro interest groups, 
from representatives of archeological and historical interests, and 
from representatives of dispersed recreational activities; and five 
would have been selected from persons who hold State, county, or local 
elected office, and representatives of the public-at-large, Indian 
tribes within or adjacent to the area, natural resource or natural 
science academia, and State agencies responsible for the management of 
fish and wildlife, water quality, water rights, and State lands. The 
proposed rule would have required that at least one of the members 
appointed to each council must hold elected State, county, or local 
office. An individual would not have been allowed to serve on more than 
one MRAC at any given time.
    The proposed rule would have required council members to have 
demonstrated experience or knowledge of the geographic area for which 
the council provides advice. It would have required that all members of 
MRACs attend a course of instruction in the management of rangeland 
ecosystems that had been approved by BLM State Director. This 
requirement was intended to ensure a common general understanding of 
the resources management principles and concerns involved in management 
of the public lands.
    The proposed rule would have provided that an official meeting of 
an MRAC required at least three members from each of the three broad 
categories of interests from which appointments were made. Formal 
recommendations of the council would have required agreement by at 
least three members of each of the three broad categories of interests 
that attend an official meeting.
    MRACs would have had the option of requesting a Secretarial 
response where the MRAC believed its advice had been arbitrarily 
disregarded by the BLM manager. If requested, the Secretary would have 
responded directly to a council's concerns within 60 days. Such a 
request would have required agreement by all 15 members. The 
Secretary's response would not have constituted a decision on the 
merits of any issue that is or might become the subject of an 
administrative appeal and would not have precluded an affected party's 
ability to appeal a decision of the authorized officer.
    The Department received many comments on this section of the 
proposal. Many commenters were opposed to the abolition of the grazing 
advisory boards. Comments on the grazing advisory boards have been 
covered above in the discussion of Sec. 1784.6-5. Many were opposed to 
the formation of the MRACs. Others said that the proposed system was in 
direct conflict with the requirements for BLM [[Page 9914]] to 
coordinate with State and local government in the decisionmaking 
process because the new system would be unwieldy and expensive. Some 
commenters stated that the councils would not bring about significant 
changes in the health of our public lands, but would perpetuate local 
control of public lands.
    Other commenters were opposed to the MRACs because they said that 
the Federal agencies were being paid to manage the public land for 
public benefit, and they should do so. Some commenters charged that the 
Department was trying to subordinate or eliminate its legal obligations 
under sections of PRIA. Others stated that the public is involved in 
range decisions through the NEPA process and so MRACs were unnecessary.
    Many commenters supported establishment of the MRACs. A typical 
comment stated they were an improvement over the grazing advisory board 
system. Several of the commenters who supported establishment of the 
councils suggested they be tried on an experimental basis.
    Many commenters spoke to the make-up of the MRACs. Most of these 
commenters stated that ranchers would be under-represented. Some 
pointed out that the practical, ecological and managerial knowledge of 
permittees is essential, and that therefore they should be a required 
component. Some suggested that council membership should reflect the 
major users of the land in each specific area.
    Some commented that it was discrimination to require 
environmentalists to be members of national organizations. Others said 
it was unfair to exempt the staffs of environmental organizations from 
the residency requirements which they believed were imposed on all 
other council members.
    Many commenters spoke to participation of government employees on 
the councils. Some supported such participation especially by 
representatives of State wildlife agencies. Others were opposed to 
participation by government employees because they believed BLM would 
coordinate with such agencies anyway, and the councils should be for 
the government to get public input.
    Some stated that prospective members should be supported by letters 
of recommendation from individuals and local associations of the area 
they would represent. Others specifically were opposed to the 
requirement for letters of recommendation. Commenters said that to 
require letters of recommendation from ``local interests'' would 
prevent the councils from being balanced and violates FACA. One comment 
stated that because salmonids were so important in many areas, someone 
on the council should be knowledgeable of salmonids.
    Other comments regarding membership addressed lending institutions, 
academicians, Indian tribes, and other specific groups.
    Many commenters said that it was important for the MRACs to be made 
up of people who had local interests and knowledge, and stated that all 
members should be local. Other related comments addressed the need for 
local expertise, a financial stake in the land, and other factors. Some 
asserted that council members must share a primary commitment to 
improving grazing as a land use. Some of these same commenters asserted 
that all members should be required to demonstrate their knowledge of 
rangeland, vegetation, and livestock management, or related areas.
    Many commenters were concerned with the process of selecting 
members. Suggestions included that members be elected by the 
permittees, or appointed by the county commissioners or the Governor. 
Others objected to their being appointed by the Governor or by the 
Secretary. Many commenters objected to self-nomination of individuals 
to the MRACs.
    A number of commenters spoke on operation of the MRACs. Some stated 
that no expenses should be paid. Some suggested that strict standards 
on conduct and meetings should be developed to prevent one interest 
from dominating. Others suggested that recommendations from the local 
council should have some jurisdiction over the actions of the Federal 
land management agency. Some commenters stated that the provision 
prohibiting councils from providing advice on funding and personnel 
matters was too restrictive. Some objected to the Secretarial appeal 
provision. Several asked whether the MRACs would give recommendations 
or advice, or suggested that the advisory council serve as a reviewer 
of proposed decisions of the authorized officer. Some commenters raised 
a concern about the development and content of the charter, and about 
evaluation of the councils. Others were concerned about the requirement 
for consensus because they thought it would result in a serious delay 
in decisionmaking.
    Some commenters spoke to the jurisdiction of the MRACs and how that 
would be determined. A number stated they should be based on BLM 
districts or on ecoregions. Some objected to the State Director being 
authorized to determine the area covered by a council.
    A number of commenters spoke to council size. Some stated they were 
too large, a few thought they were too small. Some stated that the 
basic principle should be balanced and broad representation of public 
concerns, not a specific number. A number of specific recommendations 
for MRAC membership and size were made.
    Numerous substantive suggestions were made for the course of study. 
Other comments included a statement that the proposal differed in 
several material respects from the products of the Colorado Working 
Group. Some commenters suggested that various terms be defined 
including ecosystem, biodiversity, environmentalist, rangeland 
ecosystem, historical and archeological interests, direct interest, 
dispersed recreational activities, insufficient interest, unbalanced 
viewpoint, nationally or regionally recognized, and ecosystem 
boundaries. Some commenters suggested that the MRAC should take no 
actions to which the permittees or lessees involved did not agree.
    The Department's decisions to form the RACs and to abolish grazing 
advisory boards have been discussed at Sec. 1784.6-5, as is the need 
for greater public involvement than that provided by the grazing 
advisory boards. General requirements of FACA, which have dictated a 
number of the provisions adopted today, are discussed at Sec. 1784.2-1, 
Composition. Under the requirements of FACA, members of committees 
advising the Federal government must be appointed by the head of the 
agency, in this case the Secretary. State and local government will be 
included in the process through representation on the RACs, as well as 
being consulted on numerous specific types of decisions, such as on 
designation or adjustment of allotment boundaries (Sec. 4110.2-4), 
increasing permitted use (Sec. 4110.3-1), implementing reductions in 
permitted use (Sec. 4110.3-3), development of AMPs (Sec. 4120.2), and 
other BLM decisions. See the discussions below on those sections for 
additional information.
    The Department has concluded that the new system will be workable 
and neither unwieldy nor excessively expensive. Obtaining input from 
all interested parties on BLM decisions early in the process will in 
the long run reduce objections and appeals. The Department anticipates 
that this will not only expedite implementation of agency actions, but 
concurrently will reduce overall rangeland management expenses by 
making the program more efficient. For example, the Department does not 
expect travel expenses to be [[Page 9915]] significantly greater than 
they were for the grazing advisory boards, particularly with the 
addition of a residency requirement. The issue of costs of advisory 
committees is discussed further at Sec. 1784.3, Member service.
    The system will not necessarily be a multilevel structure. Under 
the provisions adopted today, only the RACs themselves will be 
required. The other subgroups will be discretionary. While the groups 
will be local, in a broad sense, the Department believes that providing 
for diverse participation through implementation of the provisions 
adopted in this section of the final rule will ensure that all 
interests are fairly represented. Furthermore, the requirement for 
consensus, which is retained in the final rule, will ensure that the 
three groups represented will have an equal say in making decisions, 
and no one interest will be isolated by majority vote.
    The Department acknowledges that it is the responsibility of BLM to 
manage the public grazing lands. However, several different statutes, 
including FLPMA, PRIA, and NEPA, call for public participation in 
decisionmaking processes regarding such programs. A purpose of these 
RACs is to facilitate such participation, and their formation and 
structure is fully consistent with those legal requirements. While 
there may be some initial complications in establishing the RACs, the 
Department believes that they are critical to long-term improvements in 
the management of our public grazing lands. For that reason, the 
Department has decided not to try them on only an experimental basis. 
The Department has carefully considered the structure and functions of 
the MRACs. In response to the concerns about under representation of 
grazing interests, the Department agrees that, to the extent possible, 
the make-up of the commodity group on the council should reflect the 
distribution of commodity interests in the area represented by the 
specific council. For example, if approximately 3/5ths of the commodity 
interests in an area are grazing operators, 1/5th are timber 
harvesters, and 1/5th are miners, the commodity group on the council 
should include 3 permittees or lessees, 1 timber harvester, and 1 
miner. Such a distribution will ensure that the necessary expertise is 
present to deal with technical issues which might come before a council 
representing that specific geographic area. While the Department does 
not agree that it is necessary or desirable to specify this in the text 
of the rule, since in some cases it may be impossible to achieve these 
optimal numbers, the Department will strive to arrive at this outcome 
during the appointment of council members.
    Under the rule adopted today, environmental members will not have 
to be members of national groups. All nominees to the RACs will be 
required to have letters of recommendation, but because the final rule 
requires residency in one of the States within which the area to be 
covered by the council is located, the letter need not come from a 
local source. These requirements apply equally to all council members, 
environmentalists as well as commodity interests. Additionally, all 
members will be required to have some expertise or knowledge that will 
be useful to a council's deliberations.
    The Department agrees that representatives of other Federal 
agencies should not be members of the RACs. Other Federal agencies are 
normally consulted about issues that affect them through other formal 
processes and do not need to be provided access through the RAC 
structure. However, under FACA, each council must have one ``designated 
Federal official'' present at each meeting. State agencies are a 
different matter. While it is true that BLM will coordinate on many 
issues with State agencies, nevertheless the Department believes it 
will be useful, in some cases and depending on local circumstances, to 
include State employees on the RACs. However, in the final rule, the 
Department has revised the discussion of the third group to limit 
participation of State employees to representatives of State agencies 
responsible for managing land, natural resources, or water.
    The Department believes that the requirement to have broad 
representation from the three groups specified in this section of the 
final rule is a reasonably specific provision. It is not feasible to 
specify in more detail exactly what types of persons should be selected 
to ensure such representation. That is a decision that will have to be 
made on a case-by-case basis, depending on the nature of the population 
in an area covered by a RAC, and on the specific types of interest 
groups present in that area. The Secretary, based in part on 
nominations from the Governors, will strive to ensure that each RAC is 
fairly representative of those groups. Certainly, in many cases, tribal 
representatives should--and will--be included on the councils. The 
provisions of this section of the final rule allow inclusion of mining, 
timber, and other interests. However, this section deals specifically 
with the RACs that will be formed to provide advice on the public lands 
grazing program, and it is not appropriate to specify requirements 
related to the mining or timber industries here.
    The Department does not agree that lending institutions should be 
specified as a group to be represented on all RACs. Of course, persons 
from such institutions could serve on the councils as representatives 
of the local public, local elected officials, or other interests listed 
in this section of the final rule. Similarly, academicians are listed 
as possible members because of their ability to contribute to technical 
discussion of rangeland issues. Therefore, the Department believes it 
is appropriate to limit membership of academicians, per se, to those 
involved in the natural sciences. However, an academician with some 
other specialty could participate as a member of the local public, as a 
representative of one of the other specified groups. Academicians who 
are not in the natural sciences are not prevented from serving on the 
councils.
    The Department agrees that local expertise is essential to 
effective councils. The rule adopted today requires that members of 
RACs, rangeland resource teams and other local general purpose 
subgroups must reside in the State, or one of the States, within the 
jurisdiction of the council or subgroup. Additionally, the rule 
requires demonstrated knowledge of the geographic area. The Department 
does not agree that national environmental groups should be excluded, 
but again, representatives of such groups should have local knowledge 
and meet residency and other membership criteria.
    Furthermore, the Department does not agree that all members should 
have a financial stake in the land or pay user fees. Anyone with a 
genuine interest in the management of the public lands, and with 
expertise to make a contribution, should be eligible to be considered 
for council membership, so long as the person meets other membership 
criteria.
    Similarly, the Department does not agree that council members must 
share a primary commitment to improving grazing as a land use. While 
clearly the councils should provide advice on improving the grazing 
uses of the land, and grazing expertise will be an important component 
on the councils, many other issues are legitimate concerns, including 
non-grazing uses of the public rangelands. This is consistent with 
BLM's responsibility to multiple resources and uses.
    Issues regarding selection of members have been discussed at 
Sec. 1784.2-1, Composition. The Department believes that self-
nomination is an appropriate [[Page 9916]] method of identifying 
individuals with an interest in the management of the public lands. All 
nominations must be accompanied by letters of reference from interests 
or organizations to be represented. The Secretary will not be able to 
appoint to the councils all individuals who are nominated, either by 
themselves or by other groups. During the selection and appointment 
process, the Department will strive to establish council membership 
that represents the three groups in a balanced fashion, and that 
includes only members who meet the requirements to be informed, 
objective, knowledgeable about the local area, and committed to 
collaborative decisionmaking.
    Issues concerning payment of per diem to council members have been 
discussed at Sec. 1784.3, Member service.
    The Department believes that the requirements for consensus 
decisionmaking and balanced membership will prevent one group from 
dominating the councils. Issues such as rules of operation can be 
handled by the individual councils after they are constituted, as long 
as they fulfill the requirements of FACA and this rule. The councils 
cannot legally be given jurisdiction over the actions of the Federal 
land manager. While the Department expects that the recommendations of 
the councils will be carefully considered by local Federal managers, 
ultimately the Federal agency remains responsible for all decisions 
made.
    BLM is constrained legally in many matters regarding personnel or 
funding. The BLM could not be bound by advice from the RACs on such 
matters. However, some funding matters clearly can be considered by the 
councils. For example, expenditure of range improvement funds will be 
considered. By advising the agency on priorities, the RACs may impact 
the expenditure of other funds as well.
    The councils cannot appeal to the Secretary, but they can request 
Secretarial response, under the provisions of Sec. 1784.6-1(i) of the 
final rule. 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.
    While any interested person can provide input to the charters, the 
Department will be responsible for establishing a charter for the 
advisory councils. These charters must be consistent with the 
requirements of FACA, and must be reviewed by the General Services 
Administration and approved by the Office of Management and Budget. 
Definition of the groups to be represented on each council in the 
charters must be consistent with the requirements of Sec. 1784.6-1(c). 
Specific operating procedures for each council can be developed by that 
council and incorporated into a set of bylaws or other operational 
instrument. Development of the charter and issues of the councils 
giving advice or recommendations are also discussed above in 
Sec. 1784.2-1, Composition. The Department rejects the suggestion that 
permittees not be bound by the recommendations of the councils unless 
they agree in writing. The councils will provide recommendations to 
BLM, not directly to the permittees. Furthermore, the councils provide 
only advice. They do not make decisions. It is the statutory 
responsibility of BLM, through the authorized officer, to make final 
decisions regarding the management of the public rangelands. Permittees 
and lessees will be bound to follow those decisions, subject to the 
administrative remedies provisions in subpart 4160.
    The Department understands that it may in some cases be difficult 
to achieve consensus, and that the development of consensus may be a 
time-consuming process. However, consensus decisionmaking is at the 
heart of improving the grazing management program. The Department is 
committed to the concept that all groups should work together to 
develop recommendations regarding the management of the public 
rangelands. Decisions reached in this way will be owned by all parties 
involved, and there will be significantly less likelihood of appeals 
and disputes, and greater likelihood that effective actions will be 
identified and implemented. In the long run, the Department believes 
that consensus-based decisionmaking will actually shorten the time 
required to reach a decision and implement it on the ground.
    In response to the comments on jurisdiction, the Department has 
decided to allow considerable flexibility in the area covered by any 
one RAC. To that end, and to provide flexibility in other aspects of 
the RACs so they can be constituted to suit local needs, the Department 
has incorporated into this final rule provisions allowing adoption of 
any one of three models. Those models allow RACs to be formed on the 
basis of State boundaries, BLM districts, or ecoregions. The boundary 
of the RACs will be determined by the State Director, in consultation 
with the Governor and other interested parties.
    Size and composition of the councils are discussed at Sec. 1784.2-
1, Composition. Additionally, the Department notes that one of the 
purposes of the RACs is to fulfill the requirements of section 309(a) 
of FLPMA, which requires the Department to form councils of 10 to 15 
members. Furthermore, FACA requires that councils advising the Federal 
government have a balanced membership made up of all groups having an 
interest in the issue on which the council provides advice. The 
provisions for membership included in the rule adopted today at this 
section will ensure implementation of those statutory requirements.
    The Department agrees that input from the Governor is critical to 
the success of the councils. However, under the provisions of FACA, the 
Secretary must appoint the members of the councils. The Secretary will 
carefully consider nominees sent forward by the Governors. Furthermore, 
discussions between the State Director and the Governor will be 
important in determining whether councils will be set up on a State, 
District, or ecoregion basis. The Department will develop a course of 
study to ensure that council members are fully qualified to make 
recommendations to BLM concerning grazing management issues.
    The RAC provisions as proposed differed in some ways from the 
Colorado model. While they were based to a considerable extent on that 
model, certain statutory requirements, including the provision in FACA 
that council members be appointed by the agency head, in this case the 
Secretary, dictated that some provisions of the Colorado model be 
revised. This final rule adopts three RAC models, one of which, Model 
A, is based largely on the Colorado model. Again, however, certain 
changes had to be made to accommodate legal requirements and the goals 
of this public rangelands management program.
    Many of the terms for which commenters requested definitions have 
been discussed in the FEIS. Direct interest is discussed at 
Sec. 1784.2-2, Avoidance of conflict of interest. ``Dispersed 
recreational activities'' is a term used by BLM to refer to recreation 
that takes place outside of developed recreational areas. Birding, 
hiking and hunting are dispersed recreational activities. Definition of 
the term is outside the scope of these grazing regulations.
    The Department has corrected any confusion resulting from the 
proposed rule's use of the terms council, board, and committee. This is 
discussed at Sec. 1784.2-1. [[Page 9917]] 
    Many of the commenters' concerns and suggestions could not be 
reconciled within the framework of the specific proposal made on March 
25, 1994. In order to be more responsive to those concerns, the 
Department has made a number of changes from the proposal in this final 
rule.
    The section is retitled, to indicate that it now specifies those 
elements of advisory councils which will be required to implement 
provisions of FACA, FLPMA, or the goals of improving the rangeland 
management program. Optional features are provided at final 
Sec. 1784.6-2. The word ``multiple'' is eliminated throughout the 
section.
    Most significantly, the Department has dropped much of the detail 
regarding RAC requirements from this section of the final rule, and has 
substituted language that allows a more flexible structure. Coupled 
with the provisions adopted in final Sec. 1784.6-2 this will allow a 
model for public participation to be selected for each State that best 
suits the State's own needs.
    Many of the wording changes in the final rule are consistent with 
the goal of introducing flexibility. References to rangeland resource 
teams and technical review teams have been replaced with ``subgroups.'' 
Provisions in paragraph (a) that would have been specific to District 
based councils have been eliminated, since this final rule allows 
councils to be formed along State, District, or ecoregion boundaries.
    Provisions in paragraph (c) regarding membership have been changed 
to eliminate specific numbers of members, since these can vary under 
the provisions of final Sec. 1784.6-2. The language regarding the 
membership of a local official is adjusted to conform to FLPMA. A 
provision is added requiring that council members must reside within 
one of the States within the geographic jurisdiction of the council. 
This wording was selected to accommodate those cases where ecoregion-
based councils may cover an area in more than one State. Provisions 
regarding membership of State employees have been consolidated for 
clarity. Other minor revisions have been made in this section for 
clarity.
    Final paragraph (e) is modified from the proposal to specify that 
the letters of recommendation required of nominees to the councils do 
not have to be from a locally based group. Since the Department has 
decided to introduce a residency requirement, as discussed above, there 
is no need to require that letters of nomination also be local.
    Provisions in proposed paragraph (h) regarding quorums and voting 
requirements have been revised consistent with the flexible models of 
public participation adopted today. Rather than numbers of members 
being specified, the final provision requires that council charters all 
contain rules defining a quorum and establishing procedures for sending 
recommendations forward to BLM, and that such recommendations require 
agreement of at least a majority of the members of the three groups 
defined in paragraph (c). This establishes a minimum requirement. Each 
council's charter could require higher levels of agreement.
    Taken together, the Department believes the provisions adopted 
today fulfill the goal of broadening the base of public participation 
in rangeland management decisions, while ensuring that advice provided 
to the Department represents the views of a council which is balanced 
in its membership, knowledgeable about the land and issues, and 
committed to consensus decisionmaking.
Section 1784.6-2  Resource Advisory Councils--Optional Features
    The proposed section would have provided for the formation of 
rangeland resource teams by an MRAC on its own motion or in response to 
a petition by local citizens. Rangeland resource teams would have been 
formed for the purpose of providing local level input and serving as 
fact-finding teams for issues pertaining to grazing administration 
issues within the area for which the rangeland resource team is formed. 
They would not have provided advice directly to the Federal land 
manager.
    Rangeland resource teams would have consisted of five members 
selected by the MRAC, including two permittees or lessees, one person 
representing the public-at-large, one person representing a nationally 
or regionally recognized environmental organization, and one person 
representing national, regional, or local wildlife or recreation 
interests. Members representing grazing permittees or lessees and the 
local public-at-large would have been required to have resided within 
the area for which the team would have provided advice for at least two 
years prior to their selection. The proposed rule would have required 
that at least one member of the rangeland resource team be selected 
from the membership of the parent MRAC.
    Rangeland resource team members would have had to be qualified by 
virtue of their knowledge or experience of the lands, resources, and 
communities that fall within the area for which the team is formed. All 
nominations for membership would have required letters of 
recommendation from the local interests to be represented. The 
membership provisions were intended to ensure that rangeland resource 
teams were able to represent key stakeholders and interests in 
providing input to the more broadly organized MRACs.
    The proposed rule would have required that all members of rangeland 
resource teams attend a course of instruction in the management of 
rangeland ecosystems that had been approved by BLM State Director. The 
Colorado Working Group developed a proposal for a ``Range Ecosystem 
Awareness Program'' that would have established a basic curriculum 
including basic rangeland ecology, human resource development, the 
relationship of public land resources to private lands and communities, 
and the pertinent laws and regulations affecting rangeland management.
    Rangeland resource teams would have had opportunities to raise any 
matter of concern with the MRAC and to request that the MRAC form a 
technical review team, as described below, to provide information and 
options to the council for their consideration.
    Although no specific provision was made in the proposed rule, 
rangeland resource teams could have petitioned the Secretary for 
chartered advisory committee status. Chartered rangeland resource teams 
would have been subject to the general provisions of 43 CFR part 1780 
and the provisions of the charter prepared pursuant to FACA.
    Many of the commenters on this section opposed the formation of 
rangeland resource teams. Many reasons were given for this opposition.
    Some asserted that both rangeland resource teams and the technical 
review teams would be subject to FACA, unless they could be sequestered 
from BLM. A commenter suggested requiring that the subgroups be fairly 
balanced. Others opposed any requirement for members to be local 
residents.
    Some other commenters stated that the teams violate the requirement 
of Section 8 of PRIA to consult, coordinate, and cooperate. Many of the 
same commenters asserted that the Department cannot change the groups 
targeted by Section 8. Some commenters stated that the teams were not 
needed, would not be effective, would be costly, or would slow the 
planning and implementation process.
    Some were concerned about how the teams would be formed. Some 
stated that they should be created by and report to BLM; others 
suggested that the [[Page 9918]] interested public should be able to 
request BLM to form a team; still others said they should be formed by 
the RACs. Others suggested that the regulations should be flexible 
enough to let these teams consider issues other than grazing.
    A number of commenters spoke to the make-up of the rangeland 
resource teams. Many supported a local residency requirement for all 
members, others opposed the emphasis on local residency. Many stated 
that all members should have a high level of expertise in rangeland 
issues.
    Many different specific suggestions about team make-up were 
received. Others were concerned that these teams be formed for a 
limited time, so that they would not be too expensive or perpetuate 
themselves. A number of specific comments were made on the content of 
courses to be offered to team members. Another asked how rangeland 
resource teams would bring on-going consensus efforts like the Trout 
Creek Work Group ``closer to the process.''
    Many of the above concerns about rangeland resource teams have been 
addressed in the foregoing discussion of Sec. 1784.6-1. As noted there, 
the Department has decided to make significant changes from the 
proposal in this final rule.
    The Department has not adopted the suggestions on the makeup and 
structure of the teams, and has decided to retain the original 
proposal. However, as discussed below, the final rule will accommodate 
other models of public participation. If the rangeland resource team 
structure does not suit local conditions, a different model can be 
chosen. Similarly, groups such as the Trout Creek Work Group can be 
incorporated into the process through the use of another model which 
allows the inclusion of groups of different sizes.
    Rangeland resource teams or other subgroups serving similar 
functions will now be optional features under the required RACs. The 
final rule does not provide for chartering of any subgroups under FACA, 
and such subgroups will not advise BLM directly, but will provide 
assistance to the chartered council to improve its ability to function 
effectively. All special purpose, short term groups will be formed 
exclusively by BLM and will be made up of Federal employees, whether 
regular staff or contract employees. Regarding residency requirements, 
the Department in the final rule at Sec. 1784.6-1 has decided to 
require that all RAC members and members of general purpose local 
subgroups must be residents of one of the States in which the area 
covered by the specific council is located. The Department believes 
this structure both assures compliance with FACA and encourages local 
level participation in the decision-making process.
    The development of the training course is discussed at Sec. 1784.6-
1.
    This section, which in the proposal was exclusively about rangeland 
resource teams, now presents three alternate models for public 
participation, any of which can be chosen by a State Director, in 
consultation with a Governor and other interested persons. Each model 
provides specific details about four attributes of the councils: 
council jurisdiction, membership, quorum and voting requirements, and 
subgroups.
    Model A is based on the work of the Colorado Working Group on 
rangeland improvement. It has the following characteristics:
    (i) Council jurisdiction. The geographic jurisdiction of a council 
will coincide with BLM District or ecoregion boundaries. The Governor 
of the affected State(s) or existing RACs may petition the Secretary to 
establish a RAC for a specified BLM resource area.
    (ii) Membership. Each council will have 15 members, distributed 
equally among the three groups specified in Sec. 1784.6-1(c).
    (iii) Quorum and voting requirements. At least three council 
members from each of the three groups from which appointments are made 
pursuant to Sec. 1784.6-1(c) must be present to constitute an official 
meeting of the council.
    (iv) Subgroups. Local rangeland resource teams may be formed within 
the geographical area for which a RAC provides advice, down to the 
level of a single allotment. These local teams will provide local level 
input to the advisory council. These teams may be formed under the 
auspices of a RAC on its own motion or in response to a petition by 
local citizens. Rangeland resource teams will be formed for the purpose 
of providing local level input to the RAC on issues pertaining to 
grazing administration within the area for which the rangeland resource 
team is formed. Rangeland resource teams will consist of five members 
selected by the RAC. Membership will include two persons holding 
Federal grazing permits or leases, one person representing the public-
at-large, one person representing a nationally or regionally recognized 
environmental organization, and one person representing national, 
regional, or local wildlife or recreation interests. Persons selected 
by the council to represent the public-at-large, environmental, and 
wildlife or recreation interests may not hold Federal grazing permits 
or leases. At least one member must be selected from the membership of 
the RAC. Members of the rangeland resource teams must be residents of 
the State in which the area covered by the team's jurisdiction is 
located.
    The RAC will be required to select rangeland resource team members 
from nominees who qualify by virtue of their knowledge or experience of 
the lands, resources, and communities that fall within the area for 
which the team is formed. All nominations must be accompanied by 
letters of recommendation from the groups or interests to be 
represented.
    All members of rangeland resource teams will attend a course of 
instruction in the management of rangeland ecosystems that has been 
approved by BLM State Director. Rangeland resource teams will have 
opportunities to raise any matter of concern with the RAC and to 
request that BLM form a technical review team, as described below, to 
provide information and options to the council for their consideration.
    Technical review teams can be formed by the BLM authorized officer 
on the motion of BLM or in response to a request by the RAC or a 
rangeland resource team to gather and analyze data and develop 
recommendations to aid the decisionmaking process. Membership will be 
limited to Federal employees and paid consultants. Members will be 
selected based upon their knowledge of resource management or their 
familiarity with the specific issues for which the technical review 
team has been formed. Technical review teams will terminate upon 
completion of the assigned task.
    Model B is based on the work of the Wyoming Steering Committee on 
the Management of Federal Lands. It has the following characteristics:
    (i) Council jurisdiction. The jurisdiction of the council shall be 
Statewide, or on an ecoregion basis. The council will promote Federal, 
State, and local cooperation in the management of natural resources on 
public lands, and coordinate the development of sound resource 
management plans and activities with other States. It will provide an 
opportunity for meaningful public participation in land management 
decisions at the State level and will foster conflict resolution 
through open dialogue and collaboration.
    (ii) Membership. The council will have 15 members, distributed 
equally among the three groups specified in Sec. 1784.6-1(c) above, and 
will include at [[Page 9919]] least one representative from wildlife 
interest groups, grazing interests, minerals and energy interests, and 
established environmental/conservation interests. The Governor will 
chair the council.
    (iii) Quorum and voting requirements. The charter of the council 
will specify that 80% or 12 members must be present to constitute a 
quorum and conduct official business, and that 80% or 12 members of the 
council must vote affirmatively to refer an issue to BLM. Formal 
recommendations require agreement of at least three council members 
from each of the three groups.
    (iv) Subgroups. Local rangeland resource teams can be formed under 
the auspices of the Statewide council, down to the level of a 4th order 
watershed. These local teams will provide local level input to the 
advisory council. They will meet at least quarterly and will promote a 
decentralized administrative approach, encourage good stewardship, 
emphasize coordination and cooperation among agencies, permittees and 
the interested public, develop proposed solutions and management plans 
for local resources on public lands, promote renewable rangeland 
resource values, develop proposed standards to address sustainable 
resource uses and rangeland health, address renewable rangeland 
resource values, propose and participate in the development of area-
specific National Environmental Policy Act documents, and develop range 
and wildlife education and training programs. As with the RAC, an 80% 
affirmative vote will be required to send a recommendation to BLM.
    Rangeland resource teams will not exceed 10 members and will 
include at least two persons from environmental or wildlife groups, two 
grazing permittees, one elected official, one game and fish district 
representative, two members of the public or other interest groups, and 
a Federal officer from BLM. Members will be appointed for two-year 
terms by the RAC and may be reappointed. No member may serve on more 
than one rangeland resource team.
    In addition, technical review teams can be established on an as-
needed basis by the BLM authorized officer in response to a request by 
a RAC or rangeland resource team, in response to a petition of local 
citizens, or on BLM's own motion. These teams will address specific 
unresolved technical issues. When the team is requested by the RAC or a 
rangeland resource team, its charge will be established jointly by BLM 
and the council; membership will be determined by BLM and will be 
limited to Federal employees and paid consultants. Technical review 
teams will be limited to tasks relating to fact-finding within the 
geographic area and scope of management actions for which the rangeland 
resource team or RAC provides advice. Technical review teams will 
terminate upon completion of the assigned task.
    Model C was developed by BLM to accommodate other structures of 
public participation, consistent with the requirements of FACA, FLPMA, 
and the goals of this rangeland management program. It has the 
following characteristics:
    (i) Council jurisdiction. The jurisdiction of the council shall be 
on the basis of ecoregion, State, or BLM district boundaries.
    (ii) Membership. Membership of the council will be 10 to 15 
members, distributed in a balanced fashion among the three groups 
defined in Sec. 1784.6-1(c).
    (iii) Quorum and voting requirements. The charter of each council 
shall specify that a majority of each group must be present to 
constitute a quorum and conduct official business, and that a majority 
of each group must vote affirmatively to refer an issue to BLM Federal 
officer.
    (iv) Subgroups. RACs may form local rangeland resource teams to 
obtain general local level input necessary to the successful 
functioning of the RAC. Such subgroups can be formed in response to a 
petition from local citizens or on the motion of the RAC. Membership in 
any subgroup formed for the purpose of providing general advice to the 
RAC on grazing administration should be constituted in accordance with 
provisions for membership in Sec. 1784.6-1(c). Additionally, BLM may 
form technical review teams as needed to gather and analyze data and 
develop recommendations to aid the council. These teams may be formed 
at BLM's own option or in response to a request from the advisory 
council.
    The Department believes that the above three models for public 
participation can be adapted to satisfy the concerns and needs of all 
areas which include public lands or other lands administered by BLM.
Section 1784.6-3  Technical Review Teams
    Under the proposed rule an MRAC could have established technical 
review teams, as needed, in response to a petition of an involved 
rangeland resource team or on its own motion. Rangeland resource teams 
chartered under FACA could also have established technical review 
teams. Technical review teams would have conducted fact finding and 
provided input to the parent advisory council or chartered rangeland 
resource team. Their function would have been limited to specific 
assignments made by the parent council, and been limited to the 
geographical management scope of the MRAC or chartered rangeland 
resource team. Technical review teams would have terminated upon 
completion of the assigned task.
    Members of technical review teams would have been selected by the 
MRAC or chartered rangeland resource team on the basis of their 
knowledge of resource management or their familiarity with the issues 
involved in the assigned task. At least one member of each technical 
review team would have been required to be selected from the membership 
of the parent advisory council or chartered rangeland resource team.
    Some of the commenters on this section specifically opposed the 
concept of technical review teams, saying they would not streamline 
administrative functions, were not needed, would be obstacles to 
change, and would be expensive. Other commenters asserted that any such 
teams should be formed by BLM under the provisions of FACA. A number of 
commenters wrote to the make-up and operation of the teams, and 
asserted that members must be technical experts and should be local 
residents.
    Most of the commenters' concerns about technical review teams have 
been addressed in the discussions of Secs. 1784.6-1 and 6-2. In 
response to commenters' concerns, the Department has decided to require 
that any such technical team be formed exclusively by BLM. Because of 
the requirements of FACA, they will be made up exclusively of Federal 
employees, either regular staff or contract employees. Such technical 
teams could be formed under any of the three models presented in 
Sec. 1784.6-2, either at the request of a chartered committee or on 
BLM's own motion. The Department believes this is the best way to 
ensure that the requirements of FACA are fulfilled, but that the RACs 
have available to them special expertise to address technical issues 
when needed.
    Consistent with the above discussion, and the discussions of final 
Secs. 1784.6-1 and 6-2, the Department is not adopting this provision 
in the final rule. Provisions allowing the formation of technical teams 
by BLM, as needed, are found in final Sec. 1784.6-2. [[Page 9920]] 

Part 4100--Grazing Administration--Exclusive of Alaska

Subpart 4100--Grazing Administration--Exclusive of Alaska; General
Section 4100.0-2  Objectives
    The proposed rule would have amended the objectives statement for 
part 4100 by including as objectives the preservation of public land 
and resources from destruction and unnecessary injury, the enhancement 
of productivity for multiple use purposes, the maintenance of open 
spaces and integral ecosystems, and stabilization of the western 
livestock industry and dependent communities.
    The Department received many comments on this section. Many 
commenters said that the proposed objectives statement was vague, 
subjective, not achievable, and unmeasurable. Others said that it was 
antagonistic, and assumed that ranching operations are destructive. 
Some asserted the statement ignored the valuable contribution made by 
livestock grazing as well as the improvements ranchers had made on the 
Federal lands. Some pointed out that proper grazing does not harm the 
resources.
    Many commenters suggested additions to the list of objectives of 
the rules. Many of these commenters supported using the objectives 
identified by the Colorado Working Group. It was suggested that the 
objectives should have a greater emphasis on ecosystem management, and 
should include standards and guidelines pertinent to the economic and 
social factors which affect the human environment.
    Many commenters objected to the terms ``destruction and unnecessary 
injury.'' This objective had been included to highlight the 
Department's responsibility under Section 315a of TGA which requires 
the Department to ``preserve the land and its resources from 
destruction or unnecessary injury.'' Others asserted that the view that 
ecosystems are static and can be ``preserved'' was out of date. Many 
commenters spoke to the objective of maintaining the public values 
associated with open spaces and integral ecosystems, asserting that 
this was not an appropriate objective for grazing regulations.
    A number of commenters spoke on the objective concerning 
stabilization of the livestock industry and dependent communities. A 
typical comment asserted that small ranches are often dependent on 
second jobs in town, and that actually the ranches are dependent on the 
communities, not vice versa. Some suggested deleting ``dependent 
communities.'' Some commenters took strong exception to this particular 
objective. They asserted that the Department was, with this objective, 
singling out the livestock industry for favored treatment.
    Regarding the objective on enhancing productivity for multiple use 
purposes, commenters offered suggestions that enhancement for multiple 
uses should not be allowed to conflict with grazing and that enhancing 
for multiple use purposes must be subject to maintaining a healthy 
ecosystem.
    Many commenters were concerned with the references to 
``ecosystems'' and asked for a definition of the term. Some asked for a 
definition of ``integral ecosystem'' while others were concerned that 
the term would be used to regulate private lands.
    This final section is substantially revised from the objectives 
presented in the proposed rule. The provision as adopted today includes 
the following objectives: to promote healthy sustainable rangeland 
ecosystems; to accelerate restoration and improvement of public 
rangelands to properly functioning conditions; to promote orderly use, 
improvement and development of the public rangelands, to establish 
efficient and effective administration of grazing of public rangelands; 
and to provide for a sustainable western livestock industry and 
communities that are dependent upon productive, healthy public 
rangelands.
    The new statements are based largely on commenters' concerns. While 
all those concerns could not be accommodated, the Department believes 
that the final rule represents the best summary of the objectives of 
this rangeland management program.
    The first objective, to promote healthy sustainable rangelands, is 
the key component of the Department's program. The statement is based 
on the work of the Colorado Working Group and responds to the 
Department's and some commenters' concerns that the objectives should 
clearly state the objective of achieving healthy, functional 
rangelands. It reflects the Department's intent to make decisions 
regarding grazing on the public lands that will promote healthy 
conditions across all the grazing lands. This embodies the concept that 
such decisions must be made on a coordinated basis and must consider 
other resource values that contribute to the health of the land.
    The second objective, to accelerate restoration and improvement of 
public rangelands to properly functioning conditions, embodies the 
concept that BLM, in order to fulfill its statutory responsibilities to 
the public rangelands, must renew its efforts to restore those areas 
that are not functioning properly. It emphasizes that attainment of 
healthy conditions is a process that requires constant effort; West-
wide healthy conditions cannot be attained overnight.
    The third objective, to promote orderly use, improvement and 
development of the public rangelands, is unchanged from the proposal. 
It is drawn directly from TGA (43 U.S.C. 315(a)). It emphasizes that 
the rangelands are to be used and developed, but also that such use and 
development must be done in an orderly way, and that an integral part 
of the process should be improvement of the rangelands.
    The fourth objective, to establish efficient and effective 
administration of grazing of public rangelands, is based on the work of 
the Colorado Working Group. The statement emphasizes that BLM's 
administration of its program must be both efficient and effective. The 
rules adopted by today's action are an important part of the 
Department's efforts to ensure that objective can be achieved.
    The final objective, to provide for a sustainable western livestock 
industry and communities that are dependent upon productive, healthy 
public rangelands, is a modified version of an objective included in 
the proposal. It asserts that BLM has a responsibility to recognize the 
effects its actions may have on the western livestock industry. 
However, the Department has reworded this objective from the proposal 
because it agrees with commenters' concerns that BLM's program, in and 
of itself, cannot ``stabilize the western livestock industry.''
    Largely as a result of public comment, the Department has decided 
not to adopt the proposed objectives concerning preservation of 
rangeland resources from destruction and unnecessary injury; 
maintenance of the public values provided by open spaces and integral 
ecosystems; and enhancement of the productivity of public lands for 
multiple use purposes by prevention overgrazing and soil deterioration. 
These themes of the proposed amendments are sufficiently covered in the 
more general objectives adopted in this final rule. The objective of 
the previous regulations pertaining to providing for the inventory and 
categorization, trends and monitoring of public lands on the basis of 
range conditions, is omitted as an unnecessary [[Page 9921]] statement 
of BLM's internal working procedures.
    In accordance with the above discussion, the Department has adopted 
the objectives statement as amended.
Section 4100.0-5  Definitions
    The proposal would have removed definitions of ``Affected 
interests,'' ``Grazing preference,'' and ``Subleasing.'' It would have 
amended definitions of ``Active use,'' ``Actual use,'' ``AMP,'' 
``Consultation, cooperation and coordination,'' ``Grazing lease,'' 
``Grazing permit,'' ``Land use plan,'' ``Range improvement,'' 
``Suspension,'' and ``Utilization''; and would have added in 
alphabetical order definitions of ``Activity plan,'' ``Affiliate,'' 
``Conservation use,'' ``Grazing preference or preference,'' 
``Interested public,'' ``Permitted use,'' ``Temporary nonuse,'' and 
``Unauthorized leasing and subleasing.'' This final rule adds 
definitions ``Annual rangelands,'' and ``Ephemeral rangelands.''
    The final rule makes changes to the proposed definitions of 
``affiliate'' and ``consultation, cooperation and coordination.'' It 
makes minor technical and clarifying changes to the proposed 
definitions of ``conservation use,'' ``grazing lease,'' ``grazing 
permit,'' ``land use plan,'' ``range improvement,'' ``unauthorized 
leasing and subleasing,'' and ``utilization.'' It adds definitions of 
``annual rangelands'' and ``ephemeral rangeland.'' Otherwise, the 
definitions are adopted as proposed.
    The following specific actions are taken by this final rule.
    Active use is redefined to include conservation use and exclude 
temporary nonuse or suspended use.
    A definition of Activity plan is added to mean a plan for managing 
a use, or resource value or use. An AMP is one form of an activity 
plan.
    Actual use is redefined to clarify that the term may refer to all 
or just a portion (e.g., a pasture) of a grazing allotment.
    A new definition of Affiliate is added for use in determining 
whether applicants have satisfactory records of performance for 
receiving permits or leases or in receiving additional forage that 
becomes available for allocation to livestock grazing.
    Allotment Management Plan is redefined to describe more clearly the 
focus and purpose of the plan, and to make clear that an AMP is a form 
of activity plan.
    A definition of Annual rangelands is added to mean those areas 
which are occupied primarily by annual plants and which are available 
for livestock grazing during some years.
    A definition of Conservation use is added to mean an activity on 
all or a portion of an allotment for the purpose of protecting the land 
and its resources from destruction or unnecessary injury. The term 
includes improving rangeland conditions and the enhancement of resource 
values or functions.
    Consultation, cooperation and coordination is redefined to mean a 
process for communication between representatives of BLM and the 
parties involved for the purpose of sharing information, obtaining 
advice, and exchanging opinions.
    A definition of Ephemeral rangeland is added to mean areas of the 
Hot Desert Biome (Region) that do not consistently produce enough 
forage to sustain a livestock operation but may briefly produce unusual 
volumes of forage to accommodate livestock grazing. Typically, these 
rangelands receive less than eight inches of rainfall each year and lie 
below 3,200 feet elevation.
    Grazing lease and Grazing permit are redefined to clarify what 
forms of use are authorized in leases and permits and to clarify that 
the documents specify a total number of AUMs apportioned, the area 
authorized for grazing use, or both.
    Grazing preference is redefined to mean the priority to have a 
Federal permit or lease for a public land grazing allotment that is 
attached to base property owned or controlled by a permittee, lessee, 
or applicant. The definition omits reference to a specified quantity of 
forage, a practice that was adopted by the former Grazing Service 
during the adjudication of grazing privileges. Like the Forest Service, 
BLM will identify the amount of grazing use (AUMs), consistent with 
land use plans, in grazing use authorizations to be issued under a 
lease or permit.
    A definition of Interested public is added to mean an individual, 
group or organization that has submitted written comments to the 
authorized officer regarding the management of livestock grazing on 
specific grazing allotments.
    Land use plan is redefined to remove the implication that all 
management framework plans will be replaced by resource management 
plans.
    A definition of Permitted use is added to define the amount of 
forage in an allotment that is allocated for livestock grazing and 
authorized for use, or included as suspended nonuse, under a grazing 
permit or lease. The term replaces the AUMs of forage use previously 
associated with grazing preference.
    Range improvement is redefined to include protection and 
improvement of rangeland ecosystems as a purpose of range improvements.
    Suspension is redefined to reflect the revision of the definition 
of the term ``preference.'' Within this definition the term 
``preference'' is replaced with ``permitted use.''
    A definition of Temporary nonuse is added to refer to permitted use 
that may be temporarily made unavailable for livestock use in response 
to a request by the permittee or lessee.
    A definition of Unauthorized leasing and subleasing is added to 
mean the lease or sublease of a Federal grazing permit, associated with 
the lease or sublease of base property, to another party, without 
approval of the authorized officer, the assignment of public land 
grazing privileges to another party without the assignment of the 
associated base property, or allowing another party to graze livestock 
that are not owned or controlled by the permittee or lessee on the 
permittee's or lessee's public land grazing allotment. This changes the 
existing definition which could be read to imply that no forms of third 
party lease arrangements could be authorized.
    Utilization is redefined to mean the consumption of forage by all 
animals consistent with the definitions in BLM Technical Reference 
4400-3 and the Bureau Manual System for Inventory and Monitoring.
    The Department received many comments on this section. Some 
commenters wanted original definitions left unchanged; others suggested 
further revisions, still others asked that additional new definitions 
be added.
    Many comments were received on the definitions of active use, 
actual use, conservation use, grazing preference or preference, 
permitted use, suspension, and temporary nonuse. A number of commenters 
expressed uncertainty regarding the concept of conservation use, some 
objecting to the inclusion of conservation use as an active use. Others 
indicated that the concept of conservation use may be inconsistent with 
the policy objectives articulated in various statutes.
    Other concerns with the concept were that it implied that grazing 
is harmful to the range, and that permittees applying for conservation 
use should pay the grazing fee and be required to maintain 
improvements. These and other comments on conservation use are more 
appropriately addressed in the discussion of Sec. 4130.2.
    The Department intends that conservation use be an active use 
rather than merely a non-use. Conservation use is intended to protect 
the land and its resources from destruction, improve rangeland 
conditions, or enhance resource values. All of these goals are 
[[Page 9922]] fully consistent with the requirements of governing 
statutes. In fact, conservation use includes a variety of activities to 
improve rangeland conditions. Because the land and the forage involved 
are actively being devoted to accomplishing specific conservation-
oriented objectives, they are deemed actively used. The concept of 
conservation use, and its application to this program, are discussed 
more fully at Sec. 4130.2.
    In general, commenters expressed some confusion regarding 
application of the concepts of suspension and temporary non-use under 
the proposed definitions of these terms. In particular, some commenters 
were concerned that the definitions might be used by BLM to restrict 
active use.
    Temporary nonuse and suspension remain options under the rule 
finalized today. Temporary nonuse is for the convenience of a 
permittee's or lessee's livestock operation and must be included as a 
part of his or her application each year. Therefore, BLM does not 
believe temporary nonuse should be considered active use. The BLM will 
authorize changes in temporary nonuse from year to year, but temporary 
nonuse may only be approved by the authorized officer for up to three 
consecutive years. With regard to changes in use initiated by the 
permittee or lessee, the concept of temporary nonuse is expected to 
continue as the common practice used to respond to fluctuations in the 
weather, the livestock market or other factors beyond the control of 
the operator.
    Suspension of grazing use is initiated by the authorized officer, 
and may be agreed to by the permittee or be the result of a decision by 
the authorized officer. It results, for example, from situations 
requiring a reduction of use of the rangeland to protect the resource 
or where there has been noncompliance. See also the discussions of 
subparts 4110 and 4130.
    Regarding active use, BLM intends to continue allowing changes in 
active use from year to year, depending on conditions. The authorized 
officer can adjust active use and other factors under a permit or lease 
as long as the changes are within the terms and conditions of the 
permit or lease. If the authorized officer determines that changes in 
use must be made outside the terms and conditions, it will be done in 
consultation with the permittee or lessee, the State and other 
interested parties.
    Numerous comments were received on proposed changes to the 
definition of ``grazing preference,'' including the addition of the 
term ``preference.'' Many commenters interpreted the proposed changes 
to mean that preference was being abolished. Others were concerned that 
unless preference refers to a specified quantity of forage, ranching 
operations would be negatively impacted. They stated that preference, 
tied to a specific amount of AUMs, adds value and stability to ranching 
operations, for example, by enhancing the operator's ability to borrow 
money. They also maintained that a preference is a property right and 
that the proposed rule could result in a ``taking.'' And some 
commenters expressed the view that the proposed definition excluded 
owners of water or water rights and that such owners deserve priority 
consideration.
    The Department has changed ``grazing preference'' to preference or 
grazing preference because the terms are used interchangeably and to 
clarify that the term refers only to a person's priority to receive a 
permit or lease, and not to a specific number of AUMs. The term 
``preference'' was used during the process of adjudication of available 
forage following the passage of TGA to establish an applicant's 
relative standing for the award of a grazing privilege. At one time in 
the evolution of grazing administration preference was the amount of 
use expressed in AUMs that any particular permittee may have made 
during the ``priority period''--the four years following passage of 
TGA. Preference is still defined as the relative standing of an 
applicant as reflected in historic records. Through time, common usage 
of the term evolved to mean the number of AUMs attached to particular 
base properties. But this usage dilutes the original statutory intent 
of the term as an indication of relative standing. The term ``permitted 
use'' captures the concept of total AUMs attached to particular base 
properties, and use of this term does not cancel preference. The change 
is merely a clarification of terminology. Issues of valuation of 
permits are discussed in more detail in the FEIS, and takings are 
discussed under ``Takings'' in the General Comments section of this 
preamble.
    With regard to owners of water or water rights, the evolution of 
the term preference was similar. The status of waters and water rights 
that have been recognized as base property would not be affected by the 
rules adopted today. Waters recognized as base property would continue 
to qualify as such. The preference for receiving a grazing permit or 
lease that is attached to base property would not be affected. The 
Department believes that permitted use is the more appropriate term to 
describe and quantify the number of AUMs of forage being allocated.
    The comments on the proposed definition of permitted use were 
similar to those relating to preference. Some commenters asked what 
would happen to existing suspended AUMs under the new concept of 
permitted use. Some suggested that the proposed rule would limit 
grazing to what is stated in the land use plan, and that this would 
effectively cancel the grazing preference. These commenters suggested 
that the result would be significant reductions in grazing, and that 
the regulation would thus ``take'' the rights of the permittee.
    As they did with respect to preference, some commenters stated that 
the definition of permitted use would result in reduced economic 
stability and would eliminate the collateral value of grazing permits. 
They expressed concern that the new definition would negatively affect 
property values and would adversely affect the ability of the permittee 
to obtain financing.
    Commenters further opposed the use of the Land Use Plan to 
determine the permitted grazing use. They argued that these plans are 
not site specific documents, and that it is arbitrary for the 
Department to use them to make site specific decisions. They advocated 
that BLM use actual range condition and trend data on individual 
allotments to make these decisions. Some commenters took the position 
that the proposed definition of permitted use was contrary to statute.
    Permitted use is an end product of the process of renewal or 
issuance of permits or leases. The land use plan provides guidance for 
allocation of land or forage to various uses on a regional scale. In 
the context of grazing, the land use plan sets the basic parameters by 
which permits and leases are issued or renewed. The objectives set in 
the plan are refined in the permit or lease, and permitted use is then 
expressed in AUMs of active use, including both livestock use and 
conservation use, as well as suspended use and temporary nonuse during 
a particular time period. This process and terminology are fully 
consistent with TGA, FLPMA and PRIA. The land use plan allows 
adjustment of the AUM amounts and seasons based on monitoring, other 
studies, or where changes in permitted use or terms and conditions are 
necessary to meet land use plan objectives. Where changes in the 
situation are major, it may be necessary to amend the land use plan, 
thus re-initiating the process. In the absence of a major change in the 
overall [[Page 9923]] situation and where these objectives are being 
met, changes in permitted use through BLM initiative are unlikely. This 
provides a high level of security, stability and predictability from 
year to year.
    Few comments were received on the proposed definitions of actual 
use or utilization. One comment stated that the proposed definition had 
changed the concept from a record of livestock use to a plan for actual 
use, and that the permittee should be able to make good faith changes 
to protect rangeland by changing grazing schedules to respond to 
weather forces. Others suggested that the Department was exceeding its 
authority in applying actual use to the ``number, kind or class of 
livestock.'' Still others suggested that actual use must include all 
animals which consume forage, not just domestic animals. Many 
commenters on the proposed definition of utilization recommended that 
BLM link utilization to actual use and include use of forage by horses, 
burros and wildlife.
    The Department has the authority to apply the concept of actual use 
to ``number, kind or class of livestock.'' Under section 315 of TGA, 
the Secretary has the authority to specify ``numbers of stock and 
seasons of use.'' Additionally, under FLPMA, the Secretary has the 
authority to establish terms and conditions for grazing leases and 
permits. The reporting of actual use is necessary to evaluate the 
effect of grazing practices, and is a fundamental tenet of the science 
of range management. AUMs are a unit of measure of forage consumption 
and allocation. Knowing the number of animals involved and the duration 
of grazing in a specific situation is essential to quantifying the AUMs 
consumed and in setting future numbers and seasons. Actual use and 
utilization or use patterns, when considered either with the current 
year's weather or over time, provides a very complete picture of the 
impact of grazing use on rangeland resources. The same information also 
provides significant insight into opportunities to alter management, to 
improve livestock distribution, plan range improvements or to 
accurately predict the future consequences of continuing the current 
grazing practices.
    Actual use, in the context of this final rule, refers strictly to 
domestic livestock grazing. However, the Department concurs that when 
it is used to evaluate the effect of a particular grazing practice, BLM 
must consider the use made by all grazing animals including wildlife 
and wild horses and burros where they are present. Actual use data can 
be used both for billing purposes and to analyze the impact of grazing. 
Where its intended use is strictly for billing, the data may be 
aggregated for the entire allotment area and entire billing period. 
Where the data are to be used for analytical purposes, it must be 
broken out by the treatment area (frequently a pasture).
    Some commenters submitted comments on the definition of activity 
plan. Most questioned the relationship between the concept and the AMP 
specified in FLPMA. Some asserted that since FLPMA uses the term AMP, 
there is no authority for an activity plan, or that activity plans 
could not relate to grazing and therefore have no place in grazing 
regulations. Others suggested narrowing the concept by applying it 
specifically to grazing areas and for the purpose of achieving grazing 
objectives in order to maintain desirable range conditions.
    Activity plans have been included in the definitions and the text 
of this final rule because there are efficiencies to be gained by 
considering a variety of uses simultaneously in one planning document. 
The Department disagrees that just because FLPMA uses the term AMP, the 
Department has no authority for an activity plan. The Secretary has 
ample authorities under FLPMA, TGA, and PRIA to undertake any planning 
activities necessary to implement the grazing program.
    Many comments were received on the concept of affiliate. Many 
commenters stated that the proposal was vague, discriminatory against 
ranch operators and that it will lead to capricious and arbitrary 
enforcement by BLM. Other commenters stated that ``control'' was poorly 
defined and that the concept should be applied to other parties such as 
the RAC members.
    Some commenters expressed concern about the liability provisions. 
They stated that because of potential liability resulting from this 
provision, banks and other businesses will be less likely to do 
business with ranchers who have grazing permits or leases. Moreover, 
some asserted that ranchers will be less responsible if they know that 
they are not solely liable for their actions. Other commenters asked if 
permittees must have control of affiliates and if affiliates' records 
of performance would be considered when issuing a permit.
    The purpose behind the use of the term affiliate is to promote 
accountability among all parties involved in the control of a grazing 
operation. The term is commonly used in business to identify persons 
having legal ties to each other where accountability is in some manner 
shared. Some permits or leases are issued in the name of one person 
when in actuality there may be other persons closely involved in the 
management of the operation. In the final rule, the Department has not 
adopted proposed provisions referencing percentage of ownership and 
specific relationships such as officers and directors. The term 
``entity'' includes partnerships, corporations, associations, and other 
such organizations. The Department believes that the definition adopted 
better addresses the affiliate relationships typically associated with 
livestock grazing operations.
    The Department does not intend the term ``affiliate'' to be applied 
in an over broad or burdensome manner but rather in a manner that 
recognizes ordinary business relationships. Normally, affiliates will 
be partners, agents and their principals, family members, and trusts or 
corporations involving such individuals. It is unlikely that 
``affiliate'' would include financial institutions.
    Numerous comments were received on the definition of Allotment 
Management Plan and consultation, cooperation and coordination. The 
commenters stated that the proposed definition of the latter term is 
contrary to FLPMA, particularly because they believed it eliminates 
consultation, cooperation and coordination with the lessee or 
permittee. Other commenters stated that the definition did not meet 
standards for local involvement under Section 8 of PRIA, and did away 
with a special and contractual relationship between permittees and BLM.
    The Department intended the change proposed in this definition to 
simplify references to consultative activities and to make usage 
consistent throughout the regulations. Throughout these rules, the 
Department has specifically increased--not decreased--opportunities for 
interaction with the permittee, lessee, States, and the interested 
public. However, because of the confusion generated by the language in 
the proposal, the Department has decided to use the term 
``consultation, cooperation, and coordination'' as it is used in 
existing rules.
    A number of comments were received on the definition of interested 
public. Comments addressed the effects of broadening the public role in 
land use decisions, including the need for BLM to make timely 
decisions. Some comments offered more restrictive definitions of 
``interested public.'' Other comments supported the change in 
definition and requested that the Department clarify in the rule that 
members of the public are not any less [[Page 9924]] affected by 
livestock decisions than are permittees.
    The Department does not agree that the regulations include 
excessive public involvement by expanding opportunities for input into 
grazing management to the interested public. Anyone with a high level 
of interest in shaping objectives, planning courses of action, and 
evaluating results associated with management of the public lands 
should have an opportunity for involvement. Congress has acknowledged 
this interest and makes provisions for it in FLPMA, NEPA, FACA and the 
Administrative Procedure Act (APA). Experience has shown that the 
greater and more meaningful the participation during the formulation of 
decisions and strategies for management, the higher the level of 
acceptance and thus the lower the likelihood of a protest, an appeal or 
some other form of contest. Nevertheless, it will remain the 
responsibility of BLM to make timely decisions. These rules do not 
change existing time frames for public comment or for protests or 
appeals.
    Some comments were received on the definition of grazing permit or 
grazing lease. Commenters asserted that the definition failed to make 
adequate distinction between Section 3 and Section 15 allotments. The 
distinction between Section 3 and Section 15 lands is made at 
Sec. 4110.2-1(a).
    The Department received a few comments on the definition of land 
use plan. Some commenters wanted the definition to require BLM planning 
documents to conform to State or local land use plans. Other commenters 
wanted BLM land use plans to give guidance to the designation of lands 
for grazing. Land use plans provide guidance on a regional scale and 
allocate resource uses and objectives. FLPMA and the subsequent 
planning regulations provide sufficient authority to prevent grazing in 
areas where grazing would conflict with other objectives. Local and 
State governments will be considered members of the interested public 
and invited to participate in the development of land use plans. It is 
not necessary for Federal plans to conform to local or State plans in 
all cases. FLPMA requires the Department's planning process to be as 
consistent as possible with local or State plans, but not to be in 
conformance with them.
    A few comments were received on the definition of range 
improvement. Some commenters supported the use of the range improvement 
fund to benefit livestock; others sought to expand use of the fund to 
support projects intended to improve rangeland. FLPMA directs that ``* 
* * such rehabilitation, protection, and improvements shall include all 
forms of range land betterment including but not limited to, seeding, 
and reseeding, fence construction, weed control, water development, and 
fish and wildlife habitat enhancement * * *'' All uses authorized by 
FLPMA, including improvements to the health of the rangeland, will 
remain valid under this rule.
    The Department received a few comments on the definition of 
unauthorized leasing and subleasing. Commenters stated that the 
proposed subleasing definition limited subleasing, which is necessary 
to rural economic health. The Department believes the final provisions 
relating to unauthorized leasing and subleasing do not discourage 
subleasing that may be necessary to sustain rural economic health. 
Indeed, the current definition of subleasing implies that no subleasing 
is allowed. This new definition, by addition of the word 
``unauthorized,'' clarifies that the Department will approve subleasing 
under certain conditions. The Department believes that it is simply 
good land management for it to know to whom permittees or lessees have 
subleased their grazing privileges, and under what circumstances.
    In response to concerns raised by the commenters, the Department 
has decided to delete provisions requiring the payment of a surcharge 
on subleasing grazing privileges in conjunction with the lease or 
sublease of base property. This is discussed in detail in the section 
of this preamble relating to final Sec. 4130.8 (Sec. 4130.7-1 in the 
proposed rule).
    The Department also received requests that it define de minimus, 
biological diversity, ecosystem, environmentalists, ecosystem 
management, ecosystem management framework and viable population. Some 
commenters suggested that a definition of grazing association be added. 
A number of commenters requested a definition of ``substantial 
compliance.'' The Department believes that these terms are adequately 
defined by common usage.
    In accordance with the above discussion, the Department has decided 
to adopt the proposed definitions, with some changes.
    The definition of affiliate is revised to eliminate references to 
percentage of ownership and specific relationships such as being an 
officer, director, or controlling fiscal or real property resources. 
The Department believes the definition adopted adequately encompasses 
such relationships. The language is also amended by adding reference to 
``applicant'' as well as ``permittee or lessee.'' Finally, ``is 
controlled by, or is under common control with,'' is added after 
``controls,'' to clarify what types of relationships are covered by the 
provision.
    A new definition of annual rangelands is added in response to 
commenters' requests. The term means those areas which are occupied 
primarily by annual plants and which are available for livestock 
grazing during some years. This is a technical term associated with the 
rangeland management program, and the Department agrees that a 
definition will provide clarity to the application of these provisions.
    The definition of conservation use is revised to clarify that it 
can apply to all or a portion of an allotment.
    The definition of consultation, cooperation, and coordination is 
revised to mean a process for communication between BLM and parties 
involved in particular rangeland management decisions.
    A definition of ephemeral rangeland is added to mean areas of the 
Hot Desert Biome (Region) that do not consistently produce enough 
forage to sustain a livestock operation but may briefly produce unusual 
volumes of forage to accommodate livestock grazing. Typically, such 
areas receive less than 8 inches of rainfall each year and lie below 
3,200 feet elevation. This is a technical term associated with the 
rangeland management program and the Department believes that a 
definition will provide clarity to the application of these provisions.
    The definitions of grazing lease and grazing permit are revised by 
the addition of the phrase ``the area authorized for grazing use, or 
both,'' to accommodate situations such as ephemeral or annual rangeland 
in which the area authorized for grazing is used in place of AUMs to 
specify permitted use, because of inconsistent production of forage. 
The definition of land use plan is revised to clarify that the term 
refers to plans developed under 43 CFR Part 1600.
    The definition of range improvement is revised to remove the phrase 
``or provide habitat for'' to ``to benefit'' livestock. This change was 
made to avoid confusion with the concept of wildlife habitat.
    The definition of utilization is revised to clarify that it refers 
to a ``portion'' of forage consumed, which reflects actual practices. 
The proposal used the term ``percentage.'' [[Page 9925]] 
Section 4100.0-7  Cross-References
    This section would have been amended to guide the public to the 
applicable sections of the 43 CFR part 4 when considering an appeal of 
a decision relating to grazing administration, and to 43 CFR part 1780 
regarding advisory committees.
    No comments were received on this section and it is adopted as 
proposed.
Section 4100.0-9  Information Collection
    The proposed rule would have added this section to conform to the 
requirements of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.). 
The section would have disclosed to the public the estimated burden 
hours needed to comply with the information collection requirements in 
this proposed rule, why the information is being collected, and how the 
information will be used by BLM. Several comments were received on this 
section addressing information resources and questions of timeliness 
relating to compliance.
    The intent of this section is to comply with a statutory 
requirement to disclose how much time will be required for regulated 
persons to comply with the information collection requirements of these 
regulations. Which sources of information the Department will use to 
obtain local input is not a germane issue, nor is the time required by 
commenters to comment on these regulations.
    In accordance with the above discussion, the Department has decided 
to adopt the provision as proposed.
Section 4110.1  Mandatory Qualifications
    In the proposed rule, this section would have provided that 
applicants for new or renewed permits or leases and any affiliates must 
be determined by the authorized officer to have a satisfactory record 
of performance. The section would have discussed what satisfactory 
record of performance means for both renewals and new permits. For 
renewals, the proposal would have provided that it means being in 
substantial compliance with the rules and regulations issued and the 
terms and conditions of the existing permit or lease for which renewal 
is sought. In assessing whether an applicant for renewal is in 
substantial compliance, the authorized officer would consider the 
number of prior incidents of noncompliance with the requirements of 43 
CFR Part 4100. The authorized officer can include in this consideration 
the nature and seriousness of any noncompliances. For new permits, it 
would have meant not having had any State grazing permit or lease 
within the Federal grazing allotment, or any Federal grazing permit or 
lease, cancelled within the previous 36 months, and not being barred 
from holding a Federal grazing permit or lease by court order.
    The proposal further discussed the determination of affiliation. It 
would have provided that in determining affiliation, the authorized 
officer would have considered all appropriate factors including, but 
not limited to, common ownership, common management, identity of 
interests among family members, and contractual relationships. This 
provision would have ensured that all parties who had the ability to 
control operations on a permit or lease, not just the immediate 
permittee or lessee, had a record of good stewardship of the land.
    Additionally, the proposal would have clarified that mortgage 
insurers, natural resource conservation organizations, and private 
parties whose primary source of income is not the livestock business, 
could meet the criteria for qualifications for a grazing permit or 
lease.
    Finally, the proposal would have required applicants to submit 
applications and any other information requested by the authorized 
officer to determine that all qualifications have been met. This 
provision would have clarified that applicants cannot refuse to provide 
BLM with information needed to evaluate applications for permits or 
leases.
    The Department received a substantial number of comments on this 
section. Major themes expressed in the comments pertained to the 
Department's rationale and legal authority for the provisions, 
opposition to finding applicants to be qualified in cases where the 
applicant was not actively involved in the livestock business, concerns 
about how various terms would be defined and applied in determining 
qualification, the perceived potential of the provision to adversely 
affect permit tenure, property values, and financing, and BLM's ability 
to implement the provisions as worded.
    Many comments opposed allowing persons not engaged in the livestock 
business to qualify for grazing permits and leases. Some commenters 
asserted that this provision, in combination with provisions for 
conservation use, would result in non-grazing interests acquiring and 
retiring grazing permits, would cause deterioration of the land, and 
would be inconsistent with TGA. Similar comments were also received on 
Sec. 4100.0-5 Definitions and Sec. 4130.2 Permits or leases.
    There was also considerable concern about the requirement that 
permit applicants have a satisfactory record of compliance. In 
particular, commenters asked how terms such as ``permit violations'' 
and ``satisfactory record of performance'' would be defined, who would 
make the determination of satisfactory performance, and whether the 
provisions would be applied consistently across BLM administrative 
boundaries. One comment suggested that BLM and permittees or lessees 
should agree to how terms will be defined and applied prior to the 
issuance of a new permit, to enable both parties to understand their 
status. Others asserted there was no statutory basis for this 
provision. Some had a concern that evaluating compliance was unduly 
burdensome on the agency.
    One comment stated that the basic principle of having a 
satisfactory record was reasonable because it was ``little different 
than a private landowner refusing to lease to a troublesome 
individual.'' The same commenter was concerned, however, that the 
provision gave authorized officers broad investigative powers that 
could result in an invasion of privacy. Commenters also expressed the 
opinion that only serious violations of permits or leases should be 
considered in applying the qualification provisions to prevent 
arbitrary adverse action.
    Some commenters questioned the validity of considering the 
historical record of compliance, asserting that current performance is 
what is relevant. Still others stated that the provision did not go far 
enough in conditioning qualification on past performance. For instance, 
one commenter stated that any revoked State or Federal lease or permit 
should be the basis for denying new or renewed permits, asserting this 
indicated the permittee is unable or unwilling to be a responsible 
steward of public lands. Some commenters stated that 36 months was too 
short a time, and advocated a five or six year review period. 
Additionally, it was suggested that willful, repeat violators, 
reflected by multiple revocations of Federal or state permits, should 
be permanently barred from grazing Federal lands. It was also suggested 
that the burden of proof should be on the permittee or lessee.
    Some commenters expressed opposition to considering performance 
connected with State leases in determining qualifications, questioning 
the Department's authority and the constitutionality of the provision. 
One comment said that it would discourage [[Page 9926]] permittees from 
leasing State lands, and in turn would hurt State income.
    Several comments specific to qualifications for renewals stated 
that the concept of denial for noncompliance would decrease a 
permittee's security of tenure, in turn leading to less investment in 
permits and a decreased ability to achieve rangeland objectives. Some 
commenters were concerned that nonrenewal of a permit would decrease 
the value of the permittee's or lessee's private property and 
improvements, affected their ability to secure financing, and not 
renewing the lease constituted a ``taking,'' and the provision was 
contrary to TGA. Some asserted that disqualification on the basis of 
cancellations of other permits and leases should extend to renewals, 
not just new permits. Others suggested that applicants be disqualified 
when other permits or leases are suspended (in addition to cancelled 
permits and leases) or when not in compliance with other permits and 
leases at the time of application.
    There was also some concern about the ability of BLM personnel to 
determine affiliation. One commenter asked whether he would be 
responsible for the actions of someone he sold his ranch to. An Indian 
tribe that holds permits and subsequently leases the permits to 
individual tribal members expressed concern that the tribe would be 
judged by the behavior of the individual permittees under the concept 
of affiliation.
    The statutory basis for these regulations is found in FLPMA and 
TGA. FLPMA (43 U.S.C. 1740) authorizes the Secretary to promulgate 
rules and regulations necessary to implement the requirements of the 
Act. Regarding requirements for first priority for renewal, 43 U.S.C. 
1752 requires among other things that applicants must be found to be in 
compliance with the terms and conditions of the permit and pertinent 
rules and regulations. The amendments pertaining to the 
disqualification of applicants are intended to reflect the requirements 
of TGA and FLPMA that public lands be managed in a way that protects 
them from destruction or unnecessary injury and provides for orderly 
use, improvement, and development of resources. The Department believes 
that the provisions of this section of the rule are critical to BLM's 
ability to ensure that permittees and lessees are good stewards of the 
land. The provisions will benefit good stewards by ensuring tenure in 
the renewal of permits and leases and by giving them an advantage in 
the issuance of new permits and leases. Comments on ``takings'' are 
discussed in the General Comments discussion above.
    Neither conservation use nor elimination of the requirement that 
applicants must be engaged in the livestock business is inconsistent 
with TGA. The TGA gives preference to landowners engaged in the 
livestock business but does not require it. This change is made 
necessary by the increasing number of part time ranchers, permits held 
by financial institutions and other non-ranching organizations, and 
permits where the livestock operator is in an initial developmental 
stage and is not yet ready to run cattle on the range.
    The concepts of ``permit violations,'' ``satisfactory record of 
performance'' and ``substantial compliance'' are defined in general 
terms by the text of this final rule. Application on a case-by-case 
basis will be done by the authorized officer, within the framework 
established by this final rule, based upon review of the record. For 
renewals, it will extend only to review of the permittee's record on 
the permit or lease for which renewal is sought. On new permits, it 
will include a review of State and Federal leases within the prior 36 
months, and of any existing judicial bar on holding a permit. 
References to permits cancelled for violations are used to distinguish 
such cancellations from administrative cancellations such as those that 
might occur when the land is to be devoted to another public purpose. 
Basing qualifications on whether past permits and leases have been 
cancelled for violation is intended to focus attention on those types 
of violations that justified decisive and substantial corrective 
action. As with all decisions under 43 CFR part 4100, denial of permit 
and lease applications under these provisions is subject to appeal 
under subpart 4160.
    Consistency in application of the qualification requirements is of 
concern to the Department. These regulations will assist in achieving 
standardization, as will periodic information bulletins, instruction 
memoranda, technical guides, handbooks and training. The comment 
suggesting that permittees and BLM seek a mutual understanding of these 
provisions at the time of permit issuance is the type of guidance that 
may be provided. An appeal process is available under subpart 4160 when 
the permittee or lessee believes the regulations have been 
inappropriately interpreted in a specific circumstance.
    Determining compliance with the terms and conditions and rules and 
regulations at the time of permit renewal stems from a statutory 
provision (43 U.S.C. 1752(c)). The Department expects that a finding of 
noncompliance will be an exception rather than a common occurrence. It 
is not feasible to require the authorized officer to investigate 
applicants to identify unrecorded instances of noncompliance, as 
suggested by several commenters. The resources required to conduct such 
a check would not be worth the results.
    The Department disagrees that looking back at an applicant's 
history of performance on Federal or State grazing leases will violate 
privacy protections. The information used to evaluate historical 
performance will be established records that are available to the 
public. As stated above, the Department will use records of performance 
to confirm the ability of the applicant to be a steward of the public 
land. Although current performance may indicate stewardship, it does 
not provide as complete information as does the applicant's longer-term 
record of performance. However, consideration of the record is not 
without limitation. The Department chose the 36-month cut off of 
consideration of applicant and affiliate performance as a fair yet 
sufficiently rigorous measure of potential stewardship. The 36-month 
look-back applies only to applications for new permits or leases.
    In regards to the comment that willful and repeated violations 
should result in a permanent debarment, the Department has chosen to 
reject the recommendation as excessively harsh. Due to the severity of 
such a penalty it is best left to the judicial system.
    In essence, where there is a record of prior noncompliance, the 
burden of proof is on the permittee. The record of compliance will be 
determined based upon a review of the public record. If there are any 
extenuating circumstances to be considered, it will be the 
responsibility of the permittee to support them.
    An applicant's record on State permits is relevant to consideration 
of the applicant's compliance record for purposes of obtaining new 
permits. If an applicant has violated the terms and conditions of a 
State lease to such an extent that the lease was cancelled, it is 
reasonable to assume that person is more likely to violate the terms or 
conditions of a Federal lease than is a person with a good record of 
compliance on State leases or permits. This is particularly true since 
consideration of State leases is limited to the allotment for which a 
new Federal permit or lease is sought. The Department disagrees that 
these provisions will discourage leasing of State lands. Only those few 
persons who [[Page 9927]] commit violations that result in the 
cancellation of their State permits will be affected.
    The requirement of applicants for renewal to be found to be in 
compliance with terms and conditions and the pertinent rules and 
regulations on the permit or lease for which renewal is sought is not 
new; it stems directly from FLPMA (43 U.S.C. 1752(c)). While 
disqualification from obtaining a new permit or lease or a renewal of a 
permit or lease under this provision may in some instances affect 
financing or other aspects of ranch economics, the principal objective 
of these provisions--encouraging and recognizing stewardship--is 
consistent with the long-term stability and economic viability of a 
ranch operation.
    The Department does not agree that suspensions, in addition to 
cancellations, should serve as a basis for disqualifications. 
Suspensions may be imposed for a wide range of problems. While some may 
be serious enough to warrant denial of additional permits, others may 
not be. If a person continues to perform so poorly that BLM suspends 
one or more permits, the authorized officer has the discretion to take 
the next step, cancellation. In that case, the person would become 
ineligible for a new permit for the next 36 months.
    In regards to difficulties in determining affiliation, the 
Department does not intend that such a determination will require an 
in-depth investigation. Rather, the authorized officer will rely on 
readily available information and material provided by the permittee or 
lessee through the normal permit or lease application process.
    Once an individual has sold his ranch and a permit has been 
transferred, the original owner will not be considered responsible for 
it. The concept of affiliate is intended to take into account those 
persons who actually have the ability to control the manner by which a 
grazing operation is conducted. The Department does not believe this 
extends to buyer-seller relationships unless as a result of the 
transaction the seller retains some interest in the operation, such 
that it meets the definition of ``affiliate.''
    The concern of the tribal government is well founded. If the tribe 
receives permits and in turn leases them to individual tribal members, 
the Department assumes that the tribe's relationship to the tribal 
members meets the definition of control. Through the terms of the 
leases, if by no other means, the tribe can exercise control over its 
members.
    In accordance with the above discussion, the Department has decided 
to adopt the rule as proposed, with the text subdivided and 
redesignated and headings added for clarity. Additionally, the word 
``relevant'' is added to paragraph (d) to modify ``information'' to 
clarify that the authorized officer is authorized to request 
information from the applicant that is relevant to the application 
process, not just any type of information.
Section 4110.1-1  Acquired Lands
    The proposed rule would have revised this section to clarify that 
BLM will apply the terms and conditions of existing grazing permits on 
leases on newly acquired lands in effect at the time of acquisition of 
the lands. This change was proposed to make clear that terms and 
conditions of permits and leases in effect at the time land is acquired 
will be honored subject to the provisions of the transfer of ownership 
(statute, title, etc.). Mandatory qualifications will not apply to such 
permits or leases until the expiration of their current term.
    The Department received very few comments on this section. Some 
expressed concern that this provision would mean that lands grazed at 
the time of acquisition might later be turned to conservation use.
    It is true that, under this provision, lands which were grazed at 
the time of acquisition could, with the expiration of the permit, be 
turned to conservation use. However, the commenters should keep in mind 
that conservation use will be issued only at the request of the 
permittee, and will be required to be consistent with applicable land 
use plans. Additional information on conservation use can be found in 
this preamble in the discussion of Sec. 4130.2.
    The Department has decided to adopt this provision as proposed.
Section 4110.2-1  Base Property
    Under the proposed rule, this section would have been amended by 
clarifying that base property is required to be capable of serving as a 
base for livestock operations but it need not be used for livestock 
production at the time the authorized officer finds it to be base 
property.
    A provision would have been added to clarify that the permittee's 
or lessee's interest in a base water previously recognized as base 
property would still qualify as base property following authorized 
reconstruction or replacement required to continue to service the same 
area.
    The Department received comments on this section ranging from those 
who questioned the justification for implementing the concept that base 
property be capable of supporting livestock use to those who questioned 
how the Department would determine what was capable of supporting 
livestock and what was not. Others questioned whether base property 
must be contiguous.
    The Department has introduced the concept of ``capability'' of base 
property to support livestock in order to a) recognize that not all 
private land holdings are of sufficient size and character to support a 
livestock operation, and b) provide for situations where persons or 
organizations other than traditional livestock operators, such as 
insurers, financial organizations, or conservation organizations, 
acquire a ranch but may not at the moment be in the livestock business 
at that location. The Department believes this is in the public 
interest. As long as the base property is capable of supporting a 
livestock operation, the property should be eligible to be considered a 
base of livestock operations. The provision is not intended to remove 
the requirement for permit applicants to have base property, nor is the 
provision intended to circumvent BLM's authority to decide whether 
public lands should or should not be grazed.
    The Department does not believe it is necessary for the base 
property to be supporting a livestock operation at present to be 
eligible to be considered base property. The proposal would allow for 
the acquisition or retention of a grazing permit or lease during 
periods when cattle are not actually being grazed, as long as it were 
possible to conduct grazing operations. For example, an operation could 
be in a start-up phase, planned to last for several years, prior to 
actually placing cattle on the land. While some permittees may not 
intend to initiate a grazing operation, under the proposal any extended 
conservation use would be allowed by BLM only if in conformance with 
approved land use plans or other activity plans and standards and 
guidelines.
    The Department disagrees that contiguous property should 
automatically be considered capable, or that only contiguous properties 
should be considered capable of serving as a base. In some cases, there 
is more than one contiguous property, and a decision must be made as to 
which would serve best as base property. Also, some contiguous 
properties may not actually be capable of supporting grazing 
[[Page 9928]] operations, due to their size or character. For example, 
some may have been so sub-divided that they could no longer support 
such operations. Finally, statutory provisions in TGA clearly allow 
non-contiguous property to be considered base.
    Under the final rule adopted today, property merely has to be 
capable of supporting an operation. Property currently serving as base 
property would in all likelihood be found to be capable of serving as a 
base of livestock operations.
    The Department intends the provision regarding water to recognize 
that in some cases base waters need to be redeveloped, and the holders 
of those base waters should not lose base property status just because 
they had to redevelop the water.
    For the reasons discussed above, the Department has decided to 
finalize the provision as proposed, with one minor change. The words 
``would utilize'' is substituted for ``utilizes'' for consistency with 
the concept that base property need only be capable of supporting a 
grazing operation; no operation need be in existence at the time the 
property is determined to be suitable as base property.
Section 4110.2-2  Specifying Permitted Use
    In the proposed rule, this section would have been renamed 
``Specifying permitted use'' replacing the existing title ``Specifying 
grazing preference.'' It would also have been amended by replacing the 
term ``grazing preference'' with ``permitted use'' because the latter 
is more appropriate terminology to describe and quantify the number of 
AUMs of forage being allocated in a permit or lease. Also, the section 
would have been amended to clarify that levels of grazing use on 
ephemeral or annual ranges are established on the basis of the amount 
of forage that is temporarily available pursuant to vegetation 
standards prescribed by land use plans or activity plans.
    The Department received a number of comments concerning the 
proposal to substitute ``permitted use'' for ``grazing preference'' and 
the corresponding change in policy in the concept of preference being 
limited to a priority position for the purpose of obtaining a grazing 
permit or lease. Comments ranged from those who felt the amendment was 
a good idea to those who believed the change would lead to financial 
insecurity for grazing operations. Others asked for definitions of the 
terms ``annual rangelands'' and ``ephemeral rangelands.''
    The Department has decided to adopt the proposed provision, with 
several clarifying changes to reflect the initial intent of the 
proposed rule. Reference to authorizing use ``where livestock use is 
authorized based upon forage availability'' is moved to modify 
``ephemeral rangeland.'' This clarifies that it is ephemeral rangelands 
where use must be determined based on actual forage availability. The 
word ``authorized'' is replaced by ``permitted'' in the third sentence 
for consistency with other provisions in this final rule, including the 
first sentence of this paragraph. The phrase ``activity plan, or 
decision of the authorized officer'' is added after ``land use plan'' 
to clarify that such plans or decisions may be the basis for 
determining permitted use. Finally, the word ``occasional'' is deleted 
in two places. While ephemeral rangelands are used only occasionally, 
due to lack of forage availability under normal conditions, annual 
rangelands are generally available for grazing. Since this provision 
refers to both types of rangelands it is inaccurate to use the term 
``occasional'' to refer to forage availability.
    The Department has considered the suggested wording changes and has 
determined that the proposed language best represents the intent of 
this section, with the exceptions noted. The new definition of the term 
``preference'' is considered at Sec. 4100.0-5.
    The final rule does eliminate the concept of ``preference AUMs'' 
and replaces this term with the term ``permitted use.'' Permitted use 
is not subject to yearly change. Permitted use will be established 
through the land use planning process, a process which requires data 
collection and detailed analysis, the completion of appropriate NEPA 
documentation, and multiple opportunities for public input. 
Establishing permitted use through this planning process will increase, 
not decrease, the stability of grazing operations. The rule clearly 
defines preference to be a superior or priority position for the 
purpose of receiving a grazing permit or lease. Therefore, the 
Department does not anticipate there will be a decrease of financial 
stability for grazing operations.
    There is no need to eliminate the concept of ``grazing preference'' 
totally. The concept of assigning first priority to certain persons is 
well-established in TGA and is an appropriate way to contribute to the 
stability of dependent livestock operations and the western livestock 
industry. The redefinition of preference is intended to resolve the 
confusion and misinterpretation of the concept that has developed over 
the years. In particular, the redefinition eliminates the shorthand 
jargon of ``preference AUMs'' that has developed to refer to the number 
of AUMs included in a permit or lease offered to a holder of grazing 
preference.
    In response to commenters' suggestions, definitions of annual and 
ephemeral rangelands are added to this final rule. They can be found in 
Sec. 4100.0-5. Regarding permitted use for annual rangelands, the 
Department has made some minor wording changes in this final rule for 
clarity.
    The provisions pertaining to ephemeral ranges address designated 
ephemeral ranges--specific areas that have been recognized through 
BLM's provisions for ephemeral grazing. There are some smaller areas 
scattered throughout the desert southwest and Great Basin that produce 
amounts of forage sufficient for livestock grazing only occasionally 
and that are included in perennially-grazed allotments. These generally 
isolated areas can be recognized at the time livestock carrying 
capacity is determined and can receive further protection through the 
standards and guidelines that will be developed as a result of this 
final rule.
Section 4110.2-3  Transfer of Grazing Preference
    In the proposal, this section would have been amended to reflect 
the new requirements of Sec. 4110.1 that applicants for new or renewed 
permits or leases and any affiliates must be determined by the 
authorized officer to have a satisfactory record of performance. It 
would also have been amended by the addition of a new paragraph (f) 
requiring that new permits or leases stemming from the transfer of base 
property be for a minimum period of three years. The Department 
proposed this provision to enhance the protection and improvement of 
rangelands and to reduce the administrative work of processing 
transfers. The section would also have been amended by the substitution 
of the term ``permitted use'' for the term ``grazing preference'' where 
the reference pertains to an amount of livestock forage. This change is 
discussed at Sec. 4110.2-2.
    Most of the comments submitted on this proposed section addressed 
the 3-year limitation on transfers, which some viewed as arbitrary and 
without rational basis. Others read the proposal to mean that three 
years was an upper limit on transfers, and suggested that a 10-year 
term was needed to provide stability to the ranching operation, and to 
assist in obtaining operating capital from lenders. Others questioned 
the accuracy [[Page 9929]] of the cross-reference in the proposed 
language.
    The Department disagrees that the 3-year minimum for transfers 
stemming from base property leases is arbitrary and without rational 
basis. This minimum is intended to reduce administrative burden and to 
promote good stewardship of the land. The TGA requires the Department 
to ensure ``orderly use, improvement, and development of the range.'' 
Rapid turnover of permit and lease holders is not consistent with this 
requirement. Persons who hold preference on an allotment but who 
sublease their public land grazing privileges to short term occupants 
rather than using the allotment for grazing cattle are not making 
productive use of the land nor promoting the stability of the livestock 
industry.
    The Department does not envision that the 3-year minimum for 
transfers will impact the normal transactions in the livestock 
business. It will not interfere with the sale of private lands or with 
the subsequent transfer of the permit or lease to the new owner. The 
provision does not encumber private lands--it only affects the 
privileges associated with a grazing permit or lease. The effects of 
the 3-year limit on transfers on a public lands rancher's equity has 
been addressed in detail in the FEIS. The final rule provides for 
transfers of less than three years in specified circumstances, for 
example where base property changes ownership. Transfers are allowed 
for up to 10 years. Three years is a lower limit.
    Regarding qualifications for a permit, transferees should be 
expected to meet the same qualification criteria as other public land 
permittees or lessees. Upon the completion of a transfer the transferee 
will become the permit or lease holder. Given that some short-term 
transferees may be less motivated to manage for the long-term health of 
the rangelands, ensuring that transferees have a history of compliance 
is of great importance.
    The cross reference is intended to ensure that transferees meet the 
mandatory qualifications and own or control base property. While the 
language in the proposal, referring to general Sec. 4110.2 is not 
incorrect, more specific references to the provisions which the 
transferee must meet, those in Secs. 4110.2-1 and 2-2, may be more 
useful. The final language is modified accordingly.
    The Department has decided to adopt a final version of the proposed 
rule with only one minor change, which reflects the new cross 
reference.
Section 4110.2-4  Allotments
    In the proposed rule, this section would have been expanded to 
clarify that the authorized officer's existing authority to designate 
and adjust allotment boundaries included the authority to combine or 
divide allotments when necessary for efficient management of public 
rangelands. The proposal also would have specified that modification of 
allotments must be done through agreement or decision of the authorized 
officer. These two changes were intended to provide administrative 
clarity to the process. The proposal also would have added a 
requirement expanding consultation to the State having lands or 
responsible for managing resources in the area, and the interested 
public, as well as the affected grazing permittees or lessees. Finally, 
consistent with the change in definition of consultation, cooperation, 
and coordination discussed in Sec. 4100.0-5, the proposal would have 
eliminated the words ``cooperation and coordination.''
    The final rule adopts the language of the proposed rule except that 
the terminology ``consultation, cooperation, and coordination'' is 
included in the final rule.
    Most of the comments on this proposed section addressed two issues: 
deletion of the terms ``coordination and cooperation'' and inclusion of 
States and, particularly, the interested public in the consultation 
process. Deletion of the terms ``coordination and cooperation'' was 
viewed by some commenters as a violation of the intent of Section 8 of 
PRIA which would prevent affected interests from exercising their right 
to consult, cooperate, and coordinate.
    Some commenters objected to the inclusion of the interested public 
in the consultation process on changing allotment boundaries because 
they believed that it would interfere with currently established 
boundaries, create uncertainty for operators, and decrease the 
incentive to maintain improvements. Other comments suggested that 
consultation on allotment boundary changes should be with the RAC, not 
the interested public.
    Few comments were addressed specifically to the provision allowing 
the authorized officer to combine or divide allotments. Commenters 
asked how deeded lands within allotment boundaries would be handled, 
and stated that adjusting allotment boundaries was a taking of private 
property. Others asked who would bear any expenses associated with 
boundary changes. Still others raised takings issues, and asked who 
would bear the expense associated with boundary changes.
    As noted above in the discussion of Sec. 4100.0-5, because of the 
confusion caused by the proposed deletion of ``cooperation and 
coordination'' the Department has decided to use the full phrase 
``consultation, cooperation and coordination'' in cases where broad 
based input in agency deliberations are encouraged.
    The Department believes that inclusion of the interested public is 
important because the public is a stakeholder in the administration of 
the public lands. Additionally, decisions regarding designation and 
adjustment of allotment boundaries are subject to NEPA, and the public 
must be involved in decisions subject to the NEPA process, because of 
the requirements of that statute. Currently, BLM notifies all affected 
interests of actions such as allotment boundary changes. The Department 
does not expect there will be significant changes in current BLM 
procedures to accommodate the requirements for consultation with the 
interested public, beyond including any interested persons in such 
routine notifications. Thus, the Department does not anticipate any 
increased uncertainty or decreased incentive to maintain improvements. 
While RACs might be consulted in certain cases, such as a controversial 
adjustment or where significant funding is required, the Department 
does not believe it is feasible to involve RACs in every routine 
action.
    The Department envisions that most adjustments in allotment 
boundaries would have little effect on ranch units. Typically, such 
adjustments are to realign boundaries to be consistent with actual use 
of the allotment. For instance, an allotment boundary may be adjusted 
to allow an adjacent ranch to make use of public lands that because of 
natural physical barriers are not readily available to the current 
permittee. Adjustments in allotment boundaries will in no way affect 
the ownership of private lands.
    The Department does not believe that this provision would involve 
any ``takings'' issues. Permits and leases to graze public lands within 
grazing allotments do not constitute property rights. Adjustments in 
allotment boundaries that result in a transfer of grazing preference 
will be subject to the provisions of Sec. 4120.3-5 pertaining to the 
assignment of range improvements and corresponding compensation for 
such improvements. Takings issues are addressed further in the General 
Comments discussion in this preamble. [[Page 9930]] 
    Decisions on who should bear the expense of constructing fences 
made necessary by adjustments in allotment boundaries will be made on a 
case-by-case basis. Depending on the circumstances, BLM, the grazing 
permittee or lessee, or others may bear the costs. For instance, an 
adjustment to an allotment boundary made at the request or for the 
benefit of a permittee may be made subject to the permittee's 
acceptance of fencing costs. Where a fence is to be constructed to 
enhance the establishment or re-establishment of, for example, bighorn 
sheep, BLM or State wildlife management agency may assume the costs.
    In accordance with the above discussion, the Department has decided 
to adopt the provision as proposed, with one change. The terms 
``cooperation and coordination'' are included in the opening sentence.
Section 4110.3  Changes in Permitted Use
    This section would have been amended by replacing the term 
``grazing preference'' with ``permitted use.'' This change is discussed 
at Sec. 4110.2-2. The section would also have clarified that changes in 
permitted use must be supported by monitoring, field observations, 
ecological site inventory, or other data acceptable to the authorized 
officer. This change would have broadened the sources of information 
that could be relied upon by BLM as a basis for changing permitted use.
    The Department received a number of comments on this section. The 
majority of the comments dealt with the information that BLM would use 
to establish permitted use. Other commenters added that BLM should 
consider the vegetation impacts that come from other resource uses in 
calculating permitted use. Some commenters stated that no grazing 
should be permitted until an accepted monitoring plan is carried out or 
that permitted use in riparian areas should be evaluated every three 
years and adjusted as needed.
    The Department agrees that professionally accepted and scientific 
information is needed to justify changes in permitted use. Many factors 
affect the type of information needed, the appropriate level of detail, 
and the time span over which such information should be acquired--
resource conditions, resource values, climate, local environmental 
conditions, etc. The BLM can obtain information from a number of 
sources in evaluating the need to change permitted use, in addition to 
the traditional source, monitoring data. Other valid sources of 
information include direct observation, ecological site inventory and 
trend data. There is no sound scientific reason to limit the authorized 
officer's flexibility by restricting him or her to one source of 
information or to place specific timeframes for monitoring in the 
regulations.
    Changes in permitted use are subject to consultation with 
permittees, States having lands or managing resources in the area, and 
interested publics. Furthermore, permittees and lessees can appeal 
final decisions regarding changes in permitted use (See Secs. 4110.3-1 
and 4110.3-2 and subpart 4160). Given these constraints, the Department 
does not agree that the authorized officer has too much latitude.
    The Department agrees that other resource uses should be evaluated 
in calculating permitted use. At the present time, wildlife and wild 
horse and burro utilization levels are used in the calculations of 
permitted use within an allotment.
    In accordance with the above discussion, the Department has decided 
to adopt the rule as proposed, with the following minor changes. The 
phrase ``assist in'' is added before the words ``restoring ecosystems 
to properly functioning condition.'' These words have been added to 
emphasize that the Department does not expect that rangeland health 
will be restored as a result of single grazing management decisions, 
such as changes in permitted use on one permit. Rather, restoration of 
rangeland health will result from a series of decisions and actions 
over time, including actions pertaining to uses other than grazing, all 
of which will work together to establish significant improvements in 
the condition of the rangelands.
    Further, the phrase ``to conform with land use plans or activity 
plans'' is added as one objective of changes in permitted use to 
clarify that, under 43 CFR Part 1600 and provisions in subpart 4120 of 
this final rule, BLM is required to conform with decisions made in the 
land use plans or other activity plans. Where grazing use does not 
conform with such plans it must be modified.
Section 4110.3-1  Increasing Permitted Use
    The proposed rule would have revised this section by requiring that 
a permittee, lessee or other applicant be determined to be qualified 
under subpart 4110, in order to be apportioned additional forage under 
subsection (c), by substituting the term ``permitted use'' in place of 
``grazing preference,'' and by clarifying the requirements for 
consultation. Also, reference to a permittee's or lessee's demonstrated 
stewardship would have been added to factors to be considered in 
allocating available forage.
    The final rule adopts the text of the proposed rule, except that 
the final rule requires that ``consultation, cooperation, and 
coordination'' take place prior to the apportionment of additional 
forage under paragraph (c).
    The largest group of comments on this section asserted that the 
interested public should not be involved in BLM's decisions to increase 
forage temporarily. Others expressed concern about involvement of State 
agencies or that increases should be subject to local government land 
use plans. Other commenters stated that considering demonstrated 
performance and compliance made decisions to increase permitted use 
uncertain. Others stated that increases should be processed using the 
established consultation, coordination and cooperation procedures 
including Section 8 consultation.
    The Department believes that it is appropriate to involve the 
public in the management of the public rangelands. Similarly, State and 
local governments will be given an opportunity to comment on such 
decisions. This is consistent with Section (202)(f) of FLPMA. Thus, any 
decisions to increase or decrease permitted use or forage within a 
grazing allotment will include not only the permittee but also the 
interested public and the State having lands or managing resources in 
the area. However, the BLM authorized officer will retain the authority 
and responsibility to make final decisions on increased permit usage.
    Additional forage available for livestock grazing on a sustained 
yield basis is first apportioned to permittees or lessees in proportion 
to their stewardship efforts which resulted in increased forage 
production. Any additional forage (AUMs) following this apportioning 
could be available to other permittees/lessees or outside interested 
applicants, assuming they are qualified under Sec. 4110.
    Record of performance and compliance are criteria for adjudicating 
conflicting applications, not for allocating additional forage, unless 
the grazing allotment is a community grazing allotment involving 
several different permittees/lessees. Any final decision by the agency 
can be appealed under the procedures set forth in subpart 4160.
    The Department agrees that increases should be done with 
consultation, coordination, and cooperation, and the 
[[Page 9931]] final rule makes this change. For further discussion, see 
Sec. 4110.0-5. Otherwise, the provision is adopted as proposed.
Section 4110.3-2  Decreasing Permitted Use
    The proposed rule would have amended this section by revising the 
heading to change the term ``active use'' to ``permitted use.'' This 
change would have been consistent with the proposed definitions of 
these two terms, as discussed at Sec. 4100.0-5. Paragraph (b) also 
would have been amended to provide that when monitoring and field 
observations show grazing use or patterns of grazing use are not 
consistent with the fundamentals of rangeland health (titled ``national 
requirements'' in the proposed rule) or standards and guidelines or are 
otherwise causing an unacceptable level or pattern of utilization, the 
authorized officer must reduce permitted grazing use or otherwise 
modify management practices. Paragraph (b) would also have added 
ecological site inventory and other acceptable methodologies to 
monitoring as ways of estimating rangeland carrying capacity as the 
basis for making adjustments in grazing use. Subsequent adjustments 
could be made as additional data were collected and analyzed.
    Paragraph (c) would have been deleted to remove the provision 
requiring the authorized officer to hold those AUMs comprising the 
decreased permitted use in suspension or in nonuse for conservation 
purposes. Existing paragraph (a) of this section, which was not 
proposed to be changed, would continue to provide for the temporary 
suspension of active use due to drought, fire, or other natural causes, 
or to installation, maintenance, or modification of a range 
improvement.
    Some commenters stated that the proposed language is inconsistent 
with legal requirements. Some commenters stated that the term 
``corrective action'' is ``vague and subjective.''
    Numerous commenters stated that it is necessary for the authorized 
officer to determine the cause of range problems before decreasing 
permitted use and questioned whether methods other than monitoring 
would be suitable for determining carrying capacities. Some of these 
comments suggested correcting other uses, such as wild horses and 
wildlife, before permitted use is reduced. Some commenters expressed 
concerns on the monitoring and inventory methodologies BLM would use. 
Others stated that reductions should be placed in suspended use rather 
than eliminated.
    This regulation is not inconsistent with statutory requirements. A 
discussion pertaining to legal authorities and requirements is 
presented under ``General Comments.''
    The BLM authorized officer will make a determination on a case-by-
case basis as to what corrective actions are appropriate. In some cases 
the corrective action may not result in a reduction in permitted AUMs. 
For instance, a change in use periods or a temporary suspension in use 
may be determined to be the appropriate action. In other instances, 
data may show that other uses of the public lands need to be modified. 
The Department believes that it would be inconsistent with its mandate 
to manage the public rangelands to allow an allotment to continue to 
deteriorate while prolonged monitoring studies are conducted in those 
instances where other reliable measures of rangeland health indicate a 
need for action.
    BLM uses a variety of accepted methodologies and available data to 
determine carrying capacities of grazing allotments and to identify 
unacceptable levels or patterns of use. Typically, findings of one form 
of data collection are corroborated with other data before making 
reductions in livestock use. The BLM Technical Reference 4400-5 
(Rangeland Inventory and Monitoring Supplemental Studies) describes 
acceptable methodologies for estimating forage production. 
Additionally, BLM intends to develop rapid assessment techniques that 
can be used to evaluate rangeland health as represented by established 
standards and the guidelines to be followed in meeting standards and 
the fundamentals of rangeland health. (See subpart 4180.)
    Although in some cases reductions made under this section of the 
rule may be carried in temporary suspension, the Department does not 
believe that it serves the best interests of either the rangeland or 
the operator to continue to carry suspended numbers on a permit, unless 
there is a realistic expectation that the AUMs can be returned to 
active livestock use in the foreseeable future. Should additional 
forage become available there are provisions at Sec. 4110.3-1 to 
address increases in permitted use. Decisions resulting in a decrease 
in permitted grazing use are subject to the administrative remedies 
outlined in subpart 4160, including a right of appeal.
    In accordance with the above discussion, the Department has decided 
to adopt the provision as proposed, with one minor change. The term 
``authorized grazing use'' in paragraph (b) is changed to ``permitted 
grazing use,'' to make this provision more consistent with the 
definitions included in this final rule.
Section 4110.3-3  Implementing Reductions in Permitted Use
    The proposed rule would have renamed the section and removed 
existing paragraph (a) and other requirements for phased-in reductions 
in grazing use. This proposal was intended to provide the authorized 
officer more flexibility to deal with situations in which immediate 
action was necessary to protect rangeland resources; phase-in periods 
for reduction in grazing use could still have been available if 
determined by the authorized officer to be appropriate.
    The proposal would also have redesignated existing paragraph (b) as 
paragraph (a) and amended it by removing the requirements to phase-in 
reductions in use over a five year period. The proposal also would have 
removed the terms ``consultation, coordination and cooperation,'' and 
``suspension of preference'' and added in their place the terms 
``consultation'' and ``reductions in grazing use,'' respectively. These 
changes would have been consistent with changes in definitions 
discussed at Sec. 4100.0-5. It would also have provided, 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.
    Existing paragraph (c) would have been redesignated as paragraph 
(b) and amended to remove the word ``temporary'' because that term 
implies that protection would be needed for only one season. In 
actuality, the influences of natural events such as drought could 
significantly affect vegetation health and productivity for several 
months or years after a drought has passed. Other minor amendments 
would have clarified action to be taken by the field manager and made 
the language concerning provisions for making decisions effective when 
necessary to protect the resource consistent with language on that 
provision in proposed subpart 4160. Language would have been added 
specifying that such decisions would have remained in effect pending 
any appeal of the decision, unless a stay were granted by the OHA. The 
overall intent of the changes in this paragraph was to provide the 
authorized officer with the authority needed to implement decisions to 
close allotments or portions of allotments or modify authorized grazing 
use when immediate action was [[Page 9932]] necessary to protect 
rangeland resources.
    A number of commenters stated that the phase-in of reductions 
should not be eliminated because it promotes industry stability and 
gives livestock operators a chance to adjust their operation. Others 
suggested that the authorized officer should restrict access for a 
temporary period of time rather than making reductions in ``emergency'' 
situations. Commenters also objected to removal of the terms 
``coordination and cooperation'' in redesignated paragraph (a) as being 
a violation of PRIA. Others objected to involvement of the interested 
public.
    Numerous commenters raised concerns over the lack of documentation 
required to implement reductions in grazing use, and stated that 
prolonged monitoring should be required. Others stated that ``full 
force and effect'' provisions should not apply to reductions and that 
the RACs should be consulted prior to reductions and emergency 
closures.
    The Department will implement any increase or decrease as outlined 
in the final rule by documented agreement or by decision of the 
authorized officer. These documents may include a provision for a 
phase-in period. However, in some situations, immediate action is 
needed to protect rangeland resources, including wildlife and riparian 
areas, because of conditions such as drought, fire, flood, insect 
infestation or other conditions that present an imminent likelihood of 
significant resource damage. The Department has concluded that in these 
situations immediate corrective action is warranted, without the 
constraints of a phase-in period. Of course, even where a decision is 
implemented immediately, an adversely affected party would retain the 
ability to petition the OHA for a stay of the decision.
    The Department disagrees that the provisions of this section are 
inconsistent with any statutory requirements. These issues are covered 
more fully above in the General Comments section of the preamble. The 
words ``cooperation and coordination'' have been added to paragraph 
(a). As noted at Sec. 4100.0-5, the Department has decided to use the 
phrase ``consultation, cooperation, and coordination'' in cases where 
broad based input into agency deliberations is sought. The Department 
believes that such input is critical to effective management of public 
rangeland.
    The authorized officer will make decisions about implementing 
reductions in permitted use based on monitoring, field observations, 
ecological site inventory or other acceptable data. The final rule at 
4110.3-2(b) covers adequate monitoring and documentation necessary to 
implement reductions. The Department believes that the language in the 
rule expanding the sources of information that the authorized officer 
can use to implement such changes is desirable to provide flexibility 
to the process and to ensure that the authorized officer can take 
immediate action to protect the resource, including making decisions 
effective immediately or on a specific date, when conditions require 
it.
    While in some specific circumstances a RAC may be involved in a 
decision to reduce permitted use, the Department does not believe it is 
feasible to consult the councils for every grazing management decision.
    In accordance with the above discussion, the Department has decided 
to adopt the provision as proposed, with the following changes. The 
term ``cooperation and coordination'' is added back into paragraph (a). 
In paragraph (b), 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. Such decisions may be placed into effect upon issuance or on a 
specified date and will remain in effect during any appeal unless a 
stay is granted.
Section 4110.4-2  Decrease in Land Acreage
    The proposed rule would have amended paragraph (a) by removing the 
words ``suspend'' and ``suspension'' and by changing the term ``grazing 
preference'' to ``permitted use'' consistent with other changes 
throughout the proposal. As a result, decreases in public land acreage 
available for grazing would no longer have associated forage 
allocations carried on a permit or lease as suspended use.
    The major concerns commenters raised with respect to this section 
involved compensation for lost range improvements and AUMs and the 
elimination of the terms ``suspend'' and ``suspension.'' The existing 
regulation provides for compensation to the permittee for his or her 
contribution in the permanent range improvements developed within areas 
that are being devoted to a public use that precludes livestock 
grazing. Compensation is not required for the reduction or loss of 
available livestock forage due to a change of use, which would include 
cases of use being reduced to protect the rangelands. This provision is 
not being changed.
    The final rule has removed ``suspend'' and ``suspension'' because 
it does not serve the best interests of either the rangeland or the 
operator to continue to carry suspended numbers on a permit unless 
there is a realistic expectation that the AUMs can be increased due to 
increased forage availability. If such numbers are carried, the 
permittee or lessee may have an unrealistic expectation for increases 
in AUMs in the future. In cases where the acreage is being reduced, it 
is not likely that such an increase will occur. Therefore, there 
appears to be no good reason to refer to suspended AUMs in the 
regulation covering decreases in land acreage. If rangeland conditions 
improve to the extent that increased usage is possible, the provisions 
of Sec. 4110.3 can be used to increase permitted use accordingly.
    All decisions pertaining to a grazing permit or lease will involve 
consultation with the affected permittee and affected interests. All 
final decisions of the authorized officer will be subject to the 
administrative remedies discussed in subpart 4160, including the right 
of appeal.
    In accordance with the above discussion, the Department has decided 
to adopt the provision as proposed.
Section 4120.2  Allotment Management Plans and Resource Activity Plans
    The proposed rule would have amended this section by revising the 
heading and by adding reference to other activity plans that may 
prescribe grazing management. This provision was intended to reflect 
BLM's belief that activity plans that provide direction for the major 
resources and uses of a particular area are more effective management 
tools, and are more consistent with an ecosystem approach, than are 
single source planning documents.
    The proposed rule would have clarified that draft AMPs, or other 
draft activity plans, could be developed by other agencies, permittees 
or lessees, or interested citizens. This provision was intended to 
broaden the base of participation in the planning process, and to 
provide interested parties, including interested citizens, an 
opportunity to facilitate the planning process through such 
participation.
    Another proposed provision would have clarified that AMPs or other 
activity plans, including those prepared [[Page 9933]] by other 
parties, would not have become effective until approved by the 
authorized officer. This provision is consistent with authority granted 
to the Secretary by 43 U.S.C. 1752.
    Paragraph (a) would have been amended by replacing the reference to 
district grazing advisory boards with RACs and including State resource 
management agencies in the activity planning process. This change would 
have been made for conformance with the proposals on subpart 1780, and 
with the Department's intent to broaden the base of participation in 
the grazing management process.
    Another amendment would have changed the existing provision 
regarding the flexibility granted to permittees or lessees under an AMP 
to specify that it would be determined on the basis of demonstrated 
stewardship. The requirement for earning flexibility was intended as an 
incentive for grazing operators to manage for the improvement of 
rangeland conditions. Additionally, it was intended to recognize that 
permits and leases operated by good stewards require less 
administration.
    The proposed rule would have clarified that the inclusion of other 
than public lands in an AMP or other activity plan is discretionary. 
The use of ``shall'' in the existing regulation could have been read to 
require inclusion of such lands.
    The amendment would also have specified that a requirement of 
conformance with AMPs be incorporated into the terms and conditions of 
the grazing permit or lease. This proposal would have changed a 
provision in existing paragraph (c) which required that the plan 
itself, rather than a requirement to conform with the plan, be included 
in the terms and conditions of the permit or lease. This provision was 
intended to conform with existing practice regarding how AMP decisions 
are reflected in permits and leases.
    Proposed paragraph (c) would have been a new provision. It would 
have provided that the authorized officer give an opportunity for 
public participation in the planning and environmental analysis of 
proposed AMPs affecting the administration of grazing and give public 
notice concerning the availability of environmental documents prepared 
as a part of the development of such plans, prior to implementing them. 
It would also have provided that the decision document following the 
environmental analysis would be considered the proposed decision for 
the purposes of subpart 4160 of this part. This provision was intended 
to streamline administrative processes by allowing BLM to combine NEPA 
analysis with the activity plan process. Additionally, the provision 
assists the grazing permittees and lessees by clarifying that decisions 
regarding AMPs can be appealed through the standard appeals process 
specified in subpart 4160.
    The Department received a number of comments on this section. Most 
frequent comments reflected perceptions that the proposed rule would 
eliminate the requirement that BLM ``consult, coordinate and 
cooperate'' with the permittee. Many stated that to allow participation 
by the interested public would severely delay the process. Others said 
some provisions, such as using resource activity plans to serve as the 
functional equivalents of AMPs, are outside the Secretary's 
jurisdiction. Some respondents raised questions such as whether 
development of the AMP was discretionary, and whether standards and 
guidelines would be imposed retroactively on existing plans.
    A number of other comments were received on various details of the 
process and scope of AMPs and other activity plans. These comments will 
prove useful in developing subsequent guidance for BLM's field 
management staff.
    The proposed rule included the term ``consultation, cooperation and 
coordination'' in the requirements for preparing AMPs and other 
activity plans under paragraph (a) but used the term ``consultation'' 
in paragraph (e) pertaining to revising and terminating such plans. In 
the rule adopted today, the term ``consultation, cooperation and 
coordination'' is substituted for ``consultation'' in paragraph (e) and 
remains as proposed in paragraph (a).
    The Department disagrees that involvement of the interested public 
will delay the final outcome of the planning process. While at some 
stages, involvement of the interested public in AMPs may slow the 
process, their involvement also will result in fewer drawn-out protests 
and appeals and more rapid implementation on the ground. The Department 
intends that interested parties will be involved in all levels of 
planning, including the development of land use plans and the 
preparation of site-specific management activity plans such as AMPs. It 
remains the responsibility of BLM to make timely decisions. These rules 
do not change existing time frames processes such as protests or 
appeals.
    The provision allowing resource activity plans to serve as the 
functional equivalent of AMPs is not outside the Secretary's authority, 
and the final rule retains this provision. The concept of more 
integrated resource activity plans better meets the statutory 
requirements of FLPMA and NEPA, provides a more efficient way to plan 
for the management of a specified area, and allows more complete 
analysis of public comment and cumulative effects. Activity plans that 
serve as the functional equivalent of AMPs will meet the FLPMA 
definition of AMPs (43 U.S.C. 1702(k) and 1752(d)) by addressing the 
specific conditions of rangelands within the grazing allotments covered 
by such plans.
    The Department does not intend that standards and guidelines will 
automatically be incorporated into plans upon the effective date of 
this rule. Rather, standards and guidelines will be incorporated into 
individual plans as the need for modification of the plans is 
identified. Subpart 4180 directs the authorized officer to take action 
no later than the start of the next grazing year to initiate 
significant progress toward rangeland health in cases where the 
authorized officer determines that existing management practices are 
failing to ensure significant progress toward meeting the standards or 
toward conforming with the guidelines. Under this provision, terms and 
conditions of existing permits could be revised, under the procedures 
specified in new Sec. 4130.3-3, to incorporate new terms and conditions 
to address resource condition issues. Such decisions by the authorized 
officer will be subject to rights of appeal under subpart 4160, as will 
decisions to adopt, terminate or modify an AMP or its functional 
equivalent.
    In accordance with the above discussion, Sec. 4120.2 is adopted as 
proposed with the exception of minor edits, the addition of the 
explicit reference to other activity plans serving as the functional 
equivalent of AMPs, and the substitution of the term ``consultation, 
cooperation and coordination'' for the term ``consultation'' in 
paragraph (e).
Section 4120.3-1  Conditions for Range Improvements
    The proposed rule would have amended this section by inserting a 
new paragraph (f) specifying that range improvement projects would be 
reviewed in accordance with NEPA requirements, and that the decision 
document issued as a result of that review would be considered the 
proposed decision for purposes of subpart 4160 of this part.
    This provision would not have introduced any new requirement. 
Rather, it would have clarified in these [[Page 9934]] regulations 
requirements that already exist under NEPA. The provision would also 
have ensured that the same document would have been used to satisfy 
NEPA requirements and to provide a final--and appealable--decision to a 
permittee or lessee. This would have prevented duplication of effort on 
the part of the agency or the permittee or lessee.
    In effect, the provision that the NEPA decision document would have 
served as the proposed decision of the authorized officer for purposes 
of subpart 4160 would have directed appeals of those decisions through 
the administrative remedies process provided in that subpart. Under the 
proposal, that subpart would have provided an opportunity for a field 
hearing on the facts of the case by an administrative law judge, rather 
than requiring the appeal to go directly to the Interior Board of Land 
Appeals. This would have streamlined the appeals process.
    The Department received few comments on this section. Most 
expressed concern that following the NEPA process would result in 
unnecessary delay in approving environmentally sound range improvement 
projects, or would discourage such improvements from being made.
    The Department has decided to adopt this provision as proposed, 
with one minor change. The term ``range improvement'' is added between 
the words ``cooperative'' and ``agreement'' in paragraphs (b) and (e). 
This term was added for consistency with other provisions in the final 
rule. This change clarifies that the cooperative agreements being 
referred to are range improvement agreements, not cooperative 
agreements between BLM and the States, or any other type of cooperative 
agreement.
    The Department does not expect that the NEPA review process will 
unduly delay implementation of range improvement projects. The rule 
retains the NEPA requirement. Following the NEPA process is a 
requirement of law and is current practice; it is not just a 
requirement of this regulation.
Section 4120.3-2  Cooperative Range Improvement Agreements
    In the proposed rule, the heading of this existing section would 
have been revised to clarify that this section deals with cooperative 
range improvement agreements as opposed to ``cooperative agreements'' 
with other Federal or State agencies. The proposed rule would have 
amended this section to specify that the United States would have title 
to all new permanent grazing-related improvements constructed on public 
lands. The proposed section would have provided that title to temporary 
grazing-related improvements used primarily for livestock handling or 
water hauling could be retained by the permittee or lessee. This change 
would have conformed with the common law practice of keeping title of 
permanent improvements in the name of the party holding title to the 
land, and with existing Forest Service policies. The amendment would 
not have changed any agreements currently in effect.
    The Department received many comments on this section. Some 
commenters expressed concern that the provisions would lead to fewer 
range improvements and declining ranch values, range conditions and 
wildlife populations. Others questioned if reconstructions were 
considered new improvements and whether existing improvements would be 
affected by the requirement that the United States retain title to 
improvements. Many stated that the provision could afford environmental 
groups the opportunity to take control of range improvements and felt 
livestock operators should be consulted if improvements are planned. 
Others raised takings questions.
    The Department has adopted a modified version of the proposal. The 
title of the final rule is changed to clarify that the section affects 
cooperative range improvement agreements. Paragraph (b) is revised by 
adding examples of types of permanent range improvements that will be 
authorized by cooperative range improvement agreements. The existing 
language of Secs. 4120.3-2 and 4120.3-3 of the current rule has long 
stated that the title of nonremovable improvements shall be in the name 
of the United States and the title of removable range improvements 
shall be in the name of the permittee or lessee, or shared in 
proportion to the amount of contribution, in the case of situations 
covered by Sec. 4120.3-2. This final rule clarifies further these 
provisions regarding temporary and permanent improvements. The United 
States will have title to new permanent range improvements. The rule 
conforms BLM policy with the common law practice of keeping title of 
permanent improvements in the name of the party holding title to the 
land, and with current Forest Service administrative provisions.
    Additionally, the adopted language clarifies that the provision 
applies to cooperative range improvements agreements after the 
effective date of the rule. The final rule does not adopt proposed 
paragraph (c), regarding temporary structural range improvements, as 
that paragraph duplicates requirements in final Sec. 4120.3-3, Range 
improvement permits.
    Finally, a statement is added to clarify that any contribution made 
by a permittee or lessee to such a permanent improvement will be 
documented by BLM to ensure proper credit for the purposes of 
Sec. 4120.3-5, Assignment of range improvements, and Sec. 4120.3-6(c), 
Removal and compensation for loss of range improvement.
    The Department disagrees that this provision will result in fewer 
range improvements and declining range values, range conditions, and 
wildlife populations. The Forest Service's experience does not support 
this contention. Improvements add to the management effectiveness and 
the value of the ranch operation. Any contributions the permittee makes 
to range improvements are recognized and documented. The incentive for 
a permittee to invest in range improvements is that it is in his or her 
financial interest to improve use of the grazing allotment.
    Reconstruction within the bounds of the original range improvement 
permit will not require a new agreement. However, work that is outside 
of the original range improvement permit or authorization will be 
considered a new improvement. Determinations as to whether a particular 
instance is a reconstruction or a new construction will be made on a 
case-by-case basis.
    The Department disagrees that this provision will allow other 
parties to take control of range improvements. New permanent range 
improvements will be issued by cooperative range improvement agreement 
with the permit holder, and will be in the name of the United States, 
regardless of who the permittee is. Responsibilities of each 
cooperator, the grazing permit holder and the United States will be 
documented in the cooperative range improvement agreement.
    The provision does not limit the Secretary's authority to cooperate 
with other agencies and organizations to plan, develop, and maintain 
improvements on the public lands to the benefit of other public land 
resources. Where such developments may affect livestock operations, 
permit holders will be consulted. Decisions to determine the need for 
range improvements will not be affected by this provision. The rule 
continues the policy that range improvement needs may be identified by 
the operator, BLM, or interested members of the public. The 
responsibility for cost to be borne by the [[Page 9935]] respective 
cooperators in new range improvement projects will be described in the 
cooperative range improvement agreement, and will be determined on a 
case-by-case basis.
    For discussion of takings issues, see the General Comments section 
of this preamble.
Section 4120.3-3  Range Improvement Permits
    Paragraph (a) of this section would have been amended to change 
existing provisions authorizing permittees or lessees to apply for a 
range improvement permit to install, use, maintain, or modify range 
improvement projects. Two changes would have been made to this 
provision. First, the reference to permanent improvements would have 
been deleted. This change would have been consistent with the proposed 
revisions to Sec. 4120.3-2 above, which would have consolidated all 
provisions regarding permanent improvements in that section. Secondly, 
the phrase ``within his or her designated allotment,'' which referred 
to improvements needed to achieve management objectives, would have 
been changed to ``established for the allotment in which the permit or 
lease is held.'' This change was intended to provide clarity to the 
provision and to remove the gender references in the existing text.
    Existing paragraph (b) would have been amended to add a list of 
types of improvements the Department considers to be temporary. The 
amendment would have clarified that permanent water improvement 
projects would be authorized through cooperative range improvement 
agreements consistent with existing Department policy. The proposed 
rule would have clearly established that title to permanent range 
improvements authorized after the effective date of the rule would be 
held by the United States. It would also have added a companion 
provision specifying that a permittee's or lessee's contribution to an 
improvement would have been documented by the authorized officer, to 
ensure proper credit for purposes of Secs. 4120.3-5 and 4120.3-6(c).
    The proposed rule would have removed existing paragraph (c). The 
proposal would have created a new paragraph (c). This paragraph would 
have provided that the permittee or lessee must cooperate with other 
operators that may be temporarily authorized to use forage. 
Furthermore, this new provision would have specified that a permittee 
or lessee would be reasonably compensated for the use and maintenance 
of improvements and facilities by the operator who has an authorization 
for temporary grazing use; the authorized officer may resolve questions 
concerning compensation. Where a settlement cannot be reached, the 
authorized officer would issue a temporary grazing authorization to 
compensate the preference permittee or lessee. The intent of this 
proposal was to protect the interest of the permittee or lessee in 
range improvements in those infrequent cases where a third party makes 
use of the allotment.
    Many commenters questioned whether the proposal was within the 
authority of TGA. They also stated that the provisions pertaining to 
title of range improvements would remove incentives for permittees to 
make improvements, would make it difficult to obtain financing, would 
adversely affect wildlife and local economies because fewer 
improvements would be built, and could jeopardize existing ``Section 
4'' (TGA) permits.
    Other commenters were concerned that the Department would require 
permittees or lessees to construct range improvements at their expense. 
Some commenters asked what requirements there would be for maintenance. 
They also expressed concern about whether there would be a problem of 
access to improvements to which they did not have title.
    Commenters expressed opposition to provisions in proposed paragraph 
(c) because, in their view, it seemed to be a new provision to allow 
nonpermittees to graze within another's grazing allotment.
    Under the provisions adopted here, livestock operators may hold 
title to removable and temporary improvements authorized under range 
improvement permits. Such improvements are largely funded by livestock 
operators.
    The Department disagrees with the assertion that the provisions of 
this section are outside the Secretary's authority as established in 
TGA. Section 4120.3-3, as proposed and adopted in this final rule, 
implements the provisions of TGA found at 43 U.S.C. 315. The Department 
also disagrees with the contention that the title provisions will 
significantly affect either the amount of permittee and lessee 
contributions to range improvement or their ability to secure financing 
for range improvement. The installation of range improvements will 
remain in the permittee or lessee's interest as long as the improvement 
assists in the management of the livestock operation or results in an 
improvement in the condition and long-term productivity of the range. 
The Forest Service has long had a policy of retaining title to 
permanent improvements and has not observed that private contribution 
has been discouraged. Similarly, financial institutions, in reviewing 
loan applications, consider the value of the range improvement in terms 
of how the improvements will affect the profitability of the ranch 
operation.
    This rule affects the title of improvements authorized after the 
effective date of this rule. Title to currently authorized improvements 
will not be affected.
    The provisions pertaining to the use of range improvements by 
parties temporarily authorized to use an allotment would not have 
established new policy toward the issuance of nonrenewable permits. 
Proposed paragraph (c) would merely have made explicit how the 
renewable permit or lease holder's interests in range improvements 
would be protected in those instances where another party is authorized 
to graze within the allotment on a temporary nonrenewable basis.
    In accordance with the above discussion, the Department has decided 
to adopt this section as proposed, with one major change. In the rule 
as adopted, the Department has removed reference to permanent water 
developments from this section. The provision dealing with water 
improvements and their authorization through cooperative range 
improvement agreements is moved to final Sec. 4120.3-2, thus 
consolidating all provisions regarding permanent improvements in that 
section.
    The existing language of Secs. 4120.3-2 and 4120.3-3 of the current 
rule has long stated that the title of nonremovable improvements shall 
be in the name of the United States and the title of removable range 
improvements shall be in the name of the permittee or lessee. This 
final rule clarifies further these provisions regarding temporary and 
permanent improvements. Because the discussion of permanent 
improvements no longer occurs in this section, the provision regarding 
documentation of a permittee's or lessee's contributions to such 
improvements is no longer pertinent to new range improvement permits. 
However, the provision for documenting contributions is added to 
Sec. 4120.3-2.
    Two other minor changes were made in the final language. The 
surplus word ``established'' is not included in final paragraph (a). 
For clarity, the Department has added ``structural'' as a modifier of 
``temporary improvements'' in final paragraph (b). [[Page 9936]] 
Section 4120.3-8  Range Improvement Fund
    The proposed rule would have added a new section to this part that 
addressed the distribution and use of the range betterment funds 
appropriated by Congress through Section 401(b) of FLPMA for range 
improvement expenditure by the Secretary. The proposed amendment would 
have provided for distribution of the funds by the Secretary or 
designee; one-half of the range improvement fund would have been made 
available to the State and District from which the funds were derived, 
the remaining one-half would have been allocated by the Secretary or 
designee on a priority basis. All range improvement funds would have 
been used for on-the-ground rehabilitation, protection and improvements 
of public rangeland ecosystems. Current policy requires the return of 
all range improvement funds to the District from which they were 
collected. The BLM has found this prevents use of the funds in areas 
where they are most needed and results in some offices experiencing 
difficulty expending available funds efficiently. The proposed 
amendment would have corrected the imbalance by ensuring that the funds 
are distributed on a priority basis.
    The proposed rule would have clarified that range improvement 
includes activities such as planning, design, layout, modification, and 
monitoring/evaluating the effectiveness of specific range improvements 
in achieving resource condition and management objectives. Maintenance 
of range improvements and costs associated with the contracting of 
range improvements was added to the list of activities for which range 
improvement funds may be used. Maintenance was an allowable use of 
range improvement funds prior to a policy change made in 1982.
    The proposed rule would have required consultation with affected 
permittees, lessees, and the interested public during the planning of 
range development and improvement programs. RACs would also have been 
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. The provisions 
are adopted as proposed.
    The Department received a few comments on this section. Most 
concerns were about how funds would be expended. Some commenters 
asserted that the proposal was inconsistent with the Department's 
statutory authority, that all funds, not just a portion, should return 
to the District or State from which they came and that all funds should 
go to construction, not to planning or projects not directly related to 
livestock production. Others stated that all funds should be used for 
ecosystem enhancement projects or supported the concept that some funds 
should be spent on projects to rehabilitate the range and distributed 
on the basis of priority needs.
    Commenters also stated there should be requirements to spend funds 
in a cost-effective manner. Some supported involvement of the RACs and 
the interested public in the decisionmaking process on expenditure of 
the funds. Other commenters asserted that the change will result in 
fewer improvements being constructed, and that BLM should not require 
permanent range improvements be constructed at the expense of a 
permittee or lessee as a requirement to obtain or hold a permit or 
lease.
    The Department's authority for this provision is found in Section 
401 of FLPMA, which directs that 50% of the monies put in the range 
betterment account be authorized to be appropriated and ``* * * made 
available for use in the district, region, or national forest from 
which such monies were derived * * *'' It further provides that the 
remaining 50% ``* * * shall be used for on-the-ground range 
rehabilitation, protection, and improvements as the Secretary concerned 
directs.'' While it has been common practice for the Secretary to 
return the discretionary 50% to the District of origin in recent years, 
that is not required in FLPMA. The Department intends to allocate the 
discretionary 50% on a priority basis to better meet BLM management 
objectives and respond to resource condition concerns.
    FLPMA also provides that funds can be expended on projects other 
than those directly related to livestock-oriented projects. The act 
specifies that ``* * * such rehabilitation, protection, and 
improvements shall include all forms of range land betterment including 
but not limited to, seeding, and reseeding, fence construction, weed 
control, water development, and fish and wildlife habitat enhancement * 
* *'' FLPMA also allows the expenditure of funds for activities 
necessary to put projects on the ground such as project planning, 
design, layout, modification and monitoring. An important goal of the 
Department in expending the range betterment fund will be to improve 
the health of the public rangelands. However, all uses authorized by 
FLPMA will remain valid under this rule including improvements that 
primarily benefit livestock management.
    FLPMA does not specify in what proportions the funds should be 
spent. The Department believes that the provision, adopted today, 
providing the maximum flexibility allowed by law in the distribution 
and use of these funds, will improve the effectiveness of the program 
and result in increased overall improvement to the public rangelands. 
Grazing advisory boards received an accounting of the fund 
expenditures. It is anticipated that RACs will be afforded the same 
information.
    Because under the rule as adopted the Department will be able to 
expend some funds on a priority basis, rather than returning 100% of 
the funds to the State or District of origin, the distribution of range 
improvement projects may shift somewhat. However, this does not mean 
that the total number of projects will decline. The BLM will not 
require livestock operators to fund the construction of range 
improvements. Operators' participation in the development of range 
improvements will be voluntary. However, there may be some cases where 
BLM will have to alter grazing use in the absence of needed 
improvements.
    In accordance with the above discussion, the Department has decided 
to adopt the rule as proposed.
Section 4120.3-9  Water Rights for the Purpose of Livestock Grazing on 
Public Lands
    Today's action adopts with one addition this section of the 
proposed rule which 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. This section is prospective, 
clarifies BLM's water rights policy for livestock watering on public 
lands, and makes BLM policy consistent with that of the Forest Service.
    The section does not create any new Federal reserved water rights, 
nor does it affect valid existing 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 
remain subject to the provisions of 43 U.S.C. 666 (the McCarran 
Amendment) and Section 701 of FLPMA (43 U.S.C. 1701 note; disclaimer on 
water rights). Finally, the proposal does not change 
[[Page 9937]] existing BLM policy on water rights for uses other than 
public land grazing, such as irrigation, municipal, or industrial uses.
    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 this final rule.
    Some comments questioned whether the language violates State or 
Federal law. Some commenters questioned whether the language would deny 
permittees the full use of water and what the impact would be on 
transferring the point of use of water from or to public lands. Some 
commenters suggested that the regulation should state that BLM will not 
have special priority in water adjudications and that the regulation 
does not affect water on private lands.
    The Department's intent in adopting this section is to provide 
consistent water policy guidance to BLM personnel. It is not the 
Department's intent to create any new Federal reserved water right, nor 
does it affect valid existing rights. It has been BLM's policy to seek 
water rights under State substantive and procedural requirements; the 
language adopted today does not alter that policy.
    The language adopted today clarifies 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. Questions such as 
qualified applicants, what constitutes beneficial use, and quantity and 
place of use are addressed through State procedural and substantive 
law. Thus, the Department is not attempting, through the language 
adopted today, to prejudge the outcome of proceedings under State water 
law. For the same reason, the Department has not adopted suggestions to 
include language relating to priority of rights or water rights on 
private lands. These matters are addressed by State substantive and 
procedural requirements.
    Other comments questioned whether the provision would have a 
negative impact on adjacent private property, wildlife, and range 
conditions. Clarification of BLM water rights policy regarding 
livestock watering on public lands should not have a negative impact on 
adjacent property. The provision does not address water rights on non-
Federal lands. The language adopted today also does not change existing 
BLM policy on water rights for uses other than public land grazing, 
such as irrigation, municipal, or industrial uses. The Department has 
concluded that wildlife and range conditions will be benefited by 
clarifying BLM water policy. It is the Department's intent in adopting 
the language of this section to promote the use of the public lands on 
a sustained yield basis for multiple use purposes.
Section 4120.5  Cooperation in Management
    The proposed rule would have added a new section on cooperation in 
management to recognize and regulate cooperation with, among others, 
State, county, Indian tribal, local government entities and Federal 
agencies. The provision is adopted as proposed.
    Very few comments were received on this section, and most 
commenters combined their comments with comments on Sec. 4120.5-1. Some 
commenters requested that ``coordinate and consult'' be added after 
``cooperate'' and that the Department remove references to 
``institutions, organizations, corporations, associations, and 
individuals.'' Others asked that the Department give special 
consideration to the customs, culture and economic impact of projects 
on existing local communities.
    The Department will ensure public involvement and cooperation, in 
the management of the public lands to the maximum extent possible. All 
citizens have a stake in the management of the public lands. FLPMA is 
very specific as to the requirement for cooperation with local land use 
planning. It requires the Secretary to coordinate land use planning and 
management activities with State and local land use planning and 
management programs and directs that land use plans shall be consistent 
with State and local plans to the maximum extent possible under Federal 
law and the purpose of the Act.
    The section deals with the requirement for cooperation in 
management. There is no basis to add the terms ``coordinate and 
consult.'' Section 315 of TGA specifically calls for ``cooperation'' 
with agencies engaged in conservation or propagation of wildlife, local 
associations of stockmen, and State land officials.
    All proposed project and planned actions undertaken to implement 
these regulations will require more local level assessments. 
Regulations dealing with impact assessment require consideration of 
socio-economic impacts.
Section 4120.5-1  Cooperation With State, County, and Federal Agencies
    This section would have recognized existing cooperation with State 
cattle and sheep boards, county and local noxious weed control 
districts, and State agencies involved in environmental, conservation, 
and enforcement roles related to these cooperative relationships. The 
TGA, Noxious Weed Control Act, FLPMA, PRIA and other statutes and 
agreements require cooperation with State, county and local 
governments, and Federal agencies.
    Many commenters wanted the Department to strengthen the language 
requiring cooperation with local and county governments and their land 
use planning efforts. Other commenters wanted the list to include 
private land owners, only groups that can prove an affected interest in 
the livestock business or only individuals who have invested as much 
money as the livestock operators. Many commenters requested that the 
Department strike references to the Wild Free-Roaming Horse and Burro 
Act and expressed that Animal Damage Control and similar predator 
control agencies should be listed as a cooperating partner.
    Other commenters wanted the Department to show greater deference to 
State wildlife agency decisions on critical range for wildlife species, 
to strengthen cooperation on noxious weeds, and to use its authority to 
reduce the spread of noxious weeds by requiring certified weed free 
forage and by spending more rangeland improvement funds on weed 
control.
    The Department believes that the provision as proposed adequately 
addresses its legal responsibilities and its desire to cooperate with 
State, county and Federal agencies, and has adopted it with no changes.
    This section requires cooperation in management. It does not deal 
with the Department's responsibilities to consult with permittees or 
lessees or other private parties. The section derives in part from the 
statutory provision in section 315h of TGA, which requires the 
Secretary to provide, by suitable rules, for cooperation with local 
associations of stockmen, State land officials, and official State 
agencies engaged in conservation or propagation of wildlife interested 
in the use of the grazing districts. While other authorities would 
allow the Secretary to expand the reach of this provision, under TGA 
the Secretary could not limit it to those with [[Page 9938]] an 
``affected interest.'' That terminology relates to different statutory 
provisions, and is not germane here.
    Additionally, FLPMA is very specific as to the requirement for 
cooperation with local land use planning. It requires the Secretary to 
coordinate land use planning and management activities with State and 
local land use planning and management programs and directs that land 
use plans shall be consistent with State and local plans to the maximum 
extent consistent with Federal law and the purpose of the Act.
    The Department will ensure public involvement and cooperation, 
including State wildlife agency input, in the management of the public 
lands to the maximum extent possible. However, it is not appropriate to 
single out wildlife agencies for greater deference in these 
regulations. On a case-by-case basis, such deference may be 
appropriate.
    The specifics of noxious weed programs are not germane to this 
section. It is the intent of this rangeland management effort to 
improve the Department's ability to address such issues, including 
through increased cooperation with State agencies responsible for weed 
control.
Subpart 4130--Authorizing Grazing Use
    Many sections of subpart 4130 have been redesignated from the 
existing CFR section identifiers. These changes are intended to put the 
various sections into more logical groupings. The following table shows 
the relationship between section numbers in the existing rules and 
section numbers in the rule adopted today:

------------------------------------------------------------------------
                                                              Final rule
                       Old CFR section                          section 
------------------------------------------------------------------------
4130.1......................................................    4130.1-1
4130.1-1....................................................    4130.4  
4130.1-2....................................................    4130.1-2
4130.2......................................................    4130.2  
4130.3......................................................    4130.5  
4130.4......................................................    4130.6  
4130.4-1....................................................    4130.6-1
4130.4-2....................................................    4130.6-3
4130.4-4....................................................    4130.6-4
4130.5......................................................    4130.7  
4130.6......................................................    4130.3  
4130.6-1....................................................    4130.3-1
4130.6-2....................................................    4130.3-2
4130.6-3....................................................    4130.3-3
4130.7......................................................    4130.8  
4130.7-1....................................................    4130.8-1
4130.7-2....................................................    4130.8-2
4130.7-3....................................................    4130.8-3
4130.8......................................................    4130.9  
------------------------------------------------------------------------

In addition to changes in many section numbers, the headings of several 
of the sections have been revised to provide more descriptive titles. 
The following discussion will use the new numbers and cross reference 
the old numbers.
Section 4130.1  Applications
    A new title, Applications, is added at Sec. 4130.1, to improve the 
logical structure for the subpart.
Section 4130.1-1  Filing Applications (Formerly Section 4130.1)
    In the proposal, there would have been two minor changes in this 
section from the existing rule. ``Conservation use'' would have been 
substituted for ``nonuse'' in the parenthetical phrase to clarify that 
such use must be specified in the application. Another new phrase would 
have specified that applications for annual grazing authorizations, 
which in the proposal included active grazing use and temporary nonuse, 
also had to be filed with BLM.
    The Department received very few comments on this section. The few 
comments that the Department did receive concerned the concept of 
``conservation use.'' This term is discussed at Sec. 4130.2.
    Upon further consideration, the Department believes that 
substituting ``conservation use'' for ``nonuse'' may be confusing, 
because conservation use is actually a subcategory of active use. 
Furthermore, the meaning of the other phrase proposed to be added to 
this section can be covered by existing language. Accordingly, the 
Department has decided not to finalize the proposed changes to this 
section. However, to improve the structure and logic of the subpart, 
and to clarify the purpose of this section, it is retitled, ``Filing 
Applications.''
Section 4130.1-2  Conflicting Applications (Section Number Remains the 
Same)
    The proposed rule would have amended paragraph (b) of this section 
to expand the criteria used in evaluating conflicting applications to 
include the applicant's ability to provide for proper use of rangeland 
resources. When two or more otherwise qualified applicants apply for 
the same permit or lease, such considerations are legitimate methods of 
determining which applicant should be selected.
    The new criteria would have promoted BLM's ability to award permits 
to good stewards of public lands in cases where there were competing 
applicants by taking into account the applicant's ability to manage the 
land. The criteria included the applicant's history of compliance with 
the terms and conditions of Federal and State grazing permits and 
leases.
    The few comments that the Department received on this section 
addressed primarily the expansion of the criteria to include the 
applicant's history of compliance. Others inquired about additional 
definitions.
    The Department declines to accept the commenters' suggestions to 
define additional terms because they are defined by common usage in 
rangeland management or law.
    Although TGA does not specifically deal with competing 
applications, the Department does not believe that Congress, in passing 
TGA, intended the Department to issue grazing permits to documented 
violators of statutory provisions related to grazing use. Additionally, 
improvement of the rangeland under a specific permittee or lessee's 
livestock management is a valid factor to be considered, when 
evaluating conflicting applications. Furthermore, this review should 
extend to all persons who control a permit or lease, not just the 
specific applicant.
    In accordance with the above discussion, the Department has decided 
to adopt this section as proposed.
Section 4130.2  Grazing Permits or Leases (Section Number Remains the 
Same)
    Under the proposed rule, permits and leases would have continued to 
be offered for 10-year terms except in specified circumstances. The 
proposed rule would have clarified that all grazing permits and leases 
issued, including the transfer or renewal of permits and leases, would 
have included terms and conditions addressing the national requirements 
and standards and guidelines proposed under subpart 4180, as well as 
terms and conditions establishing allowable levels, seasons and 
duration of use, and other terms and conditions that would assist in 
achieving management objectives, provide for proper range management, 
or assist in the orderly administration of the public rangelands.
    The proposal also would have clarified the requirements for 
consultation with interested parties prior to the issuance or renewal 
of grazing permits and leases. The proposal also would have clarified 
that the provision prohibiting the offer or grant of permits and leases 
when the applicant refuses to accept the terms and conditions of the 
offered permit or lease would have applied to applicants for renewals 
and new permits and leases.
    The proposed rule also would have clarified the granting of 
conservation use and temporary nonuse. Conservation use would have been 
established as one of the allowable uses a permittee or lessee may be 
granted, when in conformance with applicable [[Page 9939]] land use 
plans, activity plans and standards and guidelines. Finally, the 
proposed rule would have provided that forage made available as a 
result of temporary nonuse may be authorized for temporary use by 
another operator, although forage used for conservation purposes would 
not be available to other livestock operators.
    The Department received numerous comments on this section. Major 
themes expressed in the comments were objections to conservation use, 
concern that expanded public involvement would negatively affect 
applicants for permits and leases, and opposition to what was perceived 
as provisions to limit permit and lease tenure.
    Many commenters expressed objections to the proposal for 
conservation use, asserting that conservation use would hurt rangelands 
and should only be allowed where scientific data demonstrates that rest 
from grazing will benefit the land. Many held the perception that 
conservation use would be required by the authorized officer. Others 
thought the proposal would remove the requirement for base property, 
would jeopardize water rights, would result in inadequate maintenance 
of range improvements, would reduce tax revenues, should require 
payment of grazing fees for conservation use, would lead to reduced 
fees available for rangeland improvements, would adversely affect 
operators on isolated or scattered public lands, and would result in 
purchase of permits for conservation purposes. Others asserted that 
conservation use was a closing of the range that would require 
following certain notice and comment requirements of FLPMA, while still 
others thought conservation use should be offered for a term of greater 
than 10 years. Some commenters thought that allotments that are not 
being grazed should be retired or reallocated rather than placed in 
conservation use. Finally, some comments were concerned that 
conservation use would be severely limited by existing land use plans 
because the concept is new and has not been considered in past planning 
efforts.
    Considerable concern was expressed about the addition of public 
involvement prior to the issuance or renewal of grazing permits and 
leases. Some commenters opposed the expansion of public input 
opportunities on the grounds that such opportunities are not part of 
making decisions in other resource programs and that grazing decisions 
would be unduly delayed to the detriment of the permittee and lessee. 
Others suggested that the requirement to consult should be changed to 
``consultation, coordination, and cooperation.'' Some commenters 
believed that public input should only be made part of NEPA analysis 
and planning efforts affecting grazing. Others stated that authorized 
officers should be able to issue or renew permits to permittees who 
demonstrate good stewardship without input from the public.
    Some commenters held the perception that the proposed rule would 
significantly affect the term of permits and were concerned that 
decisions to issue permits and leases for terms of less than 10 years 
could be subjective and unfair. Others asserted that terms of less than 
10 years would be contrary to FLPMA while still others suggested that 
only five-year permits and leases should be offered to poor stewards. 
Still others suggested that permits should be made available for 
competitive bid at the end of the 10-year term.
    A number of respondents suggested provisions pertaining to 
temporary nonuse should be more flexible, that decisions to not make 
livestock use should be left to the ranchers, and that leaving forage 
placed in nonuse available to other applicants would discourage good 
stewards from resting areas (i.e., others would reap the benefits of 
the range the permittee protected).
    Some concern was expressed about the provisions allowing the 
authorized officer to deny permits and leases to applicants who refuse 
to accept terms and conditions. Some commenters believed this provision 
would result in ``arbitrary'' terms and conditions. Some commenters 
suggested a one year continuance of a permit where a permittee or 
lessee seeking renewal refuses to accept proposed terms and conditions 
in order to provide time to reach agreement.
    Some reviewers suggested a review to determine ``suitability'' of 
the range to support livestock grazing should be required prior to 
permit or lease issuance and offered criteria to be followed. Some 
commenters asserted that issuance of 10-year permits requires NEPA 
compliance and should be subject to administrative appeal, and that 
annual authorizations to be made in the absence of approved activity 
plans should be subject to administrative appeal.
    Many comments received in this section that pertained to the 
definition of ``temporary nonuse'' are addressed at Sec. 4100.0-5.
    The Department disagrees with assertions that conservation use will 
be detrimental to the health of the land. Existing data should 
generally be adequate to make conservation use decisions. Conservation 
use will only be approved when it is found to be in conformance with 
land use plans and when it is determined it will promote resource 
protection or enhancement. This determination may require additional 
data in a few cases but the Department anticipates that available data 
and input from the permittee or lessee and others will usually prove 
sufficient. In addition, allotments placed in conservation use will be 
monitored in a fashion similar to other allotments to determine whether 
such use is consistent with standards and guidelines, and established 
resource management objectives. These requirements, as well as the 10-
year limit on permits specifying conservation use, will discourage 
persons from obtaining permits for the sole purpose of placing them in 
conservation use.
    Conservation use is requested by the permittee and approved by the 
authorized officer based on the provisions in the applicable land use 
plan. The BLM will not impose conservation use on an unwilling 
permittee. Conservation use must be included as part of an application 
by a permittee or lessee and must be found to be consistent with the 
land use plan. Appropriate terms and conditions will be attached to 
permits that specify conservation use, and permittees will be subject 
to all applicable requirements under the grazing program rules. This 
includes the requirement for base property. See discussion of 
Sec. 4110.2-1.
    Whether placing all or portions of allotments in conservation use 
will affect water rights will depend on the applicable State laws. 
However, resting grazing land is a commonly accepted grazing practice. 
Permit and lease holders possessing rights to water, as well as BLM, 
will need to consider potential effects on water rights in deciding to 
apply for or approve conservation use.
    With regard to maintenance and operation of range improvements 
where the forage has been devoted to conservation use, the Department 
intends that in most, if not all, cases, permittees will be required to 
maintain improvements during the term of the conservation use. 
Requirements for maintaining range improvements will be made a 
condition of any permit specifying conservation use. Occasionally, 
where an existing improvement enhances neither the goals of 
conservation use nor the goals of grazing use or any other multiple 
use, maintenance may not be required. Depending upon the circumstances, 
specific activities to improve range [[Page 9940]] conditions might 
also be incorporated in the terms or conditions of a permit.
    Significant reductions in tax revenues or available range 
improvement funds are not expected to result from conservation use. 
While grazing fees will not be collected for conservation use, since no 
forage is being consumed, the Department considers that the benefits to 
be derived by the conservation use will offset the relatively minimal 
decrease in grazing receipts. The FEIS analyzes the economic effects of 
the various management alternatives considered in arriving at this 
final rule.
    Concerning the perceived problems associated with scattered 
intermingled public lands, conservation use is at the option of the 
permittee or lessee subject to approval of BLM. If intermingled lands 
create a problem for the permittees or lessees, they may decide not to 
apply for conservation use.
    The Department disagrees that conservation use constitutes a 
``closing of the range'' that is subject to notice and comment 
requirements of FLPMA. Presumably the commenter was referring to 
requirements involved when a major use is eliminated from very large 
tracts of public land (43 U.S.C. 1712); however, this statutory 
provision does not pertain to conservation use which does not 
constitute an exclusion of a major use. Conservation use is a grazing 
management practice and does not constitute a permanent retirement of a 
grazing allotments. Decisions to retire grazing allotments are 
considered through BLM's land use planning process.
    The 10-year limitation on conservation use is consistent with the 
statutory requirements for permit limitations. As adopted today, 
conservation use could be approved for up to 10 years. FLPMA (43 U.S.C. 
1752(a)) requires that grazing permits or leases be issued for a term 
of 10 years or, in circumstances specified at 43 U.S.C. 1752(b), less. 
This limit also recognizes that conservation oriented objectives may be 
met or revised and the forage may then be re-allocated for use by 
livestock. This also is the rationale for why the grazing privilege is 
not cancelled or ``retired'' or why the area is not closed to livestock 
grazing.
    To clarify how a permittee can change back to active use, the final 
rule is modified from the proposal to include conservation use in 
Sec. 4130.4(b), ``Approval of changes in grazing use within the terms 
and conditions of permits.''
    In regards to the comment that the ability to authorize 
conservation use will be severely limited because current land use 
plans don't consider conservation use specifically, it is not a 
requirement that conservation use be explicitly addressed in plans. 
Rather, it must be found to conform with the land use plan. The 
Department believes that conservation use will conform with land use 
plans in most cases.
    For responses to general comments concerning public involvement 
please see Secs. 1784.0-5 and 4100.0-5. Analysis of permit or lease 
issuance currently requires NEPA compliance which in turn provides for 
broad public input. In addition, issuance or denial of an application 
constitutes a decision of the authorized officer and, as such, is 
protestable and appealable under subpart 4160. Careful consideration of 
public input early in the process for issuing or renewing permits 
should minimize the time spent in resolving protests and appeals. In 
response to comments, consultation, coordination, and cooperation is 
inserted in the language adopted today.
    Concerning the comments that expressed concerns over permit tenure, 
the proposed rule and the rule being adopted today vary little from the 
existing rule. The principal change pertaining to permit tenure that 
was proposed was establishing permit and lease terms to coincide with 
the terms of any base property leases. The authority for this and other 
tenure provisions is clearly established by FLPMA (43 U.S.C. 1752(b)) 
which states permits and leases may be issued for terms less than 10 
years when determined to be ``* * * in the best interest of sound land 
management.'' Decisions to approve or deny a permit or lease 
application are appealable under subpart 4160. The Department does not 
agree with the suggestions to end preference for renewal in favor of 
competitive bidding. Given the intermingled patterns of some public 
lands, statutory provisions pertaining to renewal of permits, and 
administrative obstacles, competitive bidding would not serve as a 
viable option in many instances. Competitive bidding for permits and 
leases was analyzed in the FEIS.
    The rule as proposed and adopted today provides a great deal of 
flexibility to permit and lease holders in terms of temporary nonuse. 
Under this rule, applications for temporary nonuse will generally be 
approved. Where the limitations placed on temporary nonuse (maximum of 
three years and open to other applicants) prevent the permittee or 
lessee from meeting their needs, the option of applying for 
conservation use remains.
    The provision that applicants who refuse to accept the terms and 
conditions of the offered permit or lease will be denied will not 
result in arbitrary terms and conditions. The general requirements of 
the previous rule for determining appropriate terms and conditions have 
been retained in this rule. Also, should the applicant believe terms 
and conditions are not appropriate, the applicant may appeal the 
decision of the authorized officer under subpart 4160. If, after 
communication with the involved parties, the decision to deny or 
approve an application is appealed, the authorized officer would have 
the option to issue a temporary nonrenewable permit pending resolution 
of the appeal.
    The Department has chosen not to incorporate suggestions pertaining 
to suitability determinations prior to permit or lease issuance. FLPMA 
sets forth specific factors BLM must consider in connection with land 
use planning and use authorizations. A rigid suitability review is not 
specifically required by FLPMA. Moreover, the process associated with 
land use planning and decisions on use authorizations, including NEPA 
compliance and application of standards and guidelines, adequately 
address concepts of suitability. The fundamentals of rangeland health, 
guiding principles for State or regional standards and guidelines, and 
the fallback standards and guidelines, presented in subpart 4180 of 
this final rule, will focus on attaining and maintaining healthy 
rangelands.
    The use of suitability determinations was considered in the FEIS 
under the alternative titled Environmental Enhancement. Readers are 
encouraged to review the discussion of suitability in that document.
    This rule will not change existing NEPA implementation procedures. 
As stated above, decisions under this section are appealable under 
subpart 4160. Appealable decisions include the issuance or denial of 
permits and leases and modification of terms and conditions. As 
explained at Sec. 4130.4, annual ``authorizations'' are merely 
validations that the requested use falls within the terms and 
conditions of the permit or lease. Normally, they do not require 
further NEPA analysis or public input. However, issuance of a grazing 
permit or lease, even a one-year or nonrenewable permit or lease, does 
not all under the provisions of the new Sec. 4130.4, and would 
therefore be subject of NEPA analysis, consultation requirements, and 
the right of protest and appeal. [[Page 9941]] 
    In accordance with the above discussion, the Department has decided 
to adopt this section as proposed except for replacing ``consultation'' 
with ``consultation, cooperation and coordination'' in reference to 
obtaining public input, replacing proposed language pertaining to 
issuance of permits and leases for a period of less than 10 years with 
wording taken directly from FLPMA (43 U.S.C. 1752), and adding to the 
requirement that temporary nonuse and conservation use be in 
conformance with plans, standards, and guidelines a requirement for 
conformance with the fundamentals of rangeland health presented in 
Sec. 4180.1.
Section 4130.3  Terms and Conditions (Formerly, Section 4130.6)
    This section would have required that permits and leases 
incorporate terms and conditions that ensure conformance with the 
national requirements and established standards and guidelines. This 
requirement would have established that terms and conditions of permits 
and leases are the principal vehicle for implementing the standards and 
guidelines and thereby the precepts of ecosystem management.
    A few commenters stated that the national requirements and 
established standards and guidelines and are not linked to livestock 
grazing, are unattainable due to their lack of site-specific analysis 
and contradict Congressional intent.
    Other commenters asserted that maintenance of national standards 
and guidelines should be made a condition of the permit and that 
livestock operators should have to get approval from the authorized 
officer before making use of any resource beyond their permitted forage 
such as water, wildlife, etc. and that permits should include a 
schedule for monitoring.
    The fundamental requirements, guiding principles and fallback 
standards are all linked directly to livestock grazing. Developing 
standards and guidelines at the local level, with heavy reliance on 
public involvement through the RACs, will assure that they are 
attainable and consistent with local conditions. The fundamental 
requirements and guiding principles are based upon ecological 
principles. The Department believes this is consistent with the intent 
of Congress which has mandated the Secretary in FLPMA to protect the 
quality of scientific, scenic, historical, ecological, environmental, 
air, and atmospheric, water resources, and archaeological values and to 
assure the proper use of the public land resources to assure 
sustainability.
    The standards and guidelines will be made part of the terms and 
conditions of the permit in accordance with Sec. 4130.3. Levels of 
permitted use are subject to adjustment, depending in part on resource 
condition concerns, in accordance with Sec. 4110.3-2. Livestock 
operators are required to get approval from the authorized officer 
before making use of any resource beyond the uses of public resources 
directly associated with livestock grazing, as provided in their permit 
or lease. Monitoring schedules may become part of the terms and 
conditions of some permits and leases, especially where activity plans 
have been completed for the allotment.
    In accordance with the above discussion, the Department has decided 
to adopt the provision as proposed.
Section 4130.3-1  Mandatory Terms and Conditions (Formerly, Section 
4130.6-1)
    This section would have been amended to remove reference to 
acceptable methods for determining carrying capacity and to remove the 
cross references for those sections of the rule that detail how 
stocking levels are adjusted. This change was made to recognize the use 
of methods other than monitoring in determining carrying capacity and 
to streamline the wording of the mandatory terms and conditions by 
removing unnecessary cross references. Other provisions in the 
proposal, such as Sec. 4110.3, would have broadened the sources of 
information that could be relied upon by BLM as a basis for making 
decisions about permitted use, carrying capacity, and other factors. 
The section would have been further amended by adding a paragraph (c) 
that would have required that standards and guidelines be reflected in 
the terms and conditions of permits and leases. This provision would 
have ensured that individual permits or leases contribute to the 
maintenance or enhancement of healthy rangelands and is the principal 
mechanism for implementing standards and guidelines.
    Many commenters asserted that monitoring should be retained as a 
requirement for determining carrying capacity and that the Department 
should add a requirement that the level of use should only be part of 
the terms and conditions if accepted uncontested by the affected 
permittee or lessee. Commenters also asserted that conformance with the 
national requirements, standards, and guidelines would be impossible. 
Other commenters stated that if the agency cannot afford to protect the 
public lands used for grazing through monitoring, then grazing should 
not be allowed.
    Use of other sources of information besides monitoring are 
discussed above, principally at Sec. 4110.3 and also at Sec. 4110.3-2. 
Carrying capacity for the allotment is set by the permit or lease. 
Changes in permitted use, including the requirement that they be 
supported by monitoring, field observations, ecological site inventory 
or other data is addressed at Sec. 4110.3. The methods to be used are 
more appropriately dealt with under subpart 4110 rather than being 
included as a parenthetical statement in Sec. 4130.3-1.
    The fallback standards and guidelines are reasonable and 
achievable. Field testing during development of this proposal showed 
significant conformance between fallback standards and guidelines and 
existing land use plans. Regional standards and guidelines will be 
developed with full public participation (including grazing permittees 
and lessees) and in consultation with the RAC. This level of public 
involvement will help ensure that the regional standards and guidelines 
developed will be realistic and achievable. Issues relating to the 
standards and guidelines are discussed more fully at subpart 4180.
    Reference to ``monitoring'' was eliminated from this section not 
because the Department does not intend to monitor range conditions, but 
because other sources of information are legitimate means for BLM to 
evaluate range conditions and because this section does not establish 
the practices to be followed in estimating carrying capacity (See 
Secs. 4110.3-1 and 4110.3-2).
    In accordance with the above discussion the Department has decided 
to adopt the provision as proposed, with one change. The words ``the 
national requirements, standards, and guidelines pursuant to'' have not 
been included in the final rule. Actual achievement of national 
requirements, (which have been modified from the proposed rule and are 
now reflected in fundamentals of rangeland health), standards, and 
guidelines may not be immediately possible but rather may depend on a 
series of actions taken over a period of time.
Section 4130.3-2  Other Terms and Conditions (Formerly, Section 4130.6-
2)
    Paragraph (f) of this section would have been amended to allow 
terms and conditions to provide for temporary changes in livestock use 
for the improvement of riparian area functions and for protecting other 
rangeland resources and values consistent with [[Page 9942]] applicable 
land use plans. The amendments would have been consistent with the 
themes of protection, improvement, and restoration of the rangelands to 
increase overall productivity, and would have enhanced multiple-use 
management as required by applicable laws. Furthermore, the amendments 
would have allowed responsive action in preventing damage that could 
result from grazing during nontypical natural conditions (such as 
delaying spring turnout during extreme drought).
    Additionally, the section would have been amended by the addition 
of a new paragraph, (h), allowing terms and conditions to specify that 
BLM shall have administrative access across the permittee's or lessee's 
owned or leased private lands for purposes of administering the public 
lands. This provision would have addressed attempts to prevent BLM from 
performing functions such as range use supervision, compliance checks, 
and trespass abatement that are needed to administer the Federal 
grazing permit or lease.
    This section attracted a number of comments. Many of the comments 
expressed concern over the proposed language of paragraph (h). Comments 
ranged from opposition to paragraph (h) on the grounds that a 
requirement for administrative access was an ``unwarranted intrusion'' 
to asserting that such a condition on a permit would constitute a 
``taking.''
    Other commenters recognized a need for BLM to conduct 
administrative functions on the public land. They stated that the rule 
needs to make it clear this provision can only be used by BLM personnel 
to conduct ``BLM business on the Federal lands.'' Commenters also 
expressed concerns that paragraph (f) would allow for ``permit 
cancellation'' without notifying or consulting the permittee. Other 
commenters viewed the riparian improvement provisions of paragraph (f) 
as vague.
    The provisions of paragraph (h) regarding administrative access 
refer to access across private lands to reach public lands in order for 
agency staff to perform necessary resource management activities on the 
public lands. These include such activities as monitoring of resource 
conditions, range use supervision, and evaluating the conditions of or 
the need for range improvements. Land management agencies, like any 
landowner, need appropriate access to the lands they administer. 
Efficient access to allotments is needed and is consistent with the 
partnership between permittees or lessees and the agency to manage 
rangelands properly. In cases where BLM is unable to obtain permission 
to cross private lands to perform necessary administrative functions on 
public lands, BLM may not be able to allow grazing or other use.
    A discussion regarding ``takings'' can be found above in the 
General Comments section of this preamble.
    This provision does not pertain to public access across private 
lands. The need for public access is typically considered through the 
land use planning process. Efforts are made through agreement and 
acquisition of easements to acquire access where appropriate.
    Paragraph (f) of the proposed rule was intended only to provide for 
temporary delays, cessation, or modification of livestock grazing, not 
permanent actions. The word ``temporary'' is moved in the final rule 
adopted today to make clear that paragraph (f) does not provide for 
permanent changes in livestock use. In all cases the permittee or 
lessee will be given reasonable notice, subject to the limitations that 
result from unforeseen natural factors such as drought or flood.
    The Department disagrees with the commenters' assertions that 
provisions of paragraph (f) pertaining to riparian areas are vague. The 
importance of riparian areas in the stabilization of soils, maintenance 
of water quality, reduction of flood hazard and provision of habitat 
have been well established. Although the standards for proper 
functioning conditions for specific riparian sites are not provided in 
this rule, the basic factors of healthy riparian areas are presented in 
subpart 4180 and will be addressed in the development of State or 
regional standards and guidelines. The development of these standards 
and guidelines will involve public input and consultation with the RAC, 
which will help ensure that they are reasonable and implementable.
    In accordance with the above discussion, the Department has decided 
to adopt the provision as proposed.
Section 4130.3-3  Modification of Permits or Leases (Formerly, Section 
4130.6-3)
    The proposed rule would have amended this section to provide for 
consultation with States and the interested public concerning 
modification of permits or leases. It would also have added lack of 
conformance with the national requirements or the standards and 
guidelines as a reason to modify terms and conditions of a permit or 
lease. Finally, it would have broadened opportunities for input during 
the preparation of reports that evaluate monitoring and other data used 
as a basis for making decisions to change grazing use or terms and 
conditions. These changes were intended to enhance opportunities for 
input by permittees, lessees, States, and the interested public in 
decisions regarding the management of the public rangelands.
    The Department received a few comments on this section. Commenters 
objected to the deletion of the terms ``cooperation and 
consideration;'' to use of land use plan objectives as a test of 
whether grazing is being properly managed; and to the involvement of 
nongrazing interests in making forage allocation decisions. Some were 
concerned that the authorized officer would use land use plan 
objectives as a reason to reduce grazing use without evidence that a 
problem was caused by such use. Others supported an annual public 
review of allotments to determine whether they are in compliance with 
the land use plan.
    The rule as adopted today includes the terms ``cooperation and 
coordination.'' This decision is discussed at Sec. 4100.0-5. 
Conformance with land use plan objectives is a reasonable test of 
whether livestock grazing is being properly managed. Land use plan 
objectives form the basis for all management decisions within the area 
covered by the plan. Should actions taken on a given allotment not lead 
to achieving those objectives it is incumbent upon the authorized 
officer to take appropriate action to assure that they do. In the final 
rule adopted today, language is added to clarify that this section 
relates to the ``active use or related management practices.'' This 
specifies that the authorized officer can modify terms and conditions 
of a permit or lease when the grazing use is the cause of a failure to 
meet land use plan objectives. Additionally, decisions to increase or 
decrease the grazing use or to change the terms and conditions of a 
permit or lease must be based upon monitoring and other data.
    The final rule requires the authorized officer to provide the 
public with the opportunity for review and comment and to give input 
during the preparation of reports that evaluate monitoring. The 
Department believes that providing the maximum opportunity for public 
input assures that all factors are adequately considered by the 
authorized officer when he/she is making allocation decisions.
    The Department does not agree that the rule should require an 
annual evaluation of all allotments to determine [[Page 9943]] if they 
are in conformance with the land use plan, AMP, or other activity plan. 
Frequency of monitoring and evaluation should be dictated by local 
conditions rather than by general rule.
    In accordance with the above discussion, the Department has decided 
to adopt the provisions, with some changes. The only substantive change 
is the addition of the phrase ``active use or related management 
practices'' as clarification that the basis for modifying terms and 
conditions of permits or leases when management objectives are not 
being met is use related to grazing. The title of the final section is 
changed to ``Modification of Permits or Leases'' to further clarify the 
intent of the section.
Section 4130.4  Authorizations within the Terms and Conditions of 
Permits and Leases (Formerly, Section 4130.1-1 Changes in Grazing Use).
    In the proposed rule, this section would have provided for field 
managers to make temporary changes in authorized use, either increases 
or decreases, not to exceed 25 percent of the authorized use or 100 
AUMs, whichever is greater, following consultation with the affected 
permittees or lessees and the State having land or responsibility for 
resources management within the allotment. This would have provided 
latitude to the authorized officer for authorizing minor or incidental 
adjustments in grazing use without extensive consultation, simplifying 
day-to-day administration.
    The Department received a few comments on this section. Most 
commenters were concerned about the 25 percent or 100 AUMs limit on 
increases or decreases in grazing use. Some stated the limits were 
unreasonable, especially in respect to ephemeral ranges. They stated 
that in some areas occasional very wet years might produce great 
amounts of forage, so that use could reasonably be increased by much 
more than the 25 percent limitation. A few cited potential impacts of 
the provision such as foregone employment associated with higher use 
levels and increased fire hazard if forage is not harvested. Some 
commenters suggested changes in use should only be limited by the terms 
and conditions of the permit or lease.
    Some commenters opposed the provision that the authorized officer 
could impose such a change without the permittee's consent. A few held 
concerns that the consultation provisions would be burdensome, while 
others thought consultation should be expanded to ``consultation, 
coordination and cooperation.''
    Some commenters were confused by this section and asked what would 
happen if changes greater than 25 percent were needed and how the 
provision affected temporary nonuse and permitted use.
    Some reviewers had concerns with how ephemeral grazing would be 
affected by the provision and expressed the opinion that grazing should 
not be permitted in the hot desert biome. It was suggested that this 
provision exclude areas receiving less than 10 inches of rainfall 
annually.
    Based largely on the comments on this section, the Department has 
retitled the section and removed references to limitations of 25 
percent or 100 AUMs and the authorized officer requiring increases or 
decreases in use. The changes made in this final rule are intended to 
clarify how proposed changes in grazing use in any given year may be 
approved when the changes requested by the permittee or lessee are 
consistent with the terms and conditions of the permit or lease.
    Changes in use under this provision would constitute the authorized 
officer's ministerial validation that the specific kind and numbers of 
livestock, the dates of use, and other conditions of use requested by 
the permittee or lessee fall within the terms and conditions of the 
permit. This process ensures that use is consistent with resource 
management objectives and that operators and BLM have documented how 
use will be made for the upcoming grazing year for purposes of 
maintaining use data and supervising use. (Application for grazing use 
outside of the terms and conditions of the permit or lease would be 
considered under other provisions of this final rule. (See, for 
instance, Secs. 4110.3-2, 4110.3-3, and 4130.3-3.) Consultation is not 
required under this section because (a) the request under consideration 
will come from the permittee or lessee, and (b) in the future 
consultation will have taken place at the time the permit or lease was 
issued (see Sec. 4130.2) and at any time the terms and conditions of 
the permit or lease are modified (see Sec. 4130.3-3).
    This provision for validation of requested grazing use when such 
use falls within the terms and conditions of the permit or lease does 
not apply to the issuance of permits or leases. Issuance of permits or 
leases, including short-term permits or leases, constitute direct 
Federal actions that are subject to NEPA analysis as well as the 
provisions of Sec. 4130.2 of this final rule.
    Examples of the types of changes that would be considered under 
this section are the activation of previously approved temporary nonuse 
or conservation use, placing permitted use in temporary nonuse or 
conservation use, changes in dates and class, and the use of forage 
temporarily available on ephemeral or annual ranges. On other than 
established ephemeral range, use of forage in amounts greater than 
permitted use that has temporarily been made possible by factors such 
as above-normal precipitation would require the issuance of a separate 
nonrenewable permit under Sec. 4130.6-2 of this final rule.
    Decisions pertaining to permitting ephemeral grazing use and the 
establishment of terms and conditions of use are not governed by this 
section of the rules. These types of decisions typically require NEPA 
compliance and public involvement. The concerns of commenters about 
authorizing ephemeral grazing use are best addressed in the planning 
and NEPA analysis processes.
    In accordance with the discussion above, the rule adopted today 
will provide that the authorized officer may approve requested changes 
in grazing use when the changes fall within the terms and conditions 
established in the grazing permit or lease.
Section 4130.5  Free-Use Permits (Formerly, Section 4130.3)
    This section was originally proposed as part of Sec. 4130.7-1, 
however it is moved to the newly redesignated Sec. 4130.5 to 
consolidate provisions concerning free-use permits. This section would 
have provided for free-use under three specified circumstances.
    The Department received a few comments on this provision. 
Commenters stated that free use should be allowed only for scientific 
research projects. Commenters also stated it should not be authorized 
to control noxious weeds, since overgrazing facilitated the spread of 
noxious weeds in the first place.
    The Department foresees that this provision will be used only when 
it is a desirable means of accomplishing a particular task. It will 
also give on-the-ground managers an additional tool to meet resource 
objectives. For example, there are some circumstances where carefully 
managed grazing can be used to control noxious weeds. Often, management 
prescriptions can be developed within existing permits and leases. 
However, there are some occasions where a free-use permit could be a 
valuable alternative.
    In accordance with the above discussion, the Department has decided 
[[Page 9944]] to adopt the final rule language as proposed with the 
exception of its relocation from the proposed Secs. 4130.7-1 to 4130.5 
of the final rule.
Section 4130.6-1  Exchange-of-Use Grazing Agreements (Formerly, Section 
4130.4-1)
    This proposed section would have included requirements that 
agreements for exchange of use must be in harmony with management 
objectives, and compatible with existing livestock operations. The 
agreements would have been required to address the fair sharing of 
maintenance and operation of range improvements and would have been 
approved for the same term as any leased lands that are offered.
    The Department received comments expressing a desire that all non-
Federal lands which are unfenced and intermingled with public land be 
covered by an exchange-of-use agreement and that lands must be located 
within the permittee's area of use and not in another permittee's area 
of use in order for the carrying capacity of the non-Federal lands to 
be credited to the permittee without charge. Other commenters objected 
to unnecessary requirements or restrictions on agreements and possible 
impacts to private and state trust lands.
    The Department disagrees that all non-Federal lands should be 
covered by an exchange-of-use-agreement. It is necessary for the 
authorized officer to have the flexibility to deal with local 
situations and use exchange of use where appropriate. The Department 
agrees that the lands involved in an exchange-of-use-agreement should 
be within the allotment. This is current BLM practice and will not be 
altered by this rule.
    The Department disagrees that the only restriction should be that 
such agreements not exceed grazing capacity. Grazing capacity is a 
critical factor to achieving management objectives; however, it is not 
in the Department's interest to enter into agreements which are not in 
harmony with management objectives and compatible with existing grazing 
operations.
    Exchange of use agreements are initiated at the permittee's 
request. Lands voluntarily included in an exchange of use agreement 
would be subjected to the terms and conditions of the permit or 
license.
    The requirement that an exchange of use agreement contain 
provisions for the equitable sharing of operation and maintenance of 
range improvements will not result in the maintenance of improvements 
that are of no value. The necessity of range improvements to achieve 
allotment objectives as well as maintenance requirements are addressed 
in allotment plans and permit terms and conditions and are not affected 
by an exchange of use agreement.
    In accordance with the above discussion, the Department has decided 
to adopt the provision as proposed with the exception of a modification 
to clarify that the lands subject to the exchange-of-use agreement must 
be within the applicant's BLM grazing allotment.
Section 4130.6-3  Crossing Permits (Formerly Section 4130.4-3)
    The proposed provisions would have clarified that crossing permits 
are a form of temporary use authorization for grazing, and that the 
terms and conditions must be contained in the temporary use 
authorization.
    The Department received very few comments on this section. 
Commenters suggested that the proposed changes would slow down the 
approval process and create legal risks.
    The Department has adopted the provision as proposed. The 
provisions adopted today are consistent with current practice in the 
field. These procedures have not resulted in unusual delay or legal 
risk.
Section 4130.7  Ownership and Identification of Livestock (Formerly, 
Section 4130.5)
    This section would have been amended to make it clear that, before 
grazing livestock owned by persons other than the permittee or lessee, 
the permittee or lessee is required to have an approved use 
authorization and have submitted a copy of the documented agreement or 
contract that includes information required for BLM's administration of 
permits and leases and management of rangeland resources. This 
generally does not create a new requirement. Many field offices are 
currently requiring the information to document the legality of the 
pasturing of livestock owned by persons other than the permittees.
    The proposed rule would also have added an exemption from some of 
the requirements for ownership of livestock for sons and daughters of 
permittees or lessees in specified circumstances.
    The Department received a few comments on the section. Many 
commenters wanted grandchildren and other family members or private 
business partnerships to be covered by the exemption and for the 
restrictions to be modified or removed.
    The Department believes that excluding sons and daughters from the 
requirements of this section is a reasonable compromise which will 
address the vast majority of cases and has chosen not to extend the 
exclusion to other family members or private business partnerships.
    The Department believes it is necessary to have all four conditions 
of approval for granting the exclusion. The Department believes that if 
livestock owned by sons and daughters exceeds 50% of the total number 
authorized then consideration should be given to issuing the permit in 
the name of the person owning the majority of the livestock.
    In accordance with the above discussion, the Department has decided 
to adopt the provision as proposed with the exception of modifications 
to clarify the language that was originally proposed.
Section 4130.8-1  Payment of Fees (Formerly Section 4130.7-1)
    The fee portion of the proposed rule generated numerous diverse and 
conflicting public comments. As noted in the August 1993 advance notice 
of proposed rulemaking, there are a number of alternative base values 
and alternative fee formulas that could be used to set fees for grazing 
public lands. There have been numerous studies and much public debate 
concerning what is a reasonable, fair, and equitable fee for grazing 
Federal rangelands.
    The draft EIS for Rangeland Reform '94, published in May 1994, 
analyzed seven fee alternatives: PRIA or No Action, i.e., the current 
fee; Modified PRIA; BLM-Forest Service Proposal; Regional Fees; Federal 
Forage Fee Formula; PRIA with Surcharges; and, Competitive Bidding. 
Each was analyzed in conjunction with management alternatives.
    The preamble to the proposed rule published in the March 25, 1994 
Federal Register described the pros and cons of adopting an increased 
grazing fee. The formula set forth in the proposed rule would have 
addressed the disparity between rates charged for livestock forage on 
private and State lands versus the rate charged for Federal lands.
    The preamble acknowledged that some permittees and lessees that are 
highly dependent on Federal forage, do not have off-ranch income, and 
have heavy debt loads, might be required to make financial adjustments. 
These adjustments, in some circumstances, might have included sale of 
the ranch. However, it was expected that such sales would occur in only 
limited circumstances. It was further noted that such sales occur now 
and could be [[Page 9945]] expected to continue even if the fee 
proposal were not adopted. However, the preamble noted that the 
economic impact on western communities was expected to be localized 
and, in most areas, not significant because the portion of the local 
economy dependent upon the use of Federal forage is relatively minor.
    The rule proposed March 25, 1994, discussed the criteria identified 
by BLM and the Forest Service by which a new fee proposal should be 
measured:
    1. The fee charged for livestock grazing should approximate market 
value. Using market value helps assure that the public receives a fair 
return for use of publicly owned resources.
    2. The fee should not cause unreasonable impacts on communities 
that are not economically diverse or to livestock operations that are 
greatly dependent on public land forage.
    3. The grazing fee should recover a reasonable amount of government 
costs involved in administering grazing permits and leases and should 
provide increased funds to improve ecological conditions.
    4. The fee system should be understandable and reasonably easy to 
administer.
    Public comments on the proposal regarding payment of fees addressed 
how the fee formula should be derived, impacts of an increase, 
differences between Federal and private lands rates, non-fee costs 
associated with Federal lands, fair market value for public land 
grazing, fair return to the public for livestock grazing use on public 
lands, recovery of costs for BLM's range program, whether the fee 
represents a subsidy for public lands ranchers, and funds for range 
improvements.
    Commenters recommending no change to the existing fee formula 
anticipated that an increase in fees would have adverse effects on 
individual operations and rural western counties. Some commenters 
suggested that other factors be considered in setting fees, including 
regional economic differences and resource conditions.
    The final rule will not include the fee provision, thus giving the 
Congress the opportunity to address appropriate fees for grazing on 
public lands. In the FY94 Interior Appropriations bill, the Senate 
voted for a moratorium on the completion of the rangeland reform 
regulations. Although the House later approved grazing reform by a vote 
of 314 to 109, the Senate did not approve the measure.
    Subsequently, the Department resumed this rulemaking. Five 
Congressional hearings were held in the field and in Washington 
following release of the proposed rule. Correspondence from Members of 
Congress through the process has suggested the need for Congressional 
involvement and possible action. A few Members of Congress commented 
that some increase in grazing fees is needed while others indicated 
that the proposed fee would have a heavy negative impact on public 
lands ranching. Some Congressional commenters suggested alternative 
methods of setting fees and leasing land.
    Some commenters opposed the proposed fee formula asserting that it 
would promote poor resource use and would not reflect a fair return for 
the public. Some public comments suggested a link between the fee 
formula and overgrazing. Analysis of the relationship between livestock 
grazing use on BLM lands and the fee indicates that there is little 
correlation between the two at the current fee level and the fee levels 
considered by the proposed rule. First, the amount of livestock grazing 
allowed on Federal lands is set by BLM and is independent of the fee. 
Second, even within the allowed limits, there is no indication that the 
proposed fee would have reduced livestock grazing on Federal lands. 
From 1982 to 1983, while the fee decreased by 25 percent, livestock use 
did not increase at all, but instead decreased by three percent. While 
the fee remained the same in 1985, 1986 and 1987, livestock use 
decreased by nearly seven percent from 1985 to 1986 and increased about 
seven percent from 1986 to 1987. Moreover, from 1992 to 1993 when the 
fee decreased, livestock grazing use decreased also, instead of 
increasing. Therefore, it appears that even within the allowable limits 
of livestock grazing use, the fee level does not have a dominant effect 
on livestock use. Apparently other factors such as livestock prices, 
livestock inventories, cost of production, drought, availability of 
other forage and market conditions play a substantial role in 
determining livestock grazing use.
    Based on the above statistics, it appears that as long as the 
Federal forage is not priced above market value the forage will 
continue to be used, if not by the current permittee, then by a new 
permittee. The grazing fee analyzed in the preferred alternative was 
not above the market value for Federal forage. Therefore, it would not 
have significantly affected the amount or type of grazing use or, in 
turn, rangeland health.
    Other factors, such as proper planning and grazing management based 
on sound technical and scientific data and professional skills, 
conformance of terms and conditions with effective management practices 
such as those embodied in the fundamentals of rangeland health and the 
standards and guidelines of subpart 4180 of this final rule and timely 
and appropriate responses to conditions of resource deterioration that 
are essential to improving rangeland health. Based on the historical 
data cited above, management practices and market conditions have a 
greater impact on rangeland health than does the specific fee level.
    The Department has concluded that, due to the great amount of 
comment received against the fee (either because it was being changed 
too much or too little), significant Congressional interest, and the 
severability of the fee and management portions of the proposed rule, 
it is appropriate to retain the current fee structure at this time. 
This will provide an opportunity for Congress to consider the need to 
legislate a fee increase.
    Other proposals also are not adopted in the final rule. The 
surcharge associated with base property leases and multiple year 
billing provisions have not been adopted. As many commenters pointed 
out, authorized subleasing is a long-standing practice that provides 
benefits to both the rancher and the public. First, it helps facilitate 
the entry of new ranchers into the livestock business in Federal land 
areas. Second, unlike Forest Service lands, many BLM lands are 
intermingled with private lands, and therefore are affected by and 
affect the management of intermingled private land and improvements. 
The Department has decided that the proposed surcharge on the transfer 
of Federal permits and leases resulting from base property leases would 
have had negative effects that would have outweighed the benefits of 
the surcharge, and has not carried this form of surcharge forward into 
the final rule.
    However, the final rule adopts the proposed provision that when the 
lease or permit is transferred to the base property lessee, it must be 
issued for a period of not less than three years. Such a lease of the 
base property constitutes a substantial long-term commitment of 
resources thus reducing the potential for large short-term windfall 
profits, as identified by the General Accounting Office (RCED-86-168BR) 
and the Office of the Inspector General (92-1-1364), and helping to 
ensure good stewardship. The authorized officer has the discretion to 
approve a transfer for a shorter period when consistent with management 
and resource condition objectives. [[Page 9946]] 
    Other changes proposed in Sec. 4130.7-1 also are adopted in this 
final rule. In the proposed rule, these changes would have amended 
Sec. 4130.7-1 to make clear the definition of billing unit, to provide 
for assessing a surcharge in certain instances for the public 
landlord's share of authorized livestock pasturing agreements 
associated with Federal land grazing, to clarify that grazing use that 
occurs before a bill is paid is an unauthorized use and may be dealt 
with under the settlement and penalties sections of these rules, and 
that noncompliance with terms and conditions may result in the loss of 
after-the-grazing-season billing privileges. These provisions are 
adopted as proposed. The proposed provision to provide for free use 
where the primary objective of livestock use is to benefit resource 
conditions or management, such as scientific study or the control of 
noxious weeds, is moved to Sec. 4130.5 in the final rule.
    The Department received comments that were both supportive and 
critical of the proposed pasturing agreement surcharge. Commenters 
criticized the approach to calculating the surcharge because they 
believed it did not reflect the regional differences in forage value. 
Other commenters opposed absolutely any pasturing on BLM lands because, 
they maintained, it results in large windfall profits from sale of 
public resources. Still other commenters asserted that permittees are 
entitled to profit from pasturing other operators' cattle on their 
Federal grazing permits or leases.
    The Department believes pasturing agreements have a potential for 
short-term windfall profits and do not provide an appropriate incentive 
for good stewardship. Therefore, the provision for a surcharge on 
pasturing agreements has been adopted in this final rule. However, the 
calculation of the surcharge is changed to reflect the regional 
differences in forage value using State private grazing land lease 
rates, as calculated by NASS. The consideration of the private grazing 
land lease rate for each State, rather than an average of all States, 
is intended to reflect the value of the Federal forage involved in a 
more equitable and efficient manner. After consideration of private 
land lease rates in the western states, the Department has decided that 
35 percent of the difference between the private grazing land lease 
rate in each respective State and the Federal grazing fee represents a 
reasonable balance that will allow the permittee or lessee to cover 
costs that may arise from pasturing other livestock operators' cattle, 
will provide the government a reasonable rate of return, and will aid 
in ensuring good stewardship. Sons and daughters of permittees or 
lessees will be exempt from the surcharge, as set forth in the final 
rule.
    A number of comments were also received on free use, which was 
originally proposed in this section. Most of the comments expressed 
concern that the provision would lead to numerous free use grazing 
permits. This provision is intended to provide for the use of grazing, 
at the discretion of BLM, for limited scientific and vegetation 
manipulation objectives. For example, intense grazing by goats may 
serve as an effective method for the control of weeds such as leafy 
spurge.
    The Department has decided to adopt the provision with the changes 
discussed above.
Section 4130.8-3  Service Charge (Formerly Section 4130.7-3)
    Section 4130.7-3 would have been amended by redesignating the 
section as section 4130.7-4, and by adding to applications that are 
made solely for temporary nonuse or conservation use. The service fee 
would offset the costs of processing such applications.
    The Department received very few comments on this section. 
Accordingly, the Department has decided to adopt the final rule 
language as proposed with the exception of a minor clarifying change.
Subpart 4140--Prohibited Acts
Section 4140.1  Prohibited Acts on Public Lands
    As proposed, paragraph (a)(2) of this section would have been 
amended to clarify that approved temporary nonuse, conservation use, or 
temporarily suspended use would be excepted from the requirement to 
make substantial use, and, therefore would not have been subject to 
penalty action under Sec. 4170.1. Other proposed amendments to this 
section would have clarified paragraph (b)(1) to establish that grazing 
bills for which payment has not been received do not constitute 
authorization to graze. Paragraph (b)(9) would have been amended to 
make it clear that the permittee is responsible for controlling 
livestock so they do not stray on to ``closed to range'' areas where 
grazing is prohibited by local laws, such as formally designated 
agriculture districts or municipalities. To be consistent with the 
Forest Service this section would have restored two provisions that 
existed in this subpart prior to 1984. These provisions would have made 
subject to penalty permittee or lessee violations of the Wild and Free 
Roaming Horse and Burro Act of 1971 and violations of Federal or State 
laws or regulations concerning animal damage control, application or 
storage of pesticides, herbicides or other hazardous materials, illegal 
alteration or destruction of stream courses, pollution of water 
resources, illegal take, destruction or harassment of fish and wildlife 
resources, or illegal destruction or removal of archeological 
resources.
    Further provisions would have been added to clarify that attempted 
payment by a check that is not honored by the bank does not constitute 
payment and would result in unauthorized use. (However, Sec. 4140.1(c) 
specifically provides for civil penalties only where payment with 
insufficiently funded checks is repeated and willful.) The proposal 
also would have provided for reclamation of lands, property or 
resources when damaged by unauthorized use or actions.
    The proposed rule also would have added reference to the types of 
violations of Federal and State laws and regulations concerning pest or 
predator control and conservation or protection of natural and cultural 
resources or the environment that would be prohibited acts subject to 
penalty under subpart 4170 where public lands are involved or affected.
    The Department received many comments on this section. A number of 
the comments revealed some confusion as to the interaction between 
Sec. 4140.1, prohibited acts, and subpart 4170, the penalties section 
of the grazing rules. Section 4140.1 provides a list of prohibited 
acts. Specifically, Sec. 4140.1(a) lists prohibited acts for which 
permittees and lessees might be subject to civil penalties; 
Sec. 4140.1(b) lists prohibited acts for which all persons using the 
rangelands might be subject to civil and criminal penalties, and new 
Sec. 4140.1(c), which incorporates what was proposed as Sec. 4170.1-3, 
lists additional prohibited acts and establishes the conditions that 
must be fulfilled before the Department may impose civil penalties on 
those committing these prohibited acts. Sections 4170.1 and 4170.2 set 
forth the penalties, both civil and criminal, for committing prohibited 
acts.
    Many commenters objected to including violations of State and 
Federal statutes related to water pollution, wildlife protection, and 
other matters, as prohibited acts. Some commenters asserted that this 
provision exceeded the Secretary's authority, and violated Section 
302(c) of FLPMA (43 U.S.C. 1732(c)). In particular, these commenters 
contended that FLPMA provides only for the revocation or suspension of 
authorizations for the use, [[Page 9947]] occupancy, or development of 
public lands on the basis of violations of State or Federal acts or 
regulations applicable to air or water quality. Furthermore, these 
commenters asserted that Section 302(c) of FLPMA provides for the 
suspension, revocation, or cancellation of authorizations to use, 
occupy, or develop public lands only when violations of terms and 
conditions occur on public lands in connection with the exercise of 
rights and privileges of the use authorization. Others were concerned 
that penalties would be imposed for even de minimus violations.
    Although Section 302(c) of FLPMA contains specific references to 
Federal and State air and water quality standards, its language is 
expansive. It allows enforcement of terms and conditions, ``including, 
but not limited to, terms and conditions requiring compliance with 
regulations under Acts applicable to the public lands * * *.'' The 
Department has concluded that these provisions of FLPMA would encompass 
the activities prohibited in Sec. 4140.1 of this rule. Moreover, the 
Department has concluded that good stewardship of the public lands, as 
well as the intent and specific language of FLPMA, are served by 
expanding the prohibited acts section to include violations of State 
and Federal laws related to natural resources, and that expanding the 
list of prohibited acts provides the regulated community and the public 
with improved notice of the prohibited acts.
    The final rule as adopted provides penalties where violations are 
more than de minimus and concern, in a more than remote way, the use of 
the public lands. The Department has addressed commenters' concerns 
that the provisions should be restricted to violations of terms and 
conditions that occur on public lands and in connection with the 
exercise of rights and privileges of the use authorization by adding to 
Sec. 4140.1 the list of conditions formerly included under Sec. 4170.1-
3. Under Sec. 4140.1(c) of this final rule, violations of other State 
or Federal laws or regulations will not constitute prohibited acts 
unless public land administered by BLM is involved or affected, the 
violation is related to grazing use authorized by a permit or lease 
issued by BLM, 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. This consolidates in one section the list of the types of 
violations and the three conditions that must be met before a violation 
of State, Federal, and local laws and regulations constitutes a 
prohibited act. This reorganization of the provisions from proposed 
Secs. 4140.1 and 4170.1-3 into final Sec. 4140.1 improves the clarity 
of the final rules by eliminating cumbersome cross-references.
    A number of commenters expressed concerns about procedural 
protection in connection with the imposition of penalties. Under this 
final rule, enforcement of the penalty provisions is subject to the 
same Departmental appeal procedures as 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. These 
provisions provide adequate procedural safeguards, set conventional 
burdens of proof and provide fair enforcement of the rules. Therefore, 
the Department has not modified the rule language in response to these 
concerns.
    There was also considerable comment about prohibited acts regarding 
transit between public and private lands, trespass, straying, and gate 
closure. Commenters expressed concern about whether the provisions 
affected the ability of landowners to protect private property or range 
improvements from trespass and vandalism. Others were concerned that 
the provisions would affect Department of Agriculture or State agency 
predator control activities.
    Nothing in these rules prohibits landowners from protecting private 
property from trespass or vandalism, or prohibits the landowner from 
keeping their gates closed to protect private property. The final rule 
regarding gates is clarified by the addition of the words ``during 
periods of livestock use.'' The Department does not intend this 
provision to apply to situations where gates are left open to give 
cattle access to forage and water. Closing a gate and consequently 
denying cattle access to needed forage or water could be covered by the 
provisions in Sec. 4140.1(a)(5). Nothing in this rule is intended to 
prevent legitimate use of gates to move and control livestock. The 
provision of Sec. 4140.1 relating to public access merely reiterates 
existing requirements. The intent of the provision is to prevent 
individuals from interfering with lawful uses of the public lands.
    The provisions in subpart 4140 apply to BLM's administration of the 
grazing program on the public lands, and nothing in the subpart 
prevents the landowner from placing signs on private property to 
prevent trespass and destruction. Furthermore, nothing in this 
provision affects Department of Agriculture or State agencies' predator 
control activities. However, the Department has no authority to prevent 
human trespass on private lands. Trespass is governed under the State 
laws in each State.
    Stray livestock are a serious problem on public lands. In addition 
to being an unauthorized use of forage, stray livestock present hazards 
to vehicles and public land users, carry a potential to transfer 
disease from sick to healthy stock, disrupt other animals, and cause 
undesired breedings and unplanned mixtures of livestock gene pools.
    It is the responsibility of the permittee to control his or her 
livestock. However, in evaluating violations, the authorized officer 
can consider factors beyond the control of the permittee or lessee. For 
example, the authorized officer could consider the fact that a third 
party, without any knowledge on the part of the permittee, had 
destroyed the permittee's fence and as a result livestock had strayed 
from authorized areas. In contrast, repeated incidents of apparently 
incidental strays could signify a more serious problem of range 
management. In such cases, the authorized officer needs authority to 
penalize the permittee or lessee for the problem.
    Some commenters expressed the view that conservation use should not 
be exempted from the prohibition against failing to make substantial 
grazing use. Commenters' concerns about conservation use are discussed 
elsewhere in this preamble, especially at Sec. 4130.2. Failure to make 
substantial use is discussed at Sec. 4170.1-2.
    Some commenters asked whether the rule prohibited alteration of 
stream courses that might be needed as part of the maintenance of 
improvements. The proposed and final language indicates that customary 
maintenance of diversion points is an authorized activity. Others were 
concerned about the provision specifying that attempted payment by a 
check that is not honored does not constitute a grazing authorization. 
In response, the language at final Sec. 4140.1(b)(9) has been revised 
to specify that payment with insufficiently funded checks on a repeated 
and willful basis is a prohibited act.
    Other commenters were concerned about the provisions on leasing and 
subleasing. Nothing in this provision prohibits authorized leasing or 
subleasing. The final rule has been amended to clarify that only 
unauthorized leasing or subleasing is a prohibited act. The Department 
understands that transactions that [[Page 9948]] include the leasing or 
subleasing of base property and pasturing agreements can be a necessary 
component of a grazing operation. However, the Department also believes 
that it has a responsibility to ensure that sublessees are qualified 
and will be good stewards, that appropriate base property is available, 
and that livestock grazed pursuant to pasturing agreements must be 
under the control of the permittee or lessee. Subleasing will be 
permitted if the authorized officer determines the above criteria are 
met.
    In accordance with the above discussion, Sec. 4140.1 of the 
proposed rule is adopted as final with the exception of adding the 
conditions formerly provided at Sec. 4170.1-3 to Sec. 4140.1, addition 
of the phrase ``repeated and willful'' to paragraph (b)(9), and making 
minor edits for clarity. Comments on the provisions proposed as 
Sec. 4170.1-3 are discussed also at that section.
Subpart 4150--Unauthorized Grazing Use
Section 4150.1  Violations
    Under the proposal, this section would have been reorganized for 
clarity and would have added the requirement that the authorized 
officer shall determine whether a violation is nonwillful, willful, or 
repeated and willful.
    The Department received a few comments on this section. Commenters 
expressed concerns about the definition of violations and penalties to 
be imposed, and about the process to be followed by the authorized 
officer in making decisions about violations and penalties. A typical 
concern was the investigation of violations. Related concerns included 
how the authorized officer would determine if a violation had occurred.
    Other comments included suggestions that violators not be held 
liable unless violations were repeated and willful, that damages should 
be limited to that actually sustained, and that various words be 
defined.
    The Department has decided not to adopt any specific definition for 
terms that are legal standards and are not unique to BLM rules.
    The rule adopted today requires that BLM follow a fair, orderly 
process when investigating violations and assessing penalties. An 
appeal process is available under subpart 4160 when the violator 
believes the rules have been inappropriately interpreted. The 
Department acknowledges that in any regulatory program there is a 
potential for inconsistent decisions, and intends that this regulatory 
reform will improve the consistency of rangeland administration 
throughout the Bureau. Consistency will be enhanced further through 
additional information and training.
    It is not appropriate to limit liability to cases where violations 
are repeated and willful, because in some cases a single violation can 
be considerably damaging to the public lands. However, the final rules 
provide for nonmonetary settlement of nonwillful violations in some 
cases. Similarly, the Department does not believe it is appropriate to 
limit penalties to the cost of correcting the problem. The availability 
of penalties is a common enforcement mechanism that acts as a deterrent 
to violations and an incentive to comply.
    In accordance with the above discussion, Sec. 4150.1 is adopted as 
proposed.
Section 4150.2  Notice and Order to Remove
    In the proposal, this section would have been amended to grant the 
authorized officer authority to determine if a nonwillful violation is 
incidental in nature, to outline a process for doing so, and to clarify 
actions for expeditious resolution of these innocent or unintended 
trespasses. The ability to close areas for a period of up to 12 months 
to specified class and kinds of livestock for the sole purpose of 
abating unauthorized use was also proposed, as was a provision that 
would have allowed such decisions to be effective upon issuance or on a 
specified date, and to remain in effect pending a decision on an 
appeal. Reference to the agents of livestock owners would also have 
been added to allow the authorized officer to notify an agent of a 
nonwillful and incidental violation.
    The Department received very few comments on this section, most of 
which related to the administrative burden of pursuing incidental 
violations and land closures. The Department agrees that pursuing 
violations for incidental unauthorized use increases the workload for 
BLM and has provided for relief by making final the provision of the 
proposed rule that allows for nonmonetary settlement of nonwillful 
trespass under specific conditions.
    In accordance with the above discussion, the Department has adopted 
Sec. 4150.2 as proposed except for minor changes to eliminate 
redundancy between Sec. 4150.2 and Sec. 4150.1.
Section 4150.3  Settlement
    Under the proposed rule this section would have been amended to 
provide guidelines for nonmonetary settlements where fees could be 
waived for unintentional incidental trespasses in a fair manner. The 
authorized officer could have made a nonmonetary settlement only under 
the following conditions: the operator is not at fault, an 
insignificant amount of forage is consumed, no damage occurred, and 
nonmonetary settlement is in the best interest of the United States. 
The method for determining the settlement amounts would have been 
amended to base the value of forage on the monthly rate per AUM for 
pasturing livestock on private, nonirrigated land in each of the 17 
western States. Other proposed amendments would have reduced the 
potential for abuse of discretion by clarifying when a nonmonetary 
settlement for nonwillful violations may be made.
    The Department received very few comments on this section. Nearly 
all commenters supported the basic principle of nonmonetary settlement 
but suggested alternatives for implementation. Commenters also sought 
additional definition or suggested that nonmonetary settlement should 
be excluded from the record to prevent every violation from being 
appealed.
    The Department believes that the proposed conditions under which 
the nonmonetary settlement would be used are defined in sufficient 
detail and are appropriate. The specific circumstances of each case 
vary greatly and will have to be evaluated in view of the conditions in 
the rules by the authorized officer to make a determination of 
nonmonetary settlement.
    The Department does not agree with some commenters' suggestions 
that nonmonetary settlements should be excluded from the record. The 
purpose of the provision is to ease the administrative burden for the 
agency and relieve the financial burden for the operator. While 
nonmonetary settlement may be appropriate under the terms of this rule, 
unauthorized use should be documented in the record.
    The Department has decided to revise the provision of the proposed 
rule that would have based the settlement fee for unauthorized use on 
the average of private grazing land lease rates in the 17 western 
States as reported annually by the Department of Agriculture's National 
Agriculture Statistics Service. This provision would have provided for 
an unauthorized use settlement that would have been uniform across all 
public lands administered by BLM as well as western National Forest 
System lands. Also, the settlement fee would have been based on the 
same data set [[Page 9949]] that would have been used to calculate the 
forage value index included in the proposal to amend the grazing fee 
formula, which has not been carried forward in this final rule. The 
Department has decided to base settlement of unauthorized use on the 
average private grazing land lease rate, reported annually by the 
National Agriculture Statistics Service, for the individual State in 
which the unauthorized use occurs rather than on an average across the 
17 States. This change will provide for a more fair settlement across 
all affected States.
    In accordance with the above discussion, the proposed rule is 
adopted as final except for the noted change from the average private 
grazing land lease rate for all 17 western States to the average 
private grazing land lease rate for each individual State.
Subpart 4160--Administrative Remedies
Section 4160.1  Proposed Decisions
    The proposed rule would have amended this section to provide 
clarification that a final decision may be issued without first issuing 
a proposed decision when action under Sec. 4110.3-3(b) of this part is 
necessary to stop resource damage, or when action is taken under 
Sec. 4150.2(d) to close an area to unauthorized grazing use. It would 
have served to expedite the decision process where immediate action is 
necessary and would have clarified what information must be contained 
in a proposed decision. The provision is adopted as proposed.
    A number of comments objected to the use of the term ``interested 
public.'' Comments indicated a concern that the use of the term 
broadens public participation which may result in delays due to 
administrative appeals and thus uncertainty for permittees. Comments 
questioned whether the ``interested public'' would have an interest in 
the matter they appeal and whether the ``interested public'' would 
automatically have ``standing'' to challenge the final decision of an 
authorized officer. One commenter suggested that decisions should be 
sent to affected public land users, and any party showing a concrete 
and particular injury from the decision.
    The term ``interested public'' replaces the term ``affected 
interest'' in the existing rules. The definition of the term 
``interested public,'' adopted by today's action, appears at 
Sec. 4100.0-5. One of the goals in adopting the changes to this section 
is to clarify that the ``interested public'' will be notified of all 
proposed decisions in order to involve the public in an early stage of 
the decision making process. Under the existing rules ``affected 
interests'' were notified of proposed decisions on permits and leases. 
Today's change provides for notification to the ``interested public.'' 
The Department expects that by involving the interested public early in 
the decision making process on such issues as permit issuance, renewal 
and modification, increasing and decreasing permitted use, and 
development of activity plans and range improvement programs, there 
will be fewer protests and appeals because parties will have a better 
understanding of the final decision and the factors considered in 
reaching the decision. The determination of whether a person has 
``standing'' to appeal a final decision of the authorized officer has 
not been changed. Any person whose interest is ``adversely affected'' 
by a final decision of the authorized officer may appeal the decision. 
The OHA determines if a party is ``adversely affected'' and thus has 
standing to bring an appeal. The Department did not adopt the 
suggestion to send decisions to only affected public land users and 
parties showing a concrete and particular injury from the decision 
since this would have the affect of limiting public participation.
    Comments were received on the proposed clarifying amendment to 
allow the authorized officer to forgo issuance of a proposed decision 
prior to a final decision where the authorized officer has made a 
determination in accordance with Sec. 4110.3-3(b) or Sec. 4150.2(d). 
Some comments were supportive of the change. Others indicated that the 
change was not needed because BLM currently has the ability to place 
decisions in effect on issuance or on a date specified in the decision 
without issuing a proposed decision. Other commenters asserted that the 
provision raises procedural questions, does not provide security of 
tenure, impacts private and State lands, removes incentives to settle 
appeals, creates uncertainty for lending institutions, and lowers 
property values and thus the local tax base.
    The changes adopted today clarify that in the case of 
determinations under Sec. 4110.3-3(b) or Sec. 4150.2(d), the authorized 
officer does not have to first issue a proposed decision. The 
Department is making this change to clarify what had been implicit in 
the existing rules. This is consistent with the interpretation in the 
existing BLM Manual.
    These changes clarify that the authorized officer may act quickly 
to arrest damage to rangeland resources resulting from conditions such 
as drought, fire, flood, insect infestation, or when continued grazing 
use poses an imminent likelihood of significant resource damage. There 
continues to be a provision to consult with the affected permittees or 
lessees, the interested public, and the State having lands or 
responsible for managing resources within the area. The authorized 
officer will have developed a record prior to taking action which will 
allow permittees and lessees, the interested public, and the affected 
State the opportunity to provide pertinent information and to discuss 
the impacts of adopting a final decision without a protest period. The 
changes being made preserve the rights of appeal and the ability to 
seek a stay by those affected by BLM's decisions. Clarifying the 
existing provision and practice should not create uncertainty for 
lending institutions nor lower property values and thus the local tax 
base. Nor should it raise concerns with security of tenure or remove 
incentives for settling appeals. The Department's intent in adopting 
this provision is to clarify that the authorized officer does not have 
to issue a proposed decision prior to a final decision where the 
authorized officer has made a determination in accordance with 
Secs. 4110.3-3(b) or 4150.2(d).
    Other comments recommended a notification period for violations, 
sought an expansion of the protest time period, and suggested a 
definition of repeated willful violations. The Department is not 
adopting these suggestions because existing early communication 
provides sufficient notification and time for protest. Regarding the 
willful violation suggestion, the Department has concluded that it is 
more effective to retain discretion to consider each violation of the 
grazing rules individually to determine the appropriate action.
Section 4160.3  Final Decisions
    Under the proposed rule, this section would have been amended to 
clarify the process for filing an appeal and a petition for a stay of a 
final decision. Decisions would have been implemented at the end of a 
30-day appeal period except where a petition for stay has been filed 
with OHA, in which case OHA has, under Sec. 4.21 of this title, a 
period of 45 days from the end of the appeal period in which to decide 
on the petition for stay. A stay, if granted, would have suspended the 
effect of the decision pending final disposition of the appeal. Under 
the present grazing administration appeals process, decisions other 
than those pertaining to situations where [[Page 9950]] immediate 
action was required are automatically stayed upon the timely filing of 
an appeal.
    The amendment also would have clarified how the Departmental rule 
at Sec. 4.21 would have been applied and the amount of grazing use that 
would be allowable when a decision has been stayed. Where an appellant 
had no authorized grazing use the preceding year, the authorized 
grazing use would have been required to be consistent with the decision 
pending a final determination on appeal. Appellants affected by this 
provision would have included persons that are applicants for permit or 
lease transfers. Where a decision proposed to change the amount of 
authorized grazing use, the permitted grazing use would not have 
exceeded the appellant's previously determined permitted use during the 
time an appeal is pending. Reference to ephemeral use would have been 
added to the amendments which would have pertained to levels of use 
pending determination on appeal. This amendment would also have 
provided for making decisions effective upon issuance or on a date 
specified in the decision when necessary to protect the rangeland 
resources or to facilitate abatement of unauthorized use by closing an 
area to grazing use under Secs. 4110.3-3 and 4150.2 of this part. These 
provisions are being adopted as proposed, with minor changes to add 
references to annual rangeland and OHA and to clarify that the proposed 
term ``previously permitted use'' means ``authorized use in the last 
year during which any use was authorized.''
    Many comments addressed the proposed change to conform the grazing 
appeals process with the general appeals provisions of the Department. 
Some comments supported the changes, while others reflected the same 
concern expressed in response to Sec. 4160.1, above. Responses to those 
comments are not repeated here.
    Some commenters questioned if the change would provide sufficient 
procedural protections for the permittee or lessee, and add to the 
number of stays sought from OHA. Other commenters questioned the 
authorized officer's discretion to make a decision effectively 
immediately; whether stay provisions would apply; whether the stay 
process was in conflict with the factual hearing process; and whether 
decisions should be placed in immediate effect only if ``required for 
the orderly administration of the range or for the protection of other 
resource values.''
    It is the Department's intent in making the grazing appeals process 
consistent with the Department's general appeals process to put 
decisions in place in a timely manner unless OHA grants a stay. The 
amendments adopted by today's action preserve the ability to file an 
administrative appeal and a petition to stay a final decision. The stay 
provision allows OHA to determine if it is appropriate to stay all or a 
portion of a final decision.
    The rule adopted today provides for two separate mechanisms for the 
issuance and appeal of decisions: (1) Making decisions effective at the 
end of a 30-day appeal period and, if a petition for stay is filed, 
upon any denial of the petition but not later than 75 days from the 
date of the decision, or (2) making decisions effective upon issuance 
or on a date specified in the decision to stop or prevent imminent 
damage to resources, in accordance with the standards set forth in 
Secs. 4110.3-3(b) and 4150.2(d). The first mechanism is expected to 
serve as the usual way in which decisions will be made. Making 
decisions effective during the 30 day appeal period will be reserved 
for situations where immediate action is needed to protect rangeland 
resources or to abate unauthorized use, in accordance with the 
standards set forth herein.
    The rules governing the consideration of petitions to stay a 
decision pending appeal are provided at 43 CFR 4.21(b)(i) through (iv), 
and are not changed by this rulemaking. The standards are (i) the 
relative harm to the parties if the stay is granted or denied; (ii) the 
likelihood of the appellant's success on the merits; (iii) the 
likelihood of immediate and irreparable harm if the stay is not 
granted; (iv) whether the public interest favors granting the stay. As 
it does currently, BLM will make available to involved persons the 
required components of an appeal and petition to stay a decision at the 
time a final decision is issued. A party will not have to choose 
between a hearing or seeking a stay. A hearing before an administrative 
law judge will review the facts associated with an appeal, while OHA 
will consider stay petitions consistent with the standards at 43 CFR 
4.21(b)(1).
    In the case of decisions under Secs. 4110.3-3(b) and 4150.2(d), the 
Department has concluded that the rule and BLM Manual provide 
sufficient guidance to the authorized officer. For this reason, the 
Department has not adopted the suggestion to place decisions in effect 
immediately only if ``required for the orderly administration of the 
range or the protection of other resource values.'' As discussed above, 
the Department has concluded that this authority is needed to stop or 
prevent imminent damage to rangeland resources or to abate unauthorized 
use. The amendments adopted today may result in an increased number of 
stay petitions, but this is balanced by the benefits of making the 
grazing appeals process consistent with the general Departmental 
process.
Section 4160.4  Appeals
    Under the proposed rule, this section would have provided 
instructions regarding the filing of appeals and petitions to stay 
decisions. When a final decision is issued, all parties whose interests 
have been adversely affected would have been able to 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, the OHA is allowed 45 days from the end of 
the appeal period to review the petition and issue a determination. 
Under the proposal, a decision would not have been in effect during the 
consideration of a petition for stay unless it were made effective for 
reasons under Sec. 4110.3-3(b) or 4150.2(d). The provision would have 
included a requirement for prompt transmittal by the authorized officer 
of appeals and petitions for stay to the OHA. These provisions are 
being adopted as proposed.
    Comments filed on this section suggested alternative time limits 
and questioned if the amendments would encourage appeals by the 
interested public. Commenters also inquired whether there should be a 
presumption of grazing use when an applicant had no grazing use the 
preceding year.
    The Department has not adopted the suggestion that the time for 
appeal or OHA review of petitions for stay should be expanded or 
limited. Past experience with the timing periods for appeals and stays 
has indicated that these timing requirements are reasonable. A 
permittee or lessee will almost always be aware of impending 
implementation of a decision before the final decision is issued. In 
addition, except for some cases that require that decisions be placed 
in immediate effect, the permittee or lessee is provided with a 
proposed decision, which may be protested, at least 15 days before a 
final decision is issued. It is the Department's intent in involving 
the interested public at early stages to reduce the number of protests 
and appeals because all of the parties will have an understanding of 
the factors considered in issuing a decision.
    The Department has not adopted the view that applicants without 
grazing use [[Page 9951]] the preceding year should not be allowed to 
graze livestock at the levels allowed by a decision that is under 
appeal. This provision is consistent with the basic concept of subpart 
4160 and 43 CFR 4.21 that the decision of the authorized officer will 
be put into effect unless a stay is granted. The Department intends 
that this concept apply consistently throughout the rules pertaining to 
livestock grazing.
Subpart 4170--Penalties
Section 4170.1-1  Penalty for Violations
    The proposed rule would have been 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 17 western States as supplied 
annually by the National Agricultural Statistics Service, plus all 
reasonable expenses incurred by the United States in detecting, 
investigating, and resolving the violation. This penalty would have 
been more consistent with the penalties provided for unauthorized use 
and simpler to administer than the penalty provided in the existing 
rules. This would have facilitated consistent application of the 
provisions by BLM. The Department has adopted the provision as 
proposed, with minor clarifying changes. The Department received few 
comments on this section. Some suggested that penalties should be based 
on public land AUM values, not private land values. Others stated that 
the rate suggested in the proposal was punitive. The concept of 
assessing penalties upon ``value of forage'' removed is not new. Under 
PRIA and the existing Federal grazing fee formula (from 1985 to 
present), BLM has assessed penalties for unauthorized use on that 
basis.
    Others stated that using twice the average private rate of all 17 
states would be a bargain in some cases, or that BLM should use the 
private rate for each area. The Department agrees that the private rate 
for each State should be used to calculate the fee. The final language 
of the rule is revised to clarify this point.
    Some commenters stated that violations should not be penalized 
unless they were willful. One common comment suggested that penalties 
should apply to other public land users, not just grazing permittees. 
Others suggested that the authorized officer should have the authority 
to cancel a lease or permit, but not be required to do so.
    Regarding commenters' concerns about willful violations, the 
penalties discussed in this section apply specifically to unauthorized 
leasing and subleasing. Leasing or subleasing agreements are oral or 
written contractual arrangements between permittees or lessees and 
third parties, even though the grazing privileges obtained by Federal 
permittees or lessees is not transferrable or assignable without 
approval. Such arrangements are willful actions. The authorized officer 
must produce competent evidence to support a finding that the permittee 
has in fact violated Sec. 4140.1(a)(6). This section does not alter the 
procedural rights of permittees under this part. It merely establishes 
the penalty for unauthorized grazing of livestock owned by persons 
other than the permittee or lessee or their sons and daughters as 
provided in this part. It does not apply to authorized base property 
leases or subleases or authorized pasturing agreements. Other penalties 
set forth elsewhere in these rules do pertain to public land users who 
enter public lands without authorization and remove publicly-owned 
assets or damage public lands.
    Some commenters suggested that payment of expenses should be 
limited to specific legal costs, and that payment of salaries of 
Federal personnel should not be included. Others stated that none of 
the statutes listed by BLM provide for revocation of permits as a 
permissible penalty. The Secretary has adequate legal authority to 
provide for penalties for such violations. The penalties adopted in 
this section are fair and consistent with other similar programs, and 
contribute to BLM's effective enforcement of the grazing program. 
Pricing Federal forage at market rates can be a very effective 
deterrent to the use of unauthorized grazing of livestock owned by 
persons other than the permittee or lessee except for sons and 
daughters of permittees and lessees.
    A typical comment discussed the fact that the proposal imposes the 
same penalty for unauthorized subleasing as for willful trespass, and 
suggested that this was excessive since the livestock involved with the 
subleasing were probably included in an existing authorized permit and 
therefore a permittee subject to a penalty for subleasing would have 
paid the grazing fee for authorized use plus the penalty. The 
Department believes that individuals who have violated the subleasing 
provisions should be penalized to the same extent as those who have 
trespassed. In some cases, trespass violations determined to be 
repeated and willful will result in a penalty of three times the 
private grazing land lease rate, plus administrative expenses. 
Experience in resolving cases of livestock trespass has shown a need 
for a gradient of penalties that can be specific for certain 
nonwillful, willful, and repeated willful offenses. In the Department's 
determination, unauthorized pasturing or other unauthorized subleasing 
will constitute a willful violation of the rules pertaining to grazing 
and will be discouraged by the penalty of twice the private rate plus 
administrative expenses. Should such violations be repeated, other 
enforcement mechanisms are available.
    Others stated that the proposal does not take into account use upon 
intermingled private land maintenance of improvements, or suggested 
that some sort of penalty should be available to the authorized officer 
to penalize a permittee, short of cancelling a permit. Differing land 
ownership patterns could make these provisions more difficult to 
enforce. However, the provisions adopted do provide for authorizing 
grazing of public lands by livestock owned by persons other than the 
permittee or lessee. Penalties for violations of the subleasing or 
pasturing provisions would be limited to the public land forage AUMs 
consumed. The authorized officer does have discretion to use lesser 
sanctions than permit cancellation when warranted.
    Others asserted that the penalties were not serious enough to be 
effective, and suggested that there should be a debarment provision. 
The penalty established in the final rule is intended to serve as a 
strong deterrent to unauthorized pasturing of livestock owned by other 
than permittees, lessees, or their sons or daughters. Setting the 
penalty at two times the private grazing land lease rate plus 
administrative expenses will ensure that there is no financial impetus 
for committing such a violation, i.e. an effective penalty must result 
in a cost greater than the reward. The provisions adopted today ensure 
this by using the private land rate, which in itself should generally 
exceed the cost of public land forage, and then doubling that figure. 
Administrative costs to be added to the penalty merely serve as a 
further disincentive to violate the provision and highlight the 
expenses to the public that result from the detection and resolution of 
violations of the provisions.
    In accordance with the above discussion, the Department has decided 
to adopt the provision as proposed, with a few changes. The phrase 
``for the 17 western States'' is revised to ``in each State'' and is 
moved to modify the phrase ``required to pay'' to provide a penalty 
that is tied to the private land [[Page 9952]] lease rate in each 
individual State. This responds to commenters' suggestions and makes 
the penalty more proportionate to the benefit received from the 
unauthorized use.
Section 4170.1-2  Failure To Use
    This section would have been amended to clarify the consultation 
requirements imposed on BLM when an authorized officer is considering 
taking action to cancel, in whole or in part, a permit or lease in 
response to failure to use. This section also would have clarified that 
failure to make substantial grazing use as authorized means failure to 
make active grazing use as approved on a grazing use authorization. 
Failure to make authorized use may result in monitoring studies 
providing false information which can cause decisions to over-obligate 
the forage resource of the rangeland.
    Permittees and lessees would have been required to apply and 
receive approval for nonuse or conservation use. Failure to apply for 
conservation use or nonuse prevents BLM from having an opportunity to 
determine if conservation use or nonuse is in conformance with the 
rules at 43 CFR 4130.2(g) and applicable planning documents.
    The proposal would also have included failure to maintain or use 
water base property in the grazing operation as a type of failure to 
use. Providing for the use of such waters is critical to the effective 
administration of grazing within an allotment. Water property is 
crucial to the proper use and operation of livestock grazing in water 
base areas. If base property waters are not kept in serviceable 
condition, livestock are forced to overuse the service areas of the 
remaining waters.
    BLM received very few comments on this section. The Department has 
decided to adopt the substance of the provision as proposed, with 
editorial changes for clarity. The most common issue raised was what 
readers viewed as an exemption from the ``substantial use'' provisions 
for conservation use. Some commenters who specifically supported 
cancellation for non-use objected to the exemption for conservation 
use. Others stated this was a double standard, and that it made no 
difference to the resource if someone with grazing use simply did not 
use the permit or if someone had conservation use. Still others stated 
that permittees with conservation use should be subject to the 
cancellation provisions for failure to maintain or use water base 
property.
    The Department disagrees that conservation use is an exemption from 
the substantial use standard. Conservation use is an active use, and 
therefore provisions regarding failure to use do not apply. Issues 
regarding conservation use are discussed at Sec. 4130.2.
    Some comments asserted there should be no penalty for using a 
permit less than the permitted use, and that fees collected should be 
based on actual AUMs used. Others asserted that the proposed changes 
eliminate any incentive on the part of BLM to reach an agreement with 
the permittee, and suggested limiting cancellation to situations where 
the permittee or lessee has failed to maintain use without reason, has 
unreasonably failed to maintain or use base property or to install or 
maintain range improvements.
    There is no penalty for using less than permitted use provided that 
the authorized officer has approved either temporary nonuse or 
conservation use. The Department does not believe that the provisions 
will be a disincentive to reach an agreement. The provision does not 
displace the cooperative processes set out in FLPMA, as amended by 
PRIA. Parties to be consulted are limited to permittees and lessees 
because any action taken in response to failure to make use will be a 
ministerial action addressing a requirement of the rule and permit or 
lease.
    Other commenters asked what ``failure to maintain or use water-
based property in the grazing operations for two consecutive grazing 
fee years'' meant. ``Failure to maintain or use water-based property. . 
. for two consecutive grazing fee years'' means that the permittee has 
not had cattle on the range for two consecutive years, has not allowed 
livestock to use the base water, has neglected to conduct necessary 
repair and maintenance activities of the base water for two consecutive 
years, or a combination of these three. In response to the commenters' 
concerns, the final rule as adopted is revised to clarify this point.
    One commenter stated that the provision assumes the permittee has 
the funds to purchase livestock or maintain base property. The 
commenter was concerned that if the permittee could not get funding, 
BLM might place a lien on the permittee's base property, thus reducing 
its collateral value. The Department does assume that the permittee has 
the funds necessary to maintain a grazing operation, including the 
purchase or lease of livestock and the maintenance of base water 
facilities. The BLM will not place liens on base property. If a 
permittee cannot afford to make use of, or maintain, base water in any 
one year, there will be no penalty under thus provision. However, if 
the situation extends into the second year, then BLM will consider 
cancelling whatever amount of permitted use the permittee or lessee has 
failed to use, as provided in this section of the final rule.
    Regarding specific requests for definitions, the Department 
believes the use of the term ``substantial use'' is sufficient without 
definition for purposes of national rules. The meaning of the word 
``substantial'' in a legal context has been well-established in the 
courts.
    In accordance with the above discussion, the Department has decided 
to adopt the substance of the provision as proposed, with editorial 
changes for clarity. The language in the final section is rewritten to 
clarify the meaning of the ``2 consecutive grazing fee years'' 
provision.
Section 4170.1-3 Federal or State Animal Control and Environmental 
Protection or Resource Conservation Regulations or Laws
    The proposed rule would have amended this section to make subject 
to penalty under Sec. 4170.1-1 violations of Federal or State 
regulations or laws that are listed as prohibited acts under 
Sec. 4140.1 and that pertain to predator animal and pest control, wild 
free-roaming horses and burros, natural and cultural resources, 
resource conservation, or the environment. The heading of this section 
would have been amended to reflect the change in scope. These changes 
were proposed to conform with similar amendments in Sec. 4140. The 
types of violations that may result in the withholding, suspension or 
cancellation of a permit or lease under Sec. 4170.1-1(a) would have 
been expanded to include violations of regulations and laws that 
pertain to the protection of the environment and conservation of 
natural and cultural resources where public lands are involved or 
affected, the violation is related to grazing use authorized by the 
permit or lease, and the permittee or lessee has been found to be in 
violation by the relevant court or other authority and no appeals are 
outstanding. Principal users of the rangelands should be expected to 
comply with such laws and regulations. The proposed amendments would 
have adopted language of the grazing administration regulations that 
existed before 1984. Today's action adopts the provision with minor 
clarifying changes, and also moves the entire provision to 
Sec. 4140.1(c) for clarity.
    Commenters on this section were strongly divided on its provisions. 
Some asserted, as they had on Sec. 4140.1 of the proposal, that 
inclusion of other statutes [[Page 9953]] in the penalty provisions of 
the grazing program was outside the Secretary's legal authority, which 
they asserted applies only to public lands governed by a grazing 
permit. Others asserted that the provisions placed too much emphasis on 
other values, that under this program only grazing values should be 
considered.
    Section 2 of TGA directs the Department to preserve public 
rangeland and its resources from destruction or unnecessary injury and 
to provide for the orderly use, improvement, and development of the 
range to ensure that the public grazing lands are administered in a 
reasonable and orderly fashion. The Department believes that the 
language of this section represents a reasonable and practical balance 
between those responsibilities and limitations placed on it by resource 
and other practical considerations.
    The Secretary has full authority to establish terms and conditions 
for grazing permits to ensure compliance with the laws affecting public 
lands. Consideration of natural and cultural resource values is fully 
consistent with the Department's responsibility for multiple resource 
management under its statutory authorities. The Department cannot 
condone violations of other statutes and expects that principal users 
of public lands, such as grazing permittees, will comply with these 
statutes in the conduct of their activities. These related statutes do 
have separate enforcement provisions that would be unaffected by this 
rule. However, as discussed at Sec. 4140.1, there are limitations 
placed on the Secretary's authority to impose penalties for violations 
under other laws. These limitations are that public land administered 
by the Bureau of Land Management must be involved or affected, the 
violation must be related to grazing use authorized by a permit or 
lease, and the permittee or lessee must be 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, with no further appeals outstanding.
    Some commenters asked whether lesser violations of State laws would 
be cause for loss of a permit, or suggested that only repeated, willful 
violations should be penalized. Others asserted that paragraph (c) 
should be amended to limit the provision to penalizing violations 
resulting from court decisions.
    The Department does not intend that de minimis violations of State 
or even Federal laws or regulations will result in penalties affecting 
the grazing permit or lease under this provision. However, the rule as 
adopted will not affect how violations of State or Federal law or 
regulations are dealt with initially by the various enforcement or 
regulatory agencies.
    Others stated that the provisions were too narrow, and should apply 
to additional statutes addressing natural resource protection. One 
specific suggestion was the American Indian Religious Freedom Act. Some 
of these commenters suggested that penalties for violation be 
nondiscretionary. Other comments suggested omitting paragraph (c) 
altogether on the basis that there is no legal argument to support such 
a limitation on the Department's responsibility under FLPMA and TGA to 
promulgate and enforce its own regulations.
    As stated in the preamble to the proposed rule, a list of relevant 
laws will be made available to grazing permittees and lessees. No State 
or Federal statutes were added to the list presented in the preamble to 
the proposed rule.
    In accordance with the above discussion, the Department has decided 
to retain the substance of Sec. 4170.1-3, as proposed. However, in 
response to comments on Secs. 4140.1 and 4170.3, the Department has 
moved the entire section establishing conditions limiting when 
violations of certain laws and regulations would constitute prohibited 
acts for the purposes of grazing administration to Sec. 4140.1(c). This 
change from the proposed rule is intended to clarify the provision by 
removing cumbersome cross-references and by consolidating discussions 
of prohibited acts. Further discussion of this provision can be found 
at that section.
Section 4170.2-1  Penal Provisions Under the Taylor Grazing Act
    Under the proposal, this section would have clarified a confusing 
existing statement by rewriting the provision to state 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, under the penal provisions 
of TGA.
    The Department received no comments on this section, and it is 
finalized as proposed.
Section 4170.2-2  Penal Provisions Under the Federal Land Policy and 
Management Act
    The proposed rule would have amended this section to adopt the 
alternative fines provisions of Title 18 U.S.C. section 3571, which was 
enacted after enactment of FLPMA. This action would have strengthened 
the protection of natural or cultural resources under the grazing 
program. Other language changes consistent with similar changes to 
Sec. 4170.2-1 regarding willful commission of acts prohibited under 
Sec. 4140.1(b) would also have been made.
    The Department received very few comments on this section. The 
major theme of the comments was that the establishment of civil and 
criminal sanctions are outside the authority of the Secretary, but 
rather are within the exclusive jurisdiction of the legislature.
    The Department disagrees that the provisions of this section are 
outside the authority of the Secretary. The Secretary has full 
authority to enforce provisions of FLPMA, TGA and other statutes, and 
has authority to promulgate rules to implement FLPMA and other statutes 
pertaining to public lands (43 U.S.C. 1740). Section 4170.2-2 
establishes the penalty provision for criminal acts.
Subpart 4180  Fundamentals of Rangeland Health and Standards and 
Guidelines for Grazing Administration (Titled ``National Requirements 
and Standards and Guidelines for Grazing Administration'' In Proposed 
Rule)
    Under the proposed rule, this subpart would have been added to 
establish national requirements for the administration of grazing on 
public lands. It would also have included a provision for the 
development of State or regional standards and guidelines for grazing 
administration. These requirements, standards, and guidelines were 
proposed to establish clear direction for managing rangelands in a 
manner that would achieve or maintain ecological health, including the 
protection of habitats of threatened or endangered species and 
candidate species, and the protection of water quality.
    The heading of the subpart is modified from the proposed rule, as 
noted above.
Section 4180.1 Fundamentals of Rangeland Health (Titled ``National 
Requirements for Grazing Administration'' In Proposed Rule)
    Under the proposed rule, this new section would have established 
national requirements for grazing administration on public rangelands. 
Permits, leases, other grazing authorizations and grazing related plans 
and activities on public lands would have incorporated, as applicable, 
grazing practices that help achieve healthy, properly functioning 
ecosystems and riparian systems. All [[Page 9954]] grazing-related 
actions on public lands would have been required to conform with the 
national requirements. Where the national requirements were not being 
met, the authorized officer would have been required to take corrective 
action prior to the start of the next grazing season. This would have 
included actions such as reducing livestock stocking rates, adjusting 
the season or duration of livestock use, or modifying or relocating 
range improvements. Nothing in the national requirements relating to 
riparian systems was to be construed to create a water right based on 
Federal law. The national requirements presented in the proposed rule 
have been retitled ``fundamentals of rangeland health'' to better 
reflect the Department's view that they represent the basic components 
of healthy rangelands. These components will be referred to as the 
``fundamentals of rangeland health'' in the discussion below.
    The Department received many comments on this section. Comments 
suggested that establishing fundamentals that were unique to grazing 
administration discriminated against public land livestock operators 
and questioned the statutory authority of the Secretary to promulgate 
such provisions. Other comments expressed the view that the provisions 
were too lax; still others asserted that the section discounted the 
role that herbivores have played in the history of the public 
rangelands and would create problems and complexities in BLM grazing 
program due to the variation in standards and guidelines.
    It is the Department's intent to establish through the fundamentals 
of rangeland health and the applicable standards and guidelines 
appropriate grazing practices to help ensure productive rangelands. 
These fundamentals will guide BLM in the development of plans for 
public lands and in the authorization of grazing-related activities, 
consistent with the provisions of FLPMA and TGA, that lead toward or 
maintain healthy, sustainable rangelands. It is not unusual for BLM 
programs to have unique requirements that pertain to a particular group 
of activities on the public lands, for example the Onshore Orders 
regulating portions of the oil and gas program.
    The fundamentals are statements of the conditions that are 
representative of healthy rangelands across the West, and, as such, are 
relatively broad as pointed out in some comments. The fundamentals 
establish the Department's policy of managing for healthy rangelands. 
State or regional standards and guidelines will be developed, under the 
umbrella of the fundamentals, 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. State or regional standards and guidelines will provide 
the 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.
    The focus on the fundamental requirements of healthy rangelands 
does not discount the role played by herbivores. Applying the 
principles of ecosystem management to grazing administration requires 
consideration of herbivores, both wild and domestic. The historical 
role of herbivores is discussed in some detail in the FEIS on this 
rule.
    The intent in adopting this section is to facilitate compliance 
with relevant requirements of Acts such as the ESA and the Clean Water 
Act and to ensure functional rangelands in order to improve ecological 
conditions while providing for sustainable development. The Department 
does not agree with some commenters who asserted that the fundamentals 
would exceed the requirements of the relevant statutes. The 
fundamentals, along with State or regional standards and guidelines, 
will be used to establish management practices that are appropriate for 
the particular region that lead toward or maintain healthy, sustainable 
rangelands and provide security of tenure for permittees and lessees.
    Regarding comments that the section creates complexities and 
problems for BLM's grazing program due to State or regional variations, 
the Department has concluded that such variation is necessary to 
address the specific conditions present within individual areas. The 
fundamentals, however, provide the basic components of healthy 
rangelands that will apply to all States and regions (exclusive of 
Alaska). These overarching principles will be supplemented by standards 
and guidelines that will be tailored to more local conditions.
    Finally, some commenters also asserted that the fundamentals of 
rangeland health and the standards and guidelines would result in a 
``taking'' if grazing use was modified as a result of this section. 
Issues associated with ``takings'' are discussed in the General 
Comments section.
    In accordance with the above discussion, the Department has decided 
to adopt the substance of the provision as proposed with reordering and 
modifications for clarity, adding wording that requires significant 
progress toward meeting the fundamentals, and rewording to incorporate 
more fully a watershed management approach.
Section 4180.2  Standards and Guidelines for Grazing Administration
    Under the proposed rule, this new section would have established 
the requirements for the development of standards and guidelines for 
grazing administration on public lands, and guiding principles for 
their development. All grazing related actions within the affected area 
would have been required to conform with the appropriate standards and 
guidelines. The geographical area to be covered by the standards and 
guidelines to be developed pursuant to this section were to be 
determined by the BLM State Director. Standards and guidelines would 
have been required to be developed for an entire State, or for an 
ecoregion including portions of more than one State, except where the 
geophysical or vegetal character of an area is unique and the health of 
the rangelands could not be ensured by using standards and guidelines 
developed for a larger geographical area. The preparation of standards 
and guidelines would have involved consultation with multiple resource 
advisory councils, coordination with Indian tribes, and Federal 
agencies responsible for the management of lands within the affected 
area. Public participation would have included the involvement of the 
interested public.
    The proposed rule would have established guiding principles to be 
addressed in the development of standards and guidelines. The guiding 
principles for standards to be developed were to have pertained to the 
minimum soil, water and biological conditions required for rangeland 
ecosystem health. All standards for grazing administration would have 
been required to address factors relating to soil stability and 
watershed function, the distribution of nutrients and energy, and the 
recovery mechanisms of plant communities and riparian functioning 
conditions. The guiding principles for the development of guidelines 
for grazing administration were to have pertained to the types of 
management actions necessary to ensure that the standards could be met. 
Included in [[Page 9955]] these guiding principles were the 
requirements that State or regional guidelines address grazing 
practices that can be implemented to benefit threatened or endangered 
species and candidate species, and to maintain, restore or enhance 
water quality; critical periods of plant growth or regrowth and the 
need for rest from livestock grazing; situations in which continuous 
season-long grazing, or use of ephemeral rangelands, could be 
authorized; the allowable types and location of certain range 
improvements and management practices; and utilization or residual 
vegetation limits.
    The proposed rule would have provided that where State or regional 
standards and guidelines were not developed within 18 months after the 
effective date of the proposed rule, fallback standards and guidelines 
included in the text of the rule would be implemented. The fallback 
standards addressed the same factors relating to soil stability and 
watershed function, the distribution of nutrients and energy, the 
recovery mechanisms of plant communities, and riparian functioning 
condition as provided for under the guiding principles. The fallback 
guidelines addressed the grazing management practices that would be 
acceptable across a broad variety of rangelands. Both the proposed 
fallback standards and fallback guidelines were general in order to be 
applicable to most western rangelands.
    As with the previous section, some commenters questioned whether 
the provisions for standards and guidelines were discriminatory and 
whether they exceeded the requirements of numerous statutes. These 
comments were addressed above under the discussion of Sec. 4180.1. Some 
commenters expressed views that the standards and guidelines should be 
developed in coordination, cooperation and consultation with 
permittees, that local grazing advisory boards should be retained and 
involved, and that local and county government should be consulted. 
Some commenters questioned the expertise of the RACs to develop 
standards and guidelines and questioned why the interested public and 
the public in general is included in the development process.
    Some commenters asserted that the 18-month development period is 
too short and that the fallback provisions should be eliminated. Others 
questioned whether there should be any waiting period before the 
fallback standards and guidelines come into effect.
    Some commenters asserted that the standards and guidelines should 
be developed through the land-use planning process. Comments were 
received that questioned the efficacy of the standards and guidelines 
while some felt the standards and guidelines were too strict and would 
harm livestock operations. Finally, a few commenters questioned the 
intent and wording of individual guiding principles and fallback 
standards and guidelines.
    The Department recognizes the need for an effective partnership 
with livestock operators and will continue to work closely with them. 
The Department has also concluded that public land management in 
general will be improved by providing for a more inclusive partnership 
which extends to RACs, the interested public, and State and local 
government. The RACs, the interested public and the public in general 
will be involved in the development of the standards and guidelines. 
RAC members will have a variety of qualifications that will contribute 
to the standards and guidelines development process. Grazing permittees 
and lessees will be represented on the RACs and will have a variety of 
opportunities to provide input to BLM through the RACs and public 
forums during the development of State or regional standards and 
guidelines. The RACs and their subgroups will be able to provide 
technical advice in a manner similar to the former grazing advisory 
boards, while at the same time representing a broader array of 
interests. For further discussion of member qualifications and 
experience, see section-by-section analysis of subpart 1780.
    The Department has concluded that the 18-month time frame for 
development of the State or regional standards and guidelines will 
provide adequate time to develop appropriate standards and guidelines 
for several reasons. First, the standards and guidelines build off of 
current range science, existing policies and land-use planning 
decisions concerning grazing activities. Second, it is anticipated that 
any additional NEPA analysis that may be needed can be tiered from the 
FEIS for this rule and incorporate analyses of other NEPA documents. 
The Department believes that an 18-month period is necessary to allow 
opportunity to consider local needs and concerns. In the long term, the 
Department believes that a development process that considers local 
circumstances along with national priorities will produce superior 
standards and guidelines.
    The fallback standards and guidelines are intended to provide 
protection should the development of the State or regional standards 
take longer than anticipated. The fallbacks are relatively general 
because they are intended to be applicable wherever State or regional 
standards and guidelines have not been put into effect within 18 months 
of the effective date of this final rule. The fallback provisions 
cannot be as specific or detailed as State or regional standards and 
guidelines that will be tailored to the conditions and needs of each 
State or region.
    Concerning the comment that the standards and guidelines should be 
developed through the land-use planning process, State or regional 
standards or guidelines that are inconsistent with existing land use 
plans will be analyzed in land use plan amendments. Management 
decisions such as resource condition objectives, thresholds, 
stipulations, and terms and conditions of BLM use authorizations that 
have been or are developed for purposes other than State or regional 
standards and guidelines for grazing administration are not subject to 
the provisions of developing and approving standards or guidelines 
presented in Sec. 4180.2. For example, an AMP decision that livestock 
use should not exceed a specified level of usage would not constitute a 
standard that would be subject to the provisions of Sec. 4180.2, but 
would remain as an AMP decision. However, the Department expects that 
the merits of officially adopting existing land use plan and other 
management decisions as State or regional standards or guidelines will 
be considered and that many proven practices will serve as the basis 
for State or regional standards or guidelines.
    The fundamentals of rangeland health, guiding principles for 
standards and the fallback standards address ecological components that 
are affected by all uses of public rangelands, not just livestock 
grazing. However, the scope of this final rule, and therefore the 
fundamentals of rangeland health of Sec. 4180.1, and the standards and 
guidelines to be made effective under Sec. 4180.2, are limited to 
grazing administration. Under this final rule, actions are to be taken 
by the authorized officer upon determining that grazing management 
practices and levels of use on public lands are significant factors in 
preventing achievement of the standards and conformance with the 
guidelines. Application of the principles contained in subpart 4180 to 
uses of public rangelands other than authorized grazing activities 
would require separate action by BLM or the Department.
    Some commenters questioned how the PACFISH standards and guidelines 
affect the standards and guidelines developed in this section. The 
Department recognizes that [[Page 9956]] coordination between the 
PACFISH effort and BLM range program is essential. The Rangeland Reform 
'94 EIS considered cumulative impacts of PACFISH and rangeland reform. 
Nothing in subpart 4180 is intended to affect special planning efforts 
such as those related to anadromous fish habitat (PACFISH) or the Upper 
Columbia River Basin EIS. These are separate efforts that will be 
coordinated, as appropriate, with activities under subpart 4180.
    Concerning the comment that the standard and guideline provisions 
are too strict and will drive livestock operators out of business, the 
guiding principles for the State or regional standards and guidelines 
are designed to allow State and regional issues to be considered while 
still resulting in significant progress toward established goals. 
Specific quantitative assessment methods for the listed items were not 
proposed because the Department believes specific assessment 
methodologies should be chosen in light of more site-specific 
considerations.
    The guiding principles for standards and guidelines require that 
State or regional standards and guidelines address the basic components 
of healthy rangelands. The Department believes that by implementing 
grazing-related actions that are consistent with the fundamentals of 
Sec. 4180.1 and the guiding principles of Sec. 4180.2, the long-term 
health of public rangelands can be ensured. The fallback standards and 
guidelines will also lead to improved rangeland health, but the 
fallbacks do not provide the same opportunities for tailoring to meet 
more-local resource conditions and livestock management practices.
    Standards and guidelines will be implemented through terms and 
conditions of grazing permits, leases, and other authorizations, 
grazing-related portions of activity plans (including AMPs), and 
through range improvement-related activities. The Department 
anticipates that in most cases the standards and guidelines themselves 
will not be terms and conditions of various authorizations but that the 
terms and conditions will reflect the standards and guidelines. For 
example, a standard for maintaining water quality may be implemented 
via a condition of a permit that livestock will not be allowed to 
occupy specified riparian areas during a certain time of year. In 
assessing the health of rangelands to determine whether action of the 
authorized officer is necessary, the BLM will generally consider the 
extent to which standards are being met and guidelines followed across 
the area of a grazing allotment or group of allotments. The Department 
intends that failing to comply with a standard in an isolated area 
would not necessarily result in corrective action.
    The Department recognizes that it will sometimes be a long-term 
process to restore some rangelands to properly functioning condition. 
The Department intends that the standards and guidelines will result in 
a balance of sustainable development and multiple use along with 
progress towards attaining healthy, properly functioning rangelands. 
For that reason, wording has been adopted in this final rule that will 
require the authorized officer to take appropriate action upon 
determining that existing grazing management practices are failing to 
ensure significant progress toward the fulfillment of the standards and 
toward conformance with the guidelines.
    Also, the Department recognizes that it is not possible to complete 
all assessments of rangeland health and to take appropriate corrective 
action, pursuant to Sec. 4180.2(c) of this final rule, immediately upon 
completion of the State or regional standards and guidelines or upon 
the fallbacks taking effect. The Department intends that assessments 
and corrective actions will be undertaken in priority order as 
determined by BLM.
    In some areas, it may take many years to achieve healthy 
rangelands, as evidenced by the fundamentals, established standards, 
and guidelines. The Department recognizes that, in some cases, trends 
may be hard to even document in the first year. The Department will use 
a variety of data including monitoring records, assessments, and 
knowledge of the locale to assist in making the ``significant 
progress'' determination. It is anticipated that in many cases it will 
take numerous grazing seasons to determine direction and magnitude of 
trend. However, actions will be taken to establish significant progress 
toward conformance as soon as sufficient data are available to make 
informed changes in grazing practices.
    Many commenters had suggestions or concerns specific to one or more 
of the guiding principles or fallback standards or guidelines. 
Commenters asserted the requirement pertaining to A-horizon soils was 
unrealistic, that suitability determinations need to be addressed, and 
that greater specificity should be provided for water quality and the 
protection of riparian areas. Commenters also stated that the standards 
and guidelines should include a prohibition on exceeding the livestock-
carrying capacity and should require an upward trend in soil and 
vegetation.
    The Department agrees that the A-horizon requirement would not 
serve as a useful standard on some BLM-administered lands since some 
naturally-occurring soil structures do not conform to this requirement. 
The standard that referenced ``A'' soil horizons has not been carried 
forward in this final rule. Comments suggesting the addition of 
suitability determinations have been addressed in the section-by-
section analysis for Sec. 4130.2. This final rule does not add a 
requirement for suitability determinations. The Department has decided 
not to add more detailed guidance pertaining to water quality or 
riparian areas but the wording of the guiding principles and fallbacks 
has been modified from that of the proposed rule to provide greater 
focus on watershed function. The Department intends that more specific 
provisions will be considered in the development of State or regional 
standards and guidelines following consideration of public input and 
the site-specific characteristics of the public rangelands. The concern 
that grazing use not be allowed to exceed the livestock carrying 
capacity is dealt with in Secs. 4110.2-2 and 4110.3 of this final rule. 
The suggestion that public rangelands be required to exhibit an upward 
trend in condition is adopted, in part, through the addition of the 
requirement that action be taken to ensure significant progress toward 
the fulfillment of the standards and toward conformance with the 
guidelines when the authorized officer determines that grazing 
management practices or levels of use are significant factors in 
failing to meet the standards or conform with the guidelines.
    References to meeting the minimum requirements of the ESA and State 
water quality standards have been removed from the fallback standards 
and guidelines. Both ESA requirements and water quality standards are 
included in the fundamentals presented in Sec. 4180.1 of this final 
rule and, therefore, do not need to be restated in the fallbacks. The 
fallback guidelines retain reference to promoting the restoration and 
maintenance of habitats of special status species, to make clear that 
it is the Department's intent to take reasonable measures to interrupt 
the decline of such habitats.
    References to minimum ESA requirements and State water quality 
standards have been retained in the guiding principles for the 
development of State or regional standards and guidelines. The 
Department intends that, as State or regional standards and 
[[Page 9957]] guidelines are developed, more specific and useful 
application of ESA requirements and water quality standards can be 
made. For instance, habitat requirements may be presented in measurable 
terms or tied to specific areas within the State or region.
    In accordance with the above discussion, the Department has decided 
to adopt the provision as proposed with the exception of modifications 
for clarity, consolidation and reordering of paragraphs, clarifying the 
concept of upward trend by adding the requirement for making 
``significant progress'' toward fulfilling the standards and toward 
conforming with the guidelines, removal from the fallbacks the 
redundant reference to ESA requirements and State water quality 
standards, and to incorporate more fully a watershed management 
approach and current science consistent with rangeland health goals.

VI. Procedural Matters

NEPA

    The BLM analyzed the impacts of these final rules in its 
``Rangeland Reform '94: Final Environmental Impact Statement,'' in 
accordance with section 102(2)(C) of the NEPA of 1969 (42 U.S.C. 
4332(c)(C)).
    A Record of Decision for the EIS for Rangeland Reform '94 was 
issued on February 13, 1995. The Department's decision is represented 
in the rule adopted today. The ROD departs from the preferred 
alternative in the FEIS in that it retains the existing grazing fee 
formula, identified as the PRIA (No Action) alternative, and makes 
minor modifications to the Preferred Management alternative. Changes 
made from the Preferred Management alternative of the FEIS, and 
adoption of the No Action Fee alternative, which are represented in the 
Record of Decision and this final rule, were found to be within the 
range of alternatives considered in the FEIS. Also, these changes were 
found not to affect the analysis of environmental consequences 
presented in the FEIS.

Executive Order 12778: Civil Justice Reform Certification

    This rule has been reviewed under the applicable standards of 
Executive Order 12778, Civil Justice Reform (56 FR 55195). The 
requirements of the Executive Order are covered by the preamble 
discussion of this rule. The Department certifies that this rule meets 
the applicable standards provided in Section 2(a) and 2(b)(2) of that 
Order. Where applicable, the recommendations and analyses required 
under Section 2(d) of that Order are attached to the certification and 
included in the administrative record of this rule.

Regulatory Flexibility Act

    The Department has determined that this final rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). A final 
regulatory flexibility analysis has been prepared and may be requested 
from the following address: Bureau of Land Management, U.S. Department 
of the Interior, Room 5555, Main Interior Building, 1849 C Street NW, 
Washington, DC 20240. The final rule will not change costs to industry 
or to the Federal, State, or local governments. Furthermore, the rule 
produces no adverse effects on competition, employment, investment, 
productivity, innovation, or the ability of United States enterprises 
to compete with foreign-based enterprises in domestic or export 
markets.

Executive Order 12866

    This final rule has been reviewed under Executive Order 12866.

Executive Order 12630

    This rule has been reviewed under Executive Order 12630, the 
Attorney General Guidelines, Department Guidelines, and the Attorney 
General Supplemental Guidelines to determine the takings implications 
of the proposed rule if it were promulgated as currently drafted. 
Because the relevant statutes and rules governing grazing on Federal 
land and case law interpreting said statutes and rules have 
consistently recognized grazing on Federal land as a revocable license 
and not a property interest, it has been determined that this final 
rule does not present a risk of a taking.

Paperwork Reduction Act

    The collections of information contained in this rule have been 
approved by OMB under 44 U.S.C. 3501, et seq. and assigned clearance 
numbers: 1004-0005, 1004-0019, 1004-0020, 1004-0041, 1004-0047, 1004-
0051, and 1004-0068.
    Public reporting burden for the information collections are as 
follows: Clearance number 1004-0005 is estimated to average 0.33 hours 
per response, clearance number 1004-0019 is estimated to average 0.33 
hours per response, clearance number 1004-0020 is estimated to average 
0.33 hours per response, clearance number 1004-0041 is estimated to 
average 0.25 hours per response, clearance number 1004-0047 is 
estimated to average 0.25 hours per response, clearance number 1004-
0051 is estimated to average 0.3 hours per response, and clearance 
number 1004-0068 is estimated to average 0.17 hours per response, 
including the time for reviewing instructions, searching existing data 
sources, gathering and maintaining the data needed, and completing and 
reviewing the collection of information. Send comments regarding this 
burden estimate or any other aspect of these collections of 
information, including suggestions for reducing the burden to the 
Information Collection Clearance Officer (873), Bureau of Land 
Management, Washington, DC 20240, and the Office of Management and 
Budget, Paperwork Reduction Project, 1004-0005, -0019, -0020, -0041, -
0047, -0051, or -0068, Washington, DC 20503.

Author

    The principal authors of this final rule are Annetta L. Cheek and 
Charles Hunt, Regulatory Management Team, with the assistance of many 
other staff members of the Bureau of Land Management, U.S. Department 
of the Interior, 1849 C St. NW., Washington, DC 20240.

List of Subjects

43 CFR Part 4

    Administrative practice and procedure, Civil rights, Claims, Equal 
access to justice, Government contracts, Grazing lands, Indians, 
Interior Department, Lawyers, Mines, Penalties, Public lands, Surface 
mining.

43 CFR Part 1780

    Administrative practice and procedure, Advisory committees, Land 
Management Bureau, Public lands.

43 CFR Part 4100

    Administrative practice and procedure, Grazing lands, Livestock, 
Penalties, Range management, Reporting and record keeping requirements.
    For the reasons stated in the preamble and under the authority of 
the FACA (5 U.S.C. Appendix), section 2 of the Reorganization Plan No. 
3 of 1950 (5 U.S.C. Appendix, as amended; 64 Stat. 1262), the TGA of 
1934 (43 U.S.C. 315, 315a-r), the Oregon and California Railroad and 
Coos Bay Wagon Road Grant Lands Act of 1937 (43 U.S.C. 1181d), and the 
FLPMA of 1976 (43 U.S.C. 1739, 1740), part 4 of subtitle A of title 43, 
and part 1780, group 1700, subchapter A, and part 4100, group 4100, 
subchapter D, of subtitle B of chapter II of title 43 of the Code of 
Federal Regulations are amended as set forth below: [[Page 9958]] 

PART 4--DEPARTMENT HEARINGS AND APPEALS PROCEDURES

    1. The authority for part 4 continues to read as follows:

    Authority: R.S. 2478, as amended, 43 U.S.C. sec. 1201, unless 
otherwise noted.

Subpart E--Special Rules Applicable to Public Land Hearings and 
Appeals

    2. The authority citation for subpart E of part 4 continues to read 
as follows:

    Authority: Sections 4.470 to 4.478 also issued under authority 
of sec. 2, 48 Stat. 1270; 43 U.S.C. 315a.

    3. Section 4.477 is amended by removing paragraph (a); removing the 
paragraph designations (b) (1), (2), and (3); and revising the first 
sentence of the paragraph to read as follows:


Sec. 4.477  Effect of decision suspended during appeal.

    Notwithstanding the provisions of Sec. 4.21(a) of this part 
pertaining to the period during which a final decision will not be in 
effect, and consistent with the provisions of Sec. 4160.3 of this 
title, the authorized officer may provide in his decision that it shall 
be in full force and effect pending decision on an appeal therefrom. * 
* *

PART 1780--COOPERATIVE RELATIONS

    4. The authority citation for part 1780 is revised to read as 
follows:

    Authority: 5 U.S.C. App. (Federal Advisory Committee Act); 43 
U.S.C. 1739.

Subpart 1784--Advisory Committees


Sec. 1784.0-5  [Amended]

    5. Section 1784.0-5 is amended by removing from paragraph (d) the 
term ``Authorized representative'' and adding in its place the words 
``Designated Federal officer''.
    6. Section 1784.2-1 is amended by removing paragraph (b), 
redesignating paragraph (c) as paragraph (b), and revising the newly 
redesignated paragraph (b) to read as follows:


Sec. 1784.2-1  Composition.

* * * * *
    (b) Individuals shall qualify to serve on an advisory committee 
because their education, training, or experience enables them to give 
informed and objective advice regarding an industry, discipline, or 
interest specified in the committee's charter; they have demonstrated 
experience or knowledge of the geographical area under the purview of 
the advisory committee; and they have demonstrated a commitment to 
collaborate in seeking solutions to resource management issues.
    7. Section 1784.2-2 is amended by revising paragraphs (a)(1), and 
(b), and by adding a new paragraph (c) to read as follows:


Sec. 1784.2-2  Avoidance of conflict of interest.

    (a) * * *
    (1) Holders of grazing permits and leases may serve on advisory 
committees, including resource advisory councils, and may serve on 
subgroups of such advisory councils;
* * * * *
    (b) No advisory committee members, including members of resource 
advisory councils, and no members of subgroups of such advisory 
committees, shall participate in any matter in which the members have a 
direct interest.
    (c) Members of advisory committees shall be required to disclose 
their direct or indirect interest in leases, licenses, permits, 
contracts, or claims and related litigation which involve lands or 
resources administered by the Bureau of Land Management. For the 
purposes of this paragraph, indirect interest includes holdings of a 
spouse or a dependent child.
    8. Section 1784.3 is amended by removing paragraphs (a), (b)(3), 
(b)(4), (b)(5), (c), (d) and (g); redesignating paragraphs (b)(1) and 
(b)(2) as paragraphs (a)(1) and (a)(2), respectively; adding 
introductory text before newly redesignated paragraph (a)(1); removing 
from newly redesignated paragraph (a)(1) the word ``district'' and 
adding in its place the words ``geographical area''; removing paragraph 
(b) and redesignating paragraphs (e) and (f) as paragraphs (b) and (c), 
respectively; removing the words ``his authorized representative'' from 
newly redesignated paragraph (c) and adding in its place the words 
``the designated Federal officer''; and adding a new paragraph (d) to 
read as follows:


Sec. 1784.3  Member service.

    (a) Appointments to advisory committees shall be for 2-year terms 
unless otherwise specified in the charter or the appointing document. 
Terms of service normally coincide with duration of the committee 
charter. Members may be appointed to additional terms at the discretion 
of the authorized appointing official.
* * * * *
    (d) For purposes of compensation, members of advisory committees 
shall be reimbursed for travel and per diem expenses when on advisory 
committee business, as authorized by 5 U.S.C. 5703. No reimbursement 
shall be made for expenses incurred by members of subgroups selected by 
established committees, except that the designated Federal officer may 
reimburse travel and per diem expenses to members of subgroups who are 
also members of the parent committee.


Sec. 1784.5-1 and 1784.5-2  [Amended]

    9. Sections 1784.5-1 and 1784.5-2 are amended by removing the 
phrase ``his authorized representative'' and adding in its place the 
phrase ``the designated Federal officer.''
    10. Section 1784.6 is revised to read as follows:


Sec. 1784.6  Membership and functions of resource advisory councils and 
sub-groups .

    11. Section 1784.6-1 is revised to read as follows:


Sec. 1784.6-1  Resource advisory councils--requirements.

    (a) Resource advisory councils shall be established to cover all 
lands administered by the Bureau of Land Management, except where--
    (1) There is insufficient interest in participation to ensure that 
membership can be fairly balanced in terms of the points of view 
represented and the functions to be performed; or
    (2) The location of the public lands with respect to the population 
of users and other interested parties precludes effective 
participation.
    (b) A resource advisory council advises the Bureau of Land 
Management official to whom it reports regarding the preparation, 
amendment and implementation of land use plans for public lands and 
resources within its area. Except for the purposes of long-range 
planning and the establishment of resource management priorities, a 
resource advisory council shall not provide advice on the allocation 
and expenditure of funds. A resource advisory council shall not provide 
advice regarding personnel actions.
    (c) The Secretary shall appoint the members of each resource 
advisory council. The Secretary shall appoint at least 1 elected 
official of general purpose government serving the people of the area 
to each council. An individual may not serve concurrently on more than 
1 resource advisory council. Council members and members of a rangeland 
resource team or other local general purpose subgroup must reside in 1 
of the States within the geographic jurisdiction of the council or 
subgroup, respectively. Council members and members of general purpose 
subgroups shall be representative of the interests of the following 3 
general groups:
    (1) Persons who-- [[Page 9959]] 
    (i) Hold Federal grazing permits or leases within the area for 
which the council is organized;
    (ii) Represent interests associated with transportation or rights-
of-way;
    (iii) Represent developed outdoor recreation, off-highway vehicle 
users, or commercial recreation activities;
    (iv) Represent the commercial timber industry; or
    (v) Represent energy and mineral development.
    (2) Persons representing--
    (i) Nationally or regionally recognized environmental 
organizations;
    (ii) Dispersed recreational activities;
    (iii) Archeological and historical interests; or
    (iv) Nationally or regionally recognized wild horse and burro 
interest groups.
    (3) Persons who--
    (i) Hold State, county or local elected office;
    (ii) Are employed by a State agency responsible for management of 
natural resources, land, or water;
    (iii) Represent Indian tribes within or adjacent to the area for 
which the council is organized;
    (iv) Are employed as academicians in natural resource management or 
the natural sciences; or
    (v) Represent the affected public-at-large.
    (d) In appointing members of a resource advisory council from the 3 
categories set forth in paragraphs (c)(1), (c)(2), and (c)(3) of this 
section, the Secretary shall provide for balanced and broad 
representation from within each category.
    (e) In making appointments to resource advisory councils the 
Secretary shall consider nominations made by the Governor of the State 
or States affected and nominations received in response to public calls 
for nominations pursuant to Sec. 1784.4-1. Persons interested in 
serving on resource advisory councils may nominate themselves. All 
nominations shall be accompanied by letters of reference from interests 
or organizations to be represented.
    (f) Persons appointed to resource advisory councils shall attend a 
course of instruction in the management of rangeland ecosystems that 
has been approved by the Bureau of Land Management State Director.
    (g) A resource advisory council shall meet at the call of the 
designated Federal officer and elect its own officers. The designated 
Federal officer shall attend all meetings of the council.
    (h) Council charters must include rules defining a quorum and 
establishing procedures for sending recommendations forward to BLM. A 
quorum of council members must be present to constitute an official 
meeting of the council. Formal recommendations shall require agreement 
of at least a majority of each of the 3 categories of interest from 
which appointments are made.
    (i) Where the resource advisory council becomes concerned that its 
advice is being arbitrarily disregarded, the council may request that 
the Secretary respond directly to such concerns within 60 days of 
receipt. Such a request can be made only upon the agreement of all 
council members. The Secretary's response shall not constitute a 
decision on the merits of any issue that is or might become the subject 
of an administrative appeal, and shall not be appealable.
    (j) Administrative support for a resource advisory council shall be 
provided by the office of the designated Federal officer.
    12. A new Sec. 1784.6-2 is added to read as follows:


Sec. 1784.6-2  Resource advisory councils--optional features.

    (a) Resource advisory councils must be established consistent with 
any 1 of the 3 models in paragraphs (a)(1), (a)(2), and (a)(3) of this 
section. The model type and boundaries for resource advisory councils 
shall be established by the BLM State Director(s) in consultation with 
the Governors of the affected States and other interested parties.

(1) Model A

    (i) Council jurisdiction. The geographic jurisdiction of a council 
shall coincide with BLM District or ecoregion boundaries. The Governor 
of the affected States or existing resource advisory councils may 
petition the Secretary to establish a resource advisory council for a 
specified Bureau of Land Management resource area. The councils will 
provide advice to the Bureau of Land Management official to whom they 
report regarding the preparation, amendment and implementation of land 
use plans. The councils will also assist in establishing other long-
range plans and resource management priorities in an advisory capacity, 
including providing advice on the development of plans for range 
improvement or development programs.
    (ii) Membership. Each council shall have 15 members, distributed 
equally among the 3 interest groups specified in Sec. 1784.6-1(c).
    (iii) Quorum and voting requirements. At least 3 council members 
from each of the 3 categories of interest from which appointments are 
made pursuant to Sec. 1784.6-1(c) must be present to constitute an 
official meeting of the council. Formal recommendations shall require 
agreement of at least 3 council members from each of the 3 categories 
of interest from which appointments are made.
    (iv) Subgroups. Local rangeland resource teams may be formed within 
the geographical area for which a resource advisory council provides 
advice, down to the level of a single allotment. These teams may be 
formed by a resource advisory council on its own motion or in response 
to a petition by local citizens. Rangeland resource teams will be 
formed for the purpose of providing local level input to the resource 
advisory council regarding issues pertaining to the administration of 
grazing on public land within the area for which the rangeland resource 
team is formed.
    (A) Rangeland resource teams will consist of 5 members selected by 
the resource advisory council. Membership will include 2 persons 
holding Federal grazing permits or leases. Additional members will 
include 1 person representing the public-at-large, 1 person 
representing a nationally or regionally recognized environmental 
organization, and 1 person representing national, regional, or local 
wildlife or recreation interests. Persons selected by the council to 
represent the public-at-large, environmental, and wildlife or 
recreation interests may not hold Federal grazing permits or leases. At 
least 1 member must be selected from the membership of the resource 
advisory council.
    (B) The resource advisory council will be required to select 
rangeland resource team members from nominees who qualify by virtue of 
their knowledge or experience of the lands, resources, and communities 
that fall within the area for which the team is formed. All nominations 
must be accompanied by letters of recommendation from the groups or 
interests to be represented.
    (C) All members of rangeland resource teams will attend a course of 
instruction in the management of rangeland ecosystems that has been 
approved by the BLM State Director. Rangeland resource teams will have 
opportunities to raise any matter of concern with the resource advisory 
council and to request that BLM form a technical review team, as 
described below, to provide information and options to the council for 
their consideration.
    (D) Technical review teams can be formed by the BLM authorized 
officer on the motion of BLM or in response to a request by the 
resource advisory council or a rangeland resource team. 
[[Page 9960]] The purpose of such teams is to gather and analyze data 
and develop recommendations to aid the decisionmaking process, and 
functions will be limited to tasks assigned by the authorized officer. 
Membership will be limited to Federal employees and paid consultants. 
Members will be selected based upon their knowledge of resource 
management or their familiarity with the specific issues for which the 
technical review team has been formed. Technical review teams will 
terminate upon completion of the assigned task.

(2) Model B

    (i) Council jurisdiction. The jurisdiction of the council shall be 
Statewide, or on an ecoregion basis. The purpose of the council is to 
promote federal, state, and local cooperation in the management of 
natural resources on public lands, and to coordinate the development of 
sound resource management plans and activities with other states. It 
will provide an opportunity for meaningful public participation in land 
management decisions at the state level and will foster conflict 
resolution through open dialogue and collaboration.
    (ii) Membership. The council shall have 15 members, distributed 
equally among the 3 interest groups specified in Sec. 1784.6-1(c), and 
will include at least one representative from wildlife interest groups, 
grazing interests, minerals and energy interests, and established 
environmental/conservation interests. The Governor shall chair the 
council.
    (iii) Quorum and voting requirements. The charter of the council 
shall specify that 80% or 12 members must be present to constitute a 
quorum and conduct official business, and that 80% or 12 members of the 
council must vote affirmatively to refer an issue to BLM Federal 
officer.
    (iv) Subgroups. Local rangeland resource teams may be formed by the 
Statewide council, down to the level of a 4th order watershed. 
Rangeland resource teams will be formed for the purpose of providing 
local level input to the resource advisory council. They will meet at 
least quarterly and will promote a decentralized administrative 
approach, encourage good stewardship, emphasize coordination and 
cooperation among agencies, permittees and the interested public, 
develop proposed solutions and management plans for local resources on 
public lands, promote renewable rangeland resource values, develop 
proposed standards to address sustainable resource uses and rangeland 
health, address renewable rangeland resource values, propose and 
participate in the development of area-specific National Environmental 
Policy Act documents, and develop range and wildlife education and 
training programs. As with the resource advisory council, an 80% 
affirmative vote will be required to send a recommendation to the 
resource advisory council.
    (A) Rangeland resource teams will not exceed 10 members and will 
include at least 2 persons from environmental or wildlife groups, 2 
grazing permittees, 1 elected official, 1 game and fish district 
representative, 2 members of the public or other interest groups, and a 
Federal officer from BLM. Members will be appointed for 2 year terms by 
the resource advisory council and may be reappointed. No member may 
serve on more than 1 rangeland resource team.
    (B) Technical review teams can be formed by the BLM authorized 
officer on the motion of BLM or in response to a request by the 
resource advisory council or a rangeland resource team. The purpose of 
such teams is to gather and analyze data and develop recommendations to 
aid the decisionmaking process, and functions will be limited to tasks 
assigned by the authorized officer. Membership will be limited to 
Federal employees and paid consultants. Members will be selected based 
upon their knowledge of resource management or their familiarity with 
the specific issues for which the technical review team has been 
formed. Technical review teams will terminate upon completion of the 
assigned task.

(3) Model C

    (i) Council jurisdiction. The jurisdiction of the council shall be 
on the basis of ecoregion, State, or BLM district boundaries.
    (ii) Membership. Membership of the council shall be 10 to 15 
members, distributed in a balanced fashion among the 3 interest groups 
defined in Sec. 1784.6-1(c).
    (iii) Quorum and voting requirements. The charter of each council 
shall specify that a majority of each interest group must be present to 
constitute a quorum and conduct official business, and that a majority 
of each interest group must vote affirmatively to refer an issue to BLM 
Federal officer.
    (iv) Subgroups. Resource advisory councils may form more local 
teams to provide general local level input to the resource advisory 
council on issues necessary to the successful functioning of the 
council. Such subgroups can be formed in response to a petition from 
local citizens or on the motion of the resource advisory council. 
Membership in any subgroup formed for the purpose of providing general 
input to the resource advisory council on grazing administration should 
be constituted in accordance with provisions for membership in 
Sec. 1784.6-1(c).
    (A) Technical review teams can be formed by the BLM authorized 
officer on the motion of BLM or in response to a request by the 
resource advisory council or a local team. The purpose of such 
technical review teams is to gather and analyze data and develop 
recommendations to aid the decisionmaking process, and functions will 
be limited to tasks assigned by the authorized officer. Membership will 
be limited to Federal employees and paid consultants. Members will be 
selected based upon their knowledge of resource management or their 
familiarity with the specific issues for which the technical review 
team has been formed. Technical review teams will terminate upon 
completion of the assigned task.
    (B) [Reserved]


Sec. 1784.6-3 through 1784.6-5  [Removed]

    13. Sections 1784.6-3 through 1784.6-5 are removed.

PART 4100--GRAZING ADMINISTRATION--EXCLUSIVE OF ALASKA

    14. The authority citation for part 4100 is revised to read as 
follows:

    Authority: 43 U.S.C. 315, 315a-315r, 1181d, 1740.

    15. Section 4100.0-2 is revised to read as follows:


Sec. 4100.0-2  Objectives.

    The objectives of these regulations are to promote healthy 
sustainable rangeland ecosystems; to accelerate restoration and 
improvement of public rangelands to properly functioning conditions; to 
promote the orderly use, improvement and development of the public 
lands; to establish efficient and effective administration of grazing 
of public rangelands; and to provide for the sustainability of the 
western livestock industry and communities that are dependent upon 
productive, healthy public rangelands. These objectives shall be 
realized in a manner that is consistent with land use plans, multiple 
use, sustained yield, environmental values, economic and other 
objectives stated in 43 CFR part 1720, subpart 1725; the Taylor Grazing 
Act of June 28, 1934, as amended (43 U.S.C. 315, 315a-315r); section 
102 of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 
1740).
    16. Section 4100.0-5 is amended by removing the definition of 
``Affected interests,'' ``Grazing preference,'' and ``Subleasing''; 
revising the definitions of [[Page 9961]] ``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'' to read as follows:


Sec. 4100.0-5  Definitions.

* * * * *
    Active use means the current authorized use, including livestock 
grazing and conservation use. Active use may constitute a portion, or 
all, of permitted use. Active use does not include temporary nonuse or 
suspended use of forage within all or a portion of an allotment.
    Activity plan means a plan for managing a resource use or value to 
achieve specific objectives. For example, an allotment management plan 
is an activity plan for managing livestock grazing use to improve or 
maintain rangeland conditions.
    Actual use means where, how many, what kind or class of livestock, 
and how long livestock graze on an allotment, or on a portion or 
pasture of an allotment.
* * * * *
    Affiliate means an entity or person that controls, is controlled 
by, or is under common control with, an applicant, permittee or lessee. 
The term ``control'' means having any relationship which gives an 
entity or person authority directly or indirectly to determine the 
manner in which an applicant, permittee or lessee conducts grazing 
operations.
* * * * *
    Allotment management plan (AMP) means a documented program 
developed as an activity plan, consistent with the definition at 43 
U.S.C. 1702(k), that focuses on, and contains the necessary 
instructions for, the management of livestock grazing on specified 
public lands to meet resource condition, sustained yield, multiple use, 
economic and other objectives.
    Annual rangelands means those designated areas in which livestock 
forage production is primarily attributable to annual plants and varies 
greatly from year to year.
* * * * *
    Conservation use means an activity, excluding livestock grazing, on 
all or a portion of an allotment for purposes of--
    (1) Protecting the land and its resources from destruction or 
unnecessary injury;
    (2) Improving rangeland conditions; or
    (3) Enhancing resource values, uses, or functions.
    Consultation, cooperation, and coordination means interaction for 
the purpose of obtaining advice, or exchanging opinions on issues, 
plans, or management actions.
* * * * *
    Ephemeral rangelands means areas of the Hot Desert Biome (Region) 
that do not consistently produce enough forage to sustain a livestock 
operation but may briefly produce unusual volumes of forage to 
accommodate livestock grazing.
* * * * *
    Grazing lease means a document authorizing use of the public lands 
outside an established grazing district. Grazing leases specify all 
authorized use including livestock grazing, suspended use, and 
conservation use. Leases specify the total number of AUMs apportioned, 
the area authorized for grazing use, or both.
    Grazing permit means a document authorizing use of the public lands 
within an established grazing district. Grazing permits specify all 
authorized use including livestock grazing, suspended use, and 
conservation use. Permits specify the total number of AUMs apportioned, 
the area authorized for grazing use, or both.
    Grazing preference or preference means a superior or priority 
position against others for the purpose of receiving a grazing permit 
or lease. This priority is attached to base property owned or 
controlled by the permittee or lessee.
    Interested public means an individual, group or organization that 
has submitted a written request to the authorized officer to be 
provided an opportunity to be involved in the decisionmaking process 
for the management of livestock grazing on specific grazing allotments 
or has submitted written comments to the authorized officer regarding 
the management of livestock grazing on a specific allotment.
    Land use plan means a resource management plan, developed under the 
provisions of 43 CFR part 1600, or a management framework plan. These 
plans are developed through public participation in accordance with the 
provisions of the Federal Land Policy and Management Act of 1976 (43 
U.S.C 1701 et seq.) and establish management direction for resource 
uses of public lands.
* * * * *
    Permitted use means the forage allocated by, or under the guidance 
of, an applicable land use plan for livestock grazing in an allotment 
under a permit or lease and is expressed in AUMs.
* * * * *
    Range improvement means an authorized physical modification or 
treatment which is designed to improve production of forage; change 
vegetation composition; control patterns of use; provide water; 
stabilize soil and water conditions; restore, protect and improve the 
condition of rangeland ecosystems to benefit livestock, wild horses and 
burros, and fish and wildlife. The term includes, but is not limited 
to, structures, treatment projects, and use of mechanical devices or 
modifications achieved through mechanical means.
* * * * *
    Suspension means the temporary withholding from active use, through 
a decision issued by the authorized officer or by agreement, of part or 
all of the permitted use in a grazing permit or lease.
    Temporary nonuse means the authorized withholding, on an annual 
basis, of all or a portion of permitted livestock use in response to a 
request of the permittee or lessee.
* * * * *
    Unauthorized leasing and subleasing means--
    (1) The lease or sublease of a Federal grazing permit or lease, 
associated with the lease or sublease of base property, to another 
party without a required transfer approved by the authorized officer;
    (2) The lease or sublease of a Federal grazing permit or lease to 
another party without the assignment of the associated base property;
    (3) Allowing another party, other than sons and daughters of the 
grazing permittee or lessee meeting the requirements of Sec. 4130.7(f), 
to graze on public lands livestock that are not owned or controlled by 
the permittee or lessee; or
    (4) Allowing another party, other than sons and daughters of the 
grazing permittee or lessee meeting the requirements of Sec. 4130.7(f), 
to graze livestock on public lands under a pasturing agreement without 
the approval of the authorized officer.
    Utilization means the portion of forage that has been consumed by 
livestock, wild horses and burros, wildlife and insects during a 
specified period. The term is also used to refer to the pattern of such 
use. [[Page 9962]] 
    17. Section 4100.0-7 is revised to read as follows:


Sec. 4100.0-7  Cross reference.

    The regulations at part 1600 of this chapter govern the development 
of land use plans; the regulations at part 1780, subpart 1784 of this 
chapter govern advisory committees; and the regulations at subparts B 
and E of part 4 of this title govern appeals and hearings.
    18. A new Sec. 4100.0-9 is added to read as follows:


Sec. 4100.0-9  Information collection.

    (a) The information collection requirements contained in Group 4100 
have been approved by the Office of Management and Budget under 44 
U.S.C. 3501 et seq. and assigned clearance numbers 1004-0005, 1004-
0019, 1004-0020, 1004-0041, 1004-0047, 1004-0051, and 1004-0068. The 
information would be collected to permit the authorized officer to 
determine whether an application to utilize public lands for grazing or 
other purposes should be approved. Response is required to obtain a 
benefit.
    (b) Public reporting burden for the information collections are as 
follows: Clearance number 1004-0005 is estimated to average 0.33 hours 
per response, clearance number 1004-0019 is estimated to average 0.33 
hours per response, clearance number 1004-0020 is estimated to average 
0.33 hours per response, clearance number 1004-0041 is estimated to 
average 0.25 hours per response, clearance number 1004-0047 is 
estimated to average 0.25 hours per response, clearance number 1004-
0051 is estimated to average 0.3 hours per response, and clearance 
number 1004-0068 is estimated to average 0.17 hours per response, 
including the time for reviewing instructions, searching existing data 
sources, gathering and maintaining the data needed, and completing and 
reviewing the collection of information. Send comments regarding this 
burden estimate or any other aspect of these collections of 
information, including suggestions for reducing the burden to the 
Information Collection Clearance Officer (873), Bureau of Land 
Management, Washington, DC 20240, and the Office of Management and 
Budget, Paperwork Reduction Project, 1004-0005, -0019, -0020, -0041, -
0047, -0051, or -0068, Washington, DC 20503.

Subpart 4110--Qualifications and Preference

    19. Section 4110.1 is amended by redesignating the introductory 
text of the section, and paragraphs (a), (b), and (c) as the 
introductory text of paragraph (a), (a)(1), (a)(2), and (a)(3), 
respectively, revising the introductory text of newly redesignated 
paragraph (a), and adding new paragraphs (b), (c), and (d) to read as 
follows:


Sec. 4110.1  Mandatory qualifications.

    (a) Except as provided under Secs. 4110.1-1, 4130.5, and 4130.6-3, 
to qualify for grazing use on the public lands an applicant must own or 
control land or water base property, and must be:
* * * * *
    (b) Applicants for the renewal or issuance of new permits and 
leases and any affiliates must be determined by the authorized officer 
to have a satisfactory record of performance.
    (1) Renewal of permit or lease. (i) The applicant for renewal of a 
grazing permit or lease, and any affiliate, shall be deemed to have a 
satisfactory record of performance if the authorized officer determines 
the applicant and affiliates to be in substantial compliance with the 
terms and conditions of the existing Federal grazing permit or lease 
for which renewal is sought, and with the rules and regulations 
applicable to the permit or lease.
    (ii) The authorized officer may take into consideration 
circumstances beyond the control of the applicant or affiliate in 
determining whether the applicant and affiliates are in substantial 
compliance with permit or lease terms and conditions and applicable 
rules and regulations.
    (2) New permit or lease. Applicants for new permits or leases, and 
any affiliates, shall be deemed not to have a record of satisfactory 
performance when--
    (i) The applicant or affiliate has had any Federal grazing permit 
or lease cancelled for violation of the permit or lease within the 36 
calendar months immediately preceding the date of application; or
    (ii) The applicant or affiliate has had any State grazing permit or 
lease, for lands 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
    (iii) The applicant or affiliate is barred from holding a Federal 
grazing permit or lease by order of a court of competent jurisdiction.
    (c) In determining whether affiliation exists, the authorized 
officer shall consider all appropriate factors, including, but not 
limited to, common ownership, common management, identity of interests 
among family members, and contractual relationships.
    (d) Applicants shall submit an application and any other relevant 
information requested by the authorized officer in order to determine 
that all qualifications have been met.
    20. Section 4110.1-1 is revised to read as follows:


Sec. 4110.1-1  Acquired lands.

    Where lands have been acquired by the Bureau of Land Management 
through purchase, exchange, Act of Congress or Executive Order, and an 
agreement or the terms of the act or Executive Order provide that the 
Bureau of Land Management shall honor existing grazing permits or 
leases, such permits or leases are governed by the terms and conditions 
in effect at the time of acquisition by the Bureau of Land Management, 
and are not subject to the requirements of Sec. 4110.1.
    21. Section 4110.2-1 is amended by revising paragraphs (a)(1), 
(a)(2) and (c) to read as follows:


Sec. 4110.2-1  Base Property.

    (a) * * *
    (1) It is capable of serving as a base of operation for livestock 
use of public lands within a grazing district; or
    (2) It is contiguous land, or, when no applicant owns or controls 
contiguous land, noncontiguous land that is capable of being used in 
conjunction with a livestock operation which would utilize public lands 
outside a grazing district.
* * * * *
    (c) An applicant shall provide a legal description, or plat, of the 
base property and shall certify to the authorized officer that this 
base property meets the requirements under paragraphs (a) and (b) of 
this section. A permittee's or lessee's interest in water previously 
recognized as base property on public land shall be deemed sufficient 
in meeting the requirement that the applicant control base property. 
Where such waters become unusable and are replaced by newly constructed 
or reconstructed water developments that are the subject of a range 
improvement permit or cooperative range improvement agreement, the 
permittee's or lessee's interest in the replacement water shall be 
deemed sufficient in meeting the requirement that the applicant control 
base property.
* * * * *
    22. Section 4110.2-2 is amended by removing the term ``grazing 
preference'' from paragraph (c) and adding in its place the term 
``permitted use'' and by revising the section heading and paragraph (a) 
to read as follows: [[Page 9963]] 


Sec. 4110.2-2  Specifying permitted use.

    (a) Permitted use is granted to holders of grazing preference and 
shall be specified in all grazing permits and leases. Permitted use 
shall encompass all authorized use including livestock use, any 
suspended use, and conservation use, except for permits and leases for 
designated ephemeral rangelands where livestock use is authorized based 
upon forage availability, or designated annual rangelands. Permitted 
livestock use shall be based upon the amount of forage available for 
livestock grazing as established in the land use plan, activity plan, 
or decision of the authorized officer under Sec. 4110.3-3, except, in 
the case of designated ephemeral or annual rangelands, a land use plan 
or activity plan may alternatively prescribe vegetation standards to be 
met in the use of such rangelands.
* * * * *
    23. Section 4110.2-3 is amended by redesignating paragraph (f) as 
paragraph (g), removing from paragraph (b) the term ``grazing 
preference'' and adding in its place the term ``permitted use,'' 
revising paragraph (a)(1), and adding a new paragraph (f) to read as 
follows:


Sec. 4110.2-3  Transfer of grazing preference.

    (a) * * *
    (1) The transferee shall meet all qualifications and requirements 
of Secs. 4110.1, 4110.2-1, and 4110.2-2.
* * * * *
    (f) Transfers shall be for a period of not less than 3 years unless 
a shorter term is determined by the authorized officer to be consistent 
with management and resource condition objectives.
* * * * *
    24. Section 4110.2-4 is revised to read as follows:


Sec. 4110.2-4  Allotments.

    After consultation, cooperation, and coordination with the affected 
grazing permittees or lessees, the State having lands or responsible 
for managing resources within the area, and the interested public, the 
authorized officer may designate and adjust grazing allotment 
boundaries. The authorized officer may combine or divide allotments, 
through an agreement or by decision, when necessary for the proper and 
efficient management of public rangelands.
    25. Section 4110.3 is revised to read as follows:


Sec. 4110.3  Changes in permitted use.

    The authorized officer shall periodically review the permitted use 
specified in a grazing permit or lease and shall make changes in the 
permitted use as needed to manage, maintain or improve rangeland 
productivity, to assist in restoring ecosystems to properly functioning 
condition, to conform with land use plans or activity plans, or to 
comply with the provisions of subpart 4180 of this part. These changes 
must be supported by monitoring, field observations, ecological site 
inventory or other data acceptable to the authorized officer.
    26. Section 4110.3-1 is amended by removing the words ``grazing 
preferences'' from paragraph (b) and adding in their place the words 
``suspended permitted use''; removing from paragraph (c)(2) the term 
``grazing preference'' and adding in its place the term ``permitted 
use'' and removing the words ``and/or'' and adding in their place the 
word ``and''; revising the section heading, paragraph (a), the 
introductory text of paragraph (c), and paragraph (c)(1), to read as 
follows:


Sec. 4110.3-1  Increasing permitted use.

* * * * *
    (a) Additional forage temporarily available for livestock grazing 
use may be apportioned on a nonrenewable basis.
* * * * *
    (c) After consultation, cooperation, and coordination with the 
affected permittees or lessees, the State having lands or managing 
resources within the area, and the interested public, additional forage 
on a sustained yield basis available for livestock grazing use in an 
allotment may be apportioned to permittees or lessees or other 
applicants, provided the permittee, lessee, or other applicant is found 
to be qualified under subpart 4110 of this part. Additional forage 
shall be apportioned in the following priority:
    (1) Permittees or lessees in proportion to their contribution or 
stewardship efforts which result in increased forage production;
* * * * *
    27. Section 4110.3-2 is amended by revising the section heading, 
removing from paragraph (a) the term ``Active'' and adding in its place 
the term ``Permitted,'' removing paragraph (c) and revising paragraph 
(b) to read as follows:


Sec. 4110.3-2  Decreasing permitted use.

* * * * *
    (b) When monitoring or field observations show grazing use or 
patterns of use are not consistent with the provisions of subpart 4180, 
or grazing use is otherwise causing an unacceptable level or pattern of 
utilization, or when use exceeds the livestock carrying capacity as 
determined through monitoring, ecological site inventory or other 
acceptable methods, the authorized officer shall reduce permitted 
grazing use or otherwise modify management practices.
    28. Section 4110.3-3 is revised to read as follows:


Sec. 4110.3-3  Implementing reductions in permitted use.

    (a) After consultation, cooperation, and coordination with the 
affected permittee or lessee, the State having lands or managing 
resources within the area, and the interested public, reductions of 
permitted use shall be implemented through a documented agreement or by 
decision of the authorized officer. Decisions implementing Sec. 4110.3-
2 shall be issued as proposed decisions pursuant to Sec. 4160.1, except 
as provided in paragraph (b) of this section.
    (b) When the authorized officer determines that the soil, 
vegetation, or other resources on the public lands require immediate 
protection because of conditions such as drought, fire, flood, insect 
infestation, or when continued grazing use poses an imminent likelihood 
of significant resource damage, after consultation with, or a 
reasonable attempt to consult with, affected permittees or lessees, the 
interested public, and the State having lands or responsible for 
managing resources within the area, the authorized officer shall close 
allotments or portions of allotments to grazing by any kind of 
livestock or modify authorized grazing use notwithstanding the 
provisions of paragraph (a) of this section. Notices of closure and 
decisions requiring modification of authorized grazing use may be 
issued as final decisions effective upon issuance or on the date 
specified in the decision. Such decisions shall remain in effect 
pending the decision on appeal unless a stay is granted by the Office 
of Hearings and Appeals in accordance with 43 CFR 4.21.
    29. Section 4110.4-2 is amended by revising paragraphs (a)(1) and 
(a)(2) to read as follows:


Sec. 4110.4-2  Decrease in land acreage.

    (a) * * *
    (1) Grazing permits or leases may be cancelled or modified as 
appropriate to reflect the changed area of use.
    (2) Permitted use may be cancelled in whole or in part. 
Cancellations determined by the authorized officer to be necessary to 
protect the public lands will be apportioned by the authorized officer 
based upon the level of available [[Page 9964]] forage and the 
magnitude of the change in public land acreage available, or as agreed 
to among the authorized users and the authorized officer.
* * * * *

Subpart 4120--Grazing Management

    30. Section 4120.2 is revised to read as follows:


Sec. 4120.2  Allotment management plans and resource activity plans.

    Allotment management plans or other activity plans intended to 
serve as the functional equivalent of allotment management plans may be 
developed by permittees or lessees, other Federal or State resource 
management agencies, interested citizens, and the Bureau of Land 
Management. When such plans affecting the administration of grazing 
allotments are developed, the following provisions apply:
    (a) An allotment management plan or other activity plans intended 
to serve as the functional equivalent of allotment management plans 
shall be prepared in careful and considered consultation, cooperation, 
and coordination with affected permittees or lessees, landowners 
involved, the resource advisory council, any State having lands or 
responsible for managing resources within the area to be covered by 
such a plan, and the interested public. The plan shall become effective 
upon approval by the authorized officer. The plans shall--
    (1) Include terms and conditions under Secs. 4130.3, 4130.3-1, 
4130.3-2 4130.3-3, and subpart 4180 of this part;
    (2) Prescribe the livestock grazing practices necessary to meet 
specific resource objectives;
    (3) Specify the limits of flexibility, to be determined and granted 
on the basis of the operator's demonstrated stewardship, within which 
the permittee(s) or lessee(s) may adjust operations without prior 
approval of the authorized officer; and
    (4) Provide for monitoring to evaluate the effectiveness of 
management actions in achieving the specific resource objectives of the 
plan.
    (b) Private and State lands may be included in allotment management 
plans or other activity plans intended to serve as the functional 
equivalent of allotment management plans dealing with rangeland 
management with the consent or at the request of the parties who own or 
control those lands.
    (c) The authorized officer shall provide opportunity for public 
participation in the planning and environmental analysis of proposed 
plans affecting the administration of grazing and shall give public 
notice concerning the availability of environmental documents prepared 
as a part of the development of such plans, prior to implementing the 
plans. The decision document following the environmental analysis shall 
be considered the proposed decision for the purposes of subpart 4160 of 
this part.
    (d) A requirement to conform with completed allotment management 
plans or other applicable activity plans intended to serve as the 
functional equivalent of allotment management plans shall be 
incorporated into the terms and conditions of the grazing permit or 
lease for the allotment.
    (e) Allotment management plans or other applicable activity plans 
intended to serve as the functional equivalent of allotment management 
plans may be revised or terminated by the authorized officer after 
consultation, cooperation, and coordination with the affected 
permittees or lessees, landowners involved, the multiple resource 
advisory council, any State having lands or responsible for managing 
resources within the area to be covered by the plan, and the interested 
public.
    31. Section 4120.3-1 is amended by adding the words ``range 
improvement'' immediately before the word ``agreement'' in paragraphs 
(b) and (e), and by adding a new paragraph (f) to read as follows:


Sec. 4120.3-1   Conditions for range improvements.

* * * * *
    (f) Proposed range improvement projects shall be reviewed in 
accordance with the requirements of the National Environmental Policy 
Act of 1969 (42 U.S.C. 4371 et seq.). The decision document following 
the environmental analysis shall be considered the proposed decision 
under subpart 4160 of this part.
    32. Section 4120.3-2 is revised to read as follows:


Sec. 4120.3-2   Cooperative range improvement agreements.

    (a) BLM may enter into a cooperative range improvement agreement 
with a person, organization, or other government entity for the 
installation, use, maintenance, and/or modification of permanent range 
improvements or rangeland developments to achieve management or 
resource condition objectives. The cooperative range improvement 
agreement shall specify how the costs or labor, or both, shall be 
divided between the United States and cooperator(s).
    (b) Subject to valid existing rights, title to permanent range 
improvements such as fences, wells, and pipelines where authorization 
is granted after August 21, 1995 shall be in the name of the United 
States. The authorization for all new permanent water developments such 
as spring developments, wells, reservoirs, stock tanks, and pipelines 
shall be through cooperative range improvement agreements. A 
permittee's or lessee's interest in contributed funds, labor, and 
materials will be documented by BLM to ensure proper credit for the 
purposes of Secs. 4120.3-5 and 4120.3-6(c).
    (c) The United States shall have title to nonstructural range 
improvements such as seeding, spraying, and chaining.
    (d) Range improvement work performed by a cooperator or permittee 
on the public lands or lands administered by BLM does not confer the 
exclusive right to use the improvement or the land affected by the 
range improvement work.
    33. Section 4120.3-3 is amended by revising the first sentence of 
paragraph (a), and paragraphs (b) and (c) to read as follows:


Sec. 4120.3-3   Range improvement permits.

    (a) Any permittee or lessee may apply for a range improvement 
permit to install, use, maintain, and/or modify removable range 
improvements that are needed to achieve management objectives for the 
allotment in which the permit or lease is held. * * *
    (b) The permittee or lessee may hold the title to authorized 
removable range improvements used as livestock handling facilities such 
as corrals, creep feeders, and loading chutes, and to temporary 
structural improvements such as troughs for hauled water.
    (c) Where a permittee or lessee cannot make use of the forage 
available for livestock and an application for temporary nonuse or 
conservation use has been denied or the opportunity to make use of the 
available forage is requested by the authorized officer, the permittee 
or lessee shall cooperate with the temporary authorized use of forage 
by another operator, when it is authorized by the authorized officer 
following consultation with the preference permittee(s) or lessee(s).
    (1) A permittee or lessee shall be reasonably compensated for the 
use and maintenance of improvements and facilities by the operator who 
has an authorization for temporary grazing use.
    (2) The authorized officer may mediate disputes about reasonable 
compensation and, following consultation with the interested parties, 
make a determination concerning the [[Page 9965]] fair and reasonable 
share of operation and maintenance expenses and compensation for use of 
authorized improvements and facilities.
    (3) Where a settlement cannot be reached, the authorized officer 
shall issue a temporary grazing authorization including appropriate 
terms and conditions and the requirement to compensate the preference 
permittee or lessee for the fair share of operation and maintenance as 
determined by the authorized officer under subpart 4160 of this part.
    34. Section 4120.3-8 is added to read as follows:


Sec. 4120.3-8   Range improvement fund.

    (a) In addition to range developments accomplished through other 
resource management funds, authorized range improvements may be secured 
through the use of the appropriated range improvement fund. One-half of 
the available funds shall be expended in the State and district from 
which they were derived. The remaining one-half of the fund shall be 
allocated, on a priority basis, by the Secretary for on-the-ground 
rehabilitation, protection and improvement of public rangeland 
ecosystems.
    (b) Funds appropriated for range improvements are to be used for 
investment in all forms of improvements that benefit rangeland 
resources including riparian area rehabilitation, improvement and 
protection, fish and wildlife habitat improvement or protection, soil 
and water resource improvement, wild horse and burro habitat management 
facilities, vegetation improvement and management, and livestock 
grazing management. The funds may be used for activities associated 
with on-the-ground improvements including the planning, design, layout, 
contracting, modification, maintenance for which BLM is responsible, 
and monitoring and evaluating the effectiveness of specific range 
improvement projects.
    (c) During the planning of the range development or range 
improvement programs, the authorized officer shall consult the resource 
advisory council, affected permittees, lessees, and members of the 
interested public.
    35. Section 4120.3-9 is added to read as follows:


Sec. 4120.3-9   Water rights for the purpose of livestock grazing on 
public lands.

    Any right acquired on or after August 21, 1995 to use water on 
public land for the purpose of livestock watering on public land shall 
be acquired, perfected, maintained and administered under the 
substantive and procedural laws of the State within which such land is 
located. To the extent allowed by the law of the State within which the 
land is located, any such water right shall be acquired, perfected, 
maintained, and administered in the name of the United States.
    36. Section 4120.5 is added to read as follows:


Sec. 4120.5   Cooperation.

    37. Section 4120.5-1 is added to read as follows:


Sec. 4120.5-1   Cooperation in management.

    The authorized officer shall, to the extent appropriate, cooperate 
with Federal, State, Indian tribal and local governmental entities, 
institutions, organizations, corporations, associations, and 
individuals to achieve the objectives of this part.
    38. Section 4120.5-2 is added to read as follows:


Sec. 4120.5-2   Cooperation with State, county, and Federal agencies.

    Insofar as the programs and responsibilities of other agencies and 
units of government involve grazing upon the public lands and other 
lands administered by the Bureau of Land Management, or the livestock 
which graze thereon, the Bureau of Land Management will cooperate, to 
the extent consistent with applicable laws of the United States, with 
the involved agencies and government entities. The authorized officer 
shall cooperate with State, county, and Federal agencies in the 
administration of laws and regulations relating to livestock, livestock 
diseases, sanitation, and noxious weeds including--
    (a) State cattle and sheep sanitary or brand boards in control of 
stray and unbranded livestock, to the extent such cooperation does not 
conflict with the Wild Free-Roaming Horse and Burro Act of 1971 (16 
U.S.C. 1331 et seq.); and
    (b) County or other local weed control districts in analyzing 
noxious weed problems and developing control programs for areas of the 
public lands and other lands administered by the Bureau of Land 
Management.

Subpart 4130--Authorizing Grazing Use

    39. Sections 4130.1 through 4130.8 are redesignated as follows:

------------------------------------------------------------------------
                       Old section                          New section 
------------------------------------------------------------------------
4130.1...................................................  4130.1-1     
4130.1-1.................................................  4130.4       
4130.3...................................................  4130.5       
4130.4...................................................  4130.6       
4130.4-1.................................................  4130.6-1     
4130.4-2.................................................  4130.6-2     
4130.4-3.................................................  4130.6-3     
4130.4-4.................................................  4130.6-4     
4130.5...................................................  4130.7       
4130.6...................................................  4130.3       
4130.6-1.................................................  4130.3-1     
4130.6-2.................................................  4130.3-2     
4130.6-3.................................................  4130.3-3     
4130.7...................................................  4130.8       
4130.7-1.................................................  4130.8-1     
4130.7-2.................................................  4130.8-2     
4130.7-3.................................................  4130.8-3     
4130.8...................................................  4130.9       
------------------------------------------------------------------------

    40. Section 4130.1 is added to read as follows:


Sec. 4130.1   Applications.

    41. Newly redesignated Sec. 4130.1-1 is amended by revising the 
heading to read as follows:


Sec. 4130.1-1   Filing applications.

    42. Section 4130.1-2 is amended by revising paragraph (b), removing 
the word ``and'' from paragraph (e) and adding new paragraphs (g) and 
(h) to read as follows:


Sec. 4130.1-2   Conflicting applications.

* * * * *
    (b) Proper use of rangeland resources;
* * * * *
    (g) Demonstrated stewardship by the applicant to improve or 
maintain and protect the rangeland ecosystem; and
    (h) The applicant's and affiliate's history of compliance with the 
terms and conditions of grazing permits and leases of the Bureau of 
Land Management and any other Federal or State agency, including any 
record of suspensions or cancellations of grazing use for violations of 
terms and conditions of agency grazing rules.
    43. Section 4130.2 is amended by redesignating paragraphs (b), (c), 
(d) and (e) as paragraphs (c), (d), (e) and (i), respectively, revising 
paragraphs (a) and newly redesignated paragraph (d) and by adding new 
paragraphs (b), (f), (g), and (h) to read as follows:


Sec. 4130.2   Grazing permits or leases.

    (a) Grazing permits or leases shall be issued to qualified 
applicants to authorize use on the public lands and other lands under 
the administration of the Bureau of Land Management that are designated 
as available for livestock grazing through land use plans. Permits or 
leases shall specify the types and levels of use authorized, including 
livestock grazing, suspended use, and conservation use. These grazing 
permits and leases shall also specify terms and conditions pursuant to 
Secs. 4130.3, 4130.3-1, and 4130.3-2. [[Page 9966]] 
    (b) The authorized officer shall consult, cooperate and coordinate 
with affected permittees or lessees, the State having lands or 
responsible for managing resources within the area, and the interested 
public prior to the issuance or renewal of grazing permits and leases.
* * * * *
    (d) The term of grazing permits or leases authorizing livestock 
grazing on the public lands and other lands under the administration of 
the Bureau of Land Management shall be 10 years unless--
    (1) The land is being considered for disposal;
    (2) The land will be devoted to a public purpose which precludes 
grazing prior to the end of 10 years;
    (3) The term of the base property lease is less than 10 years, in 
which case the term of the Federal permit or lease shall coincide with 
the term of the base property lease; or
    (4) The authorized officer determines that a permit or lease for 
less than 10 years is in the best interest of sound land management.
* * * * *
    (f) The authorized officer will not offer, grant or renew grazing 
permits or leases when the applicants, including permittees or lessees 
seeking renewal, refuse to accept the proposed terms and conditions of 
a permit or lease.
    (g) Temporary nonuse and conservation use may be approved by the 
authorized officer if such use is determined to be in conformance with 
the applicable land use plans, AMP or other activity plans and the 
provisions of subpart 4180 of this part.
    (1) Conservation use may be approved for periods of up to 10 years 
when, in the determination of the authorized officer, the proposed 
nonuse will promote rangeland resource protection or enhancement of 
resource values or uses, including more rapid progress toward resource 
condition objectives; or
    (2) Temporary nonuse for reasons including but not limited to 
financial conditions or annual fluctuations of livestock, may be 
approved on an annual basis for no more than 3 consecutive years. 
Permittees or lessees applying for temporary nonuse shall state the 
reasons supporting nonuse.
    (h) Application for nonrenewable grazing permits and leases under 
Secs. 4110.3-1 and 4130.6-2 for areas for which conservation use has 
been authorized will not be approved. Forage made available as a result 
of temporary nonuse may be made available to qualified applicants under 
Sec. 4130.6-2.
* * * * *
    44. Newly redesignated Sec. 4130.3 is revised to read as follows:


Sec. 4130.3   Terms and conditions.

    Livestock grazing permits and leases shall contain terms and 
conditions determined by the authorized officer to be appropriate to 
achieve management and resource condition objectives for the public 
lands and other lands administered by the Bureau of Land Management, 
and to ensure conformance with the provisions of subpart 4180 of this 
part.
    45. Newly redesignated Sec. 4130.3-1 is amended by revising the 
second sentence of paragraph (a) and adding a new paragraph (c) to read 
as follows:


Sec. 4130.3-1   Mandatory terms and conditions.

    (a) * * * The authorized livestock grazing use shall not exceed the 
livestock carrying capacity of the allotment.
* * * * *
    (c) Permits and leases shall incorporate terms and conditions that 
ensure conformance with subpart 4180 of this part.
    46. Newly redesignated Sec. 4130.3-2 is amended by revising 
paragraph (f), removing the period from the end of paragraph (g) and 
adding an ``; and'' and by adding a new paragraph (h) to read as 
follows:


Sec. 4130.3-2   Other terms and conditions.

* * * * *
    (f) Provision for livestock grazing temporarily to be delayed, 
discontinued or modified to allow for the reproduction, establishment, 
or restoration of vigor of plants, provide for the improvement of 
riparian areas to achieve proper functioning condition or for the 
protection of other rangeland resources and values consistent with 
objectives of applicable land use plans, or to prevent compaction of 
wet soils, such as where delay of spring turnout is required because of 
weather conditions or lack of plant growth;
* * * * *
    (h) A statement disclosing the requirement that permittees or 
lessees shall provide reasonable administrative access across private 
and leased lands to the Bureau of Land Management for the orderly 
management and protection of the public lands.
    47. Newly redesignated Sec. 4130.3-3 is revised to read as follows:


Sec. 4130.3-3   Modification of permits or leases.

    Following consultation, cooperation, and coordination with the 
affected lessees or permittees, the State having lands or responsible 
for managing resources within the area, and the interested public, the 
authorized officer may modify terms and conditions of the permit or 
lease when the active use or related management practices are not 
meeting the land use plan, allotment management plan or other activity 
plan, or management objectives, or is not in conformance with the 
provisions of subpart 4180 of this part. To the extent practical, the 
authorized officer shall provide to affected permittees or lessees, 
States having lands or responsibility for managing resources within the 
affected area, and the interested public an opportunity to review, 
comment and give input during the preparation of reports that evaluate 
monitoring and other data that are used as a basis for making decisions 
to increase or decrease grazing use, or to change the terms and 
conditions of a permit or lease.
    48. Newly redesignated Sec. 4130.4 is amended by revising the 
heading and paragraph (b) to read as follows:


Sec. 4130.4   Approval of changes in grazing use within the terms and 
conditions of permits and leases.

* * * * *
    (b) Changes in grazing use within the terms and conditions of the 
permit or lease may be granted by the authorized officer. Permittees 
and lessees may apply to activate forage in temporary nonuse or 
conservation use or to place forage in temporary nonuse or conservation 
use, and may apply for the use of forage that is temporarily available 
on designated ephemeral or annual ranges.
    49. Newly redesignated Sec. 4130.5 is amended by designating the 
text as paragraph (a), and by adding paragraph (b) to read as follows:


Sec. 4130.5   Free-use grazing permits.

* * * * *
    (b) The authorized officer may also authorize free use under the 
following circumstances:
    (1) 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 and such use is in conformance 
with the requirements of this part;
    (2) The primary purpose of grazing use is for scientific research 
or administrative studies; or
    (3) The primary purpose of grazing use is the control of noxious 
weeds.
    50. Reserved Secs. 4130.5-1 through 4130.5-3 are removed.
    51. In newly redesignated Sec. 4130.6-1, paragraph (a) is revised 
to read as follows: [[Page 9967]] 


Sec. 4130.6-1   Exchange-of-use grazing agreements.

    (a) An exchange-of-use grazing agreement may be issued to an 
applicant who owns or controls lands that are unfenced and intermingled 
with public lands in the same allotment when use under such an 
agreement will be in harmony with the management objectives for the 
allotment and will be compatible with the existing livestock 
operations. The agreements shall contain appropriate terms and 
conditions required under Sec. 4130.3 that ensure the orderly 
administration of the range, including fair and equitable sharing of 
the operation and maintenance of range improvements. The term of an 
exchange-of-use agreement may not exceed the length of the term for any 
leased lands that are offered in exchange-of-use.
* * * * *
    52. Newly redesignated Sec. 4130.6-2 is amended by adding a 
sentence to the end to read as follows:


Sec. 4130.6-2  Nonrenewable grazing permits and leases.

    * * * The authorized officer shall consult, cooperate and 
coordinate with affected permittees or lessees, the State having lands 
or responsible for managing resources within the area, and the 
interested public prior to the issuance of nonrenewable grazing permits 
and leases.
    53. Newly redesignated Sec. 4130.6-3 is revised to read as follows:


Sec. 4130.6-3  Crossing permits.

    A crossing permit may be issued by the authorized officer to any 
applicant showing a need to cross the public land or other land under 
Bureau of Land Management control, or both, with livestock for proper 
and lawful purposes. A temporary use authorization for trailing 
livestock shall contain terms and conditions for the temporary grazing 
use that will occur as deemed necessary by the authorized officer to 
achieve the objectives of this part.
    54. Newly redesignated Sec. 4130.7 is amended by revising paragraph 
(d) and adding a new paragraph (f) to read as follows:


Sec. 4130.7  Ownership and identification of livestock.

* * * * *
    (d) Except as provided in paragraph (f) of this section, where a 
permittee or lessee controls but does not own the livestock which graze 
the public lands, the agreement that gives the permittee or lessee 
control of the livestock by the permittee or lessee shall be filed with 
the authorized officer and approval received prior to any grazing use. 
The document shall describe the livestock and livestock numbers, 
identify the owner of the livestock, contain the terms for the care and 
management of the livestock, specify the duration of the agreement, and 
shall be signed by the parties to the agreement.
* * * * *
    (f) Livestock owned by sons and daughters of grazing permittees and 
lessees may graze public lands included within the permit or lease of 
their parents when all the following conditions exist:
    (1) The sons and daughters are participating in educational or 
youth programs related to animal husbandry, agribusiness or rangeland 
management, or are actively involved in the family ranching operation 
and are establishing a livestock herd with the intent of assuming part 
or all of the family ranch operation.
    (2) The livestock owned by the sons and daughters to be grazed on 
public lands do not comprise greater than 50 percent of the total 
number authorized to occupy public lands under their parent's permit or 
lease.
    (3) The brands or other markings of livestock that are owned by 
sons and daughters are recorded on the parent's permit, lease, or 
grazing application.
    (4) Use by livestock owned by sons and daughters, when considered 
in addition to use by livestock owned or controlled by the permittee or 
lessee, does not exceed authorized livestock use and is consistent with 
other terms and conditions of the permit or lease.
    55. Newly redesignated Sec. 4130.8-1 is amended by revising 
paragraph (c), redesignating paragraphs (d) and (e) as paragraphs (e) 
and (f), respectively, adding a new paragraph (d) and amending newly 
designated paragraph (e) by adding a new sentence after the second 
sentence and a sentence to the end of the paragraph to read as follows:


Sec. 4130.8-1  Payment of fees.

* * * * *
    (c) Except as provided in Sec. 4130.5, the full fee shall be 
charged for each animal unit month of authorized grazing use. For the 
purposes of calculating the fee, an animal unit month is defined as a 
month's use and occupancy of range by 1 cow, bull, steer, heifer, 
horse, burro, mule, 5 sheep, or 5 goats, over the age of 6 months at 
the time of entering the public lands or other lands administered by 
BLM; by any such weaned animals regardless of age; and by such animals 
that will become 12 months of age during the authorized period of use. 
No charge shall be made for animals under 6 months of age, at the time 
of entering public lands or other lands administered by the Bureau of 
Land Management, that are the natural progeny of animals upon which 
fees are paid, provided they will not become 12 months of age during 
the authorized period of use, nor for progeny born during that period. 
In calculating the billing the grazing fee is prorated on a daily basis 
and charges are rounded to reflect the nearest whole number of AUMs.
    (d) A surcharge shall be added to the grazing fee billings for 
authorized grazing of livestock owned by persons other than the 
permittee or lessee except where such use is made by livestock owned by 
sons and daughters of permittees and lessees as provided in 
Sec. 4130.7(f). The surcharge shall be over and above any other fees 
that may be charged for using public land forage. Surcharges shall be 
paid prior to grazing use. The surcharge for authorized pasturing of 
livestock owned by persons other than the permittee or lessee will be 
equal to 35 percent of the difference between the current year's 
Federal grazing fee and the prior year's private grazing land lease 
rate per AUM for the appropriate State as determined by the National 
Agricultural Statistics Service.
    (e) * * * Grazing use that occurs prior to payment of a bill, 
except where specified in an allotment management plan, is unauthorized 
and may be dealt with under subparts 4150 and 4170 of this part. * * * 
Repeated delays in payment of actual use billings or noncompliance with 
the terms and conditions of the allotment management plan and permit or 
lease shall be cause to revoke provisions for after-the-grazing-season 
billing.
* * * * *
    56. The first sentence of newly designated Sec. 4130.8-3 is revised 
to read as follows:


Sec. 4130.8-3  Service charge.

    A service charge may be assessed for each crossing permit, transfer 
of grazing preference, application solely for nonuse or conservation 
use, and each replacement or supplemental billing notice except for 
actions initiated by the authorized officer. * * *

Subpart 4140--Prohibited Acts

    57. Section 4140.1 is amended by revising the introductory text of 
paragraph (a), paragraphs (a)(2), (a)(6), the introductory text of 
paragraph (b), paragraphs (b)(1)(i), (b)(5), (b)(7), (b)(9), and 
(b)(10); and by adding paragraphs (b)(11), and (c) to read as follows: 
[[Page 9968]] 


Sec. 4140.1  Acts prohibited on public lands.

    (a) Grazing permittees or lessees performing the following 
prohibited acts may be subject to civil penalties under Sec. 4170.1:
* * * * *
    (2) Failing to make substantial grazing use as authorized for 2 
consecutive fee years, but not including approved temporary nonuse, 
conservation use, or use temporarily suspended by the authorized 
officer.
* * * * *
    (6) Unauthorized leasing or subleasing as defined in this part.
    (b) Persons performing the following prohibited acts related to 
rangelands to civil and criminal penalties set forth at Secs. 4170.1 
and 4170.2:
    (1) * * *
    (i) Without a permit or lease, and an annual grazing authorization. 
For the purposes of this paragraph, grazing bills for which payment has 
not been received do not constitute grazing authorization.
* * * * *
    (5) Molesting, harassing, injuring, poisoning, or causing death of 
livestock authorized to graze on these lands and removing authorized 
livestock without the owner's consent;
* * * * *
    (7) Interfering with lawful uses or users including obstructing 
free transit through or over public lands by force, threat, 
intimidation, signs, barrier or locked gates;
* * * * *
    (9) Failing to pay any fee required by the authorized officer 
pursuant to this part, or making payment for grazing use of public 
lands with insufficiently funded checks on a repeated and willful 
basis;
    (10) Failing to reclaim and repair any lands, property, or 
resources when required by the authorized officer;
    (11) Failing to reclose any gate or other entry during periods of 
livestock use.
    (c) Performance of an act listed in paragraphs (c)(1), (c)(2) or 
(c)(3) of this section where public land administered by the Bureau of 
Land Management is involved or affected, the violation is related to 
grazing use authorized by a permit or lease issued by the Bureau of 
Land Management, 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, constitutes a prohibited act that may be subject to the 
civil penalties set forth at Sec. 4170.1-1.
    (1) Violation of Federal or State laws or regulations pertaining to 
the:
    (i) Placement of poisonous bait or hazardous devices designed for 
the destruction of wildlife;
    (ii) Application or storage of pesticides, herbicides, or other 
hazardous materials;
    (iii) Alteration or destruction of natural stream courses without 
authorization;
    (iv) Pollution of water sources;
    (v) Illegal take, destruction or harassment, or aiding and abetting 
in the illegal take, destruction or harassment of fish and wildlife 
resources; and
    (vi) Illegal removal or destruction of archeological or cultural 
resources;
    (2) Violation of the Bald Eagle Protection Act (16 U.S.C. 668 et 
seq.), Endangered Species Act (16 U.S.C. 1531 et seq.), or any 
provision of part 4700 of this chapter concerning the protection and 
management of wild free-roaming horses and burros; or
    (3) Violation of State livestock laws or regulations relating to 
the branding of livestock; breed, grade, and number of bulls; health 
and sanitation requirements; and violating State, county, or local laws 
regarding the stray of livestock from permitted public land grazing 
areas onto areas that have been formally closed to open range grazing.

Subpart 4150--Unauthorized Grazing Use

    58. Section 4150.1 is amended by designating the second sentence as 
paragraph (b) and adding a new paragraph (a) following the undesignated 
first sentence to read as follows:


Sec. 4150.1  Violations.

* * * * *
    (a) The authorized officer shall determine whether a violation is 
nonwillful, willful, or repeated willful.
* * * * *
    59. Section 4150.2 is amended by redesignating paragraph (b) as 
paragraph (c), and adding new paragraphs (b) and (d) to read as 
follows:


Sec. 4150.2  Notice and order to remove.

* * * * *
    (b) Whenever a violation has been determined to be nonwillful and 
incidental, the authorized officer shall notify the alleged violator 
that the violation must be corrected, and how it can be settled, based 
upon the discretion of the authorized officer.
* * * * *
    (d) The authorized officer may temporarily close areas to grazing 
by specified kinds or class of livestock for a period not to exceed 12 
months when necessary to abate unauthorized grazing use. Such notices 
of closure may be issued as final decisions effective upon issuance or 
on the date specified in the decision and shall remain in effect 
pending the decision on appeal unless a stay is granted by the Office 
of Hearings and Appeals in accordance with 43 CFR 4.21.
    60. Section 4150.3 is amended by removing the quotation mark, 
semicolon, and the word ``and'' at the end of paragraph (c), and 
removing the first sentence of the introductory text, and revising the 
sentence following the new first sentence of the introductory text, and 
revising paragraph (a) to read as follows:


Sec. 4150.3  Settlement.

    * * * The amount due for settlement shall include the value of 
forage consumed as determined in accordance with paragraph (a), (b), or 
(c) of this section. * * *
    (a) For nonwillful violations: The value of forage consumed as 
determined by the average monthly rate per AUM for pasturing livestock 
on privately owned land (excluding irrigated land) in each State as 
published annually by the Department of Agriculture. The authorized 
officer may approve nonmonetary settlement of unauthorized use only 
when the authorized officer determines that each of the following 
conditions is satisfied:
    (1) Evidence shows that the unauthorized use occurred through no 
fault of the livestock operator;
    (2) The forage use is insignificant;
    (3) The public lands have not been damaged; and
    (4) Nonmonetary settlement is in the best interest of the United 
States.
* * * * *

Subpart 4160--Administrative Remedies

    61. Section 4160.1 is revised to read as follows:


Sec. 4160.1  Proposed decisions.

    (a) Proposed decisions shall be served on any affected applicant, 
permittee or lessee, and any agent and lien holder of record, who is 
affected by the proposed actions, terms or conditions, or modifications 
relating to applications, permits and agreements (including range 
improvement permits) or leases, by certified mail or personal delivery. 
Copies of proposed decisions shall also be sent to the interested 
public.
    (b) Proposed decisions shall state the reasons for the action and 
shall [[Page 9969]] reference the pertinent terms, conditions and the 
provisions of applicable regulations. As appropriate, decisions shall 
state the alleged violations of specific terms and conditions and 
provisions of these regulations alleged to have been violated, and 
shall state the amount due under Secs. 4130.8 and 4150.3 and the action 
to be taken under Sec. 4170.1.
    (c) The authorized officer may elect not to issue a proposed 
decision prior to a final decision where the authorized officer has 
made a determination in accordance with Sec. 4110.3-3(b) or 
Sec. 4150.2(d).


Secs. 4160.1-1 and 4160.1-2  [Removed]

    62. Sections 4160.1-1 and 4160.1-2 are removed.
    63. Section 4160.3 is amended by removing from paragraph (b) the 
words ``on other affected interests'' and adding in their place the 
words ``the interested public,'' revising paragraph (a), and paragraph 
(c), and adding new paragraphs (d), (e), and (f) to read as follows:


Sec. 4160.3  Final decisions.

    (a) In the absence of a protest, the proposed decision will become 
the final decision of the authorized officer without further notice 
unless otherwise provided in the proposed decision.
* * * * *
    (c) A period of 30 days following receipt of the final decision, or 
30 days after the date the proposed decision becomes final as provided 
in paragraph (a) of this section, is provided for filing an appeal and 
petition for stay of the decision pending final determination on 
appeal. A decision will not be effective during the 30-day appeal 
period, except as provided in paragraph (f) of this section. See 
Secs. 4.21 and 4.470 of this title for general provisions of the appeal 
and stay processes.
    (d) When the Office of Hearings and Appeals stays a final decision 
of the authorized officer regarding an application for grazing 
authorization, an applicant who was granted grazing use in the 
preceding year may continue at that level of authorized grazing use 
during the time the decision is stayed, except where grazing use in the 
preceding year was authorized on a temporary basis under Sec. 4110.3-
1(a). Where an applicant had no authorized grazing use during the 
previous year, or the application is for designated ephemeral or annual 
rangeland grazing use, the authorized grazing use shall be consistent 
with the final decision pending the Office of Hearings and Appeals 
final determination on the appeal.
    (e) When the Office of Hearings and Appeals stays a final decision 
of the authorized officer to change the authorized grazing use, the 
grazing use authorized to the permittee or lessee during the time that 
the decision is stayed shall not exceed the permittee's or lessee's 
authorized use in the last year during which any use was authorized.
    (f) Notwithstanding the provisions of Sec. 4.21(a) of this title 
pertaining to the period during which a final decision will not be in 
effect, the authorized officer may provide that the final decision 
shall be effective upon issuance or on a date established in the 
decision and shall remain in effect pending the decision on appeal 
unless a stay is granted by the Office of Hearings and Appeals when the 
authorized officer has made a determination in accordance with 
Sec. 4110.3-3(b) or Sec. 4150.2(d). Nothing in this section shall 
affect the authority of the Director of the Office of Hearings and 
Appeals or the Interior Board of Land Appeals to place decisions in 
full force and effect as provided in Sec. 4.21(a)(1) of this title.
    64. Section 4160.4 is revised to read as follows:


Sec. 4160.4  Appeals.

    Any person whose interest is adversely affected by a final decision 
of the authorized officer may appeal the decision for the purpose of a 
hearing before an administrative law judge by following the 
requirements set out in Sec. 4.470 of this title. As stated in that 
part, the decision must be filed within 30 days after receipt of the 
final decision or within 30 days after the date the proposed decision 
becomes final as provided in Sec. 4160.3(a). Appeals and petitions for 
a stay of the decision shall be filed at the office of the authorized 
officer. The authorized officer shall promptly transmit the appeal and 
petition for stay and the accompanying administrative record to ensure 
their timely arrival at the Office of Hearings and Appeals.

Subpart 4170--Penalties

    65. Section 4170.1-1 is amended by revising the first sentence of 
paragraph (d) to read as follows:


Sec. 4170.1-1  Penalty for violations.

* * * * *
    (d) Any person found to have violated the provisions of 
Sec. 4140.1(a)(6) after August 21, 1995, shall be required to pay twice 
the value of forage consumed as determined by the average monthly rate 
per AUM for pasturing livestock on privately owned land (excluding 
irrigated land) in each State as supplied annually by the National 
Agricultural Statistics Service, and all reasonable expenses incurred 
by the United States in detecting, investigating, and resolving 
violations. * * *
    66. Section 4170.1-2 is revised to read as follows:


Sec. 4170.1-2  Failure To use.

    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, coordination, 
and cooperation with the permittee or lessee and any lienholder of 
record, may cancel whatever amount of permitted use the permittee or 
lessee has failed to use.


Sec. 4170.1-3  [Removed]

    67. Section 4170.1-3 is removed.
    68. Section 4170.2-1 is revised to read as follows:


Sec. 4170.2-1  Penal provisions under the Taylor Grazing Act.

    Under section 2 of the Act 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.
    69. Section 4170.2-2 is revised to read as follows:


Sec. 4170.2-2  Penal provisions under the Federal Land Policy and 
Management Act.

    Under section 303(a) of the Federal Land Policy and Management Act 
of 1976 (43 U.S.C. 1701 et seq.), any person who knowingly and 
willfully commits an act prohibited under Sec. 4140.1(b) or who 
knowingly and willfully violates approved special rules and regulations 
may be brought before a designated U.S. magistrate and is punishable by 
a fine in accordance with the applicable provisions of Title 18 of the 
United States Code, or imprisonment for no more than 12 months, or 
both.
    70. Subpart 4180 is added to read as follows:
Subpart 4180--Fundamentals of Rangeland Health and Standards and 
Guidelines for Grazing Administration
Sec.
4180.1  Fundamentals of rangeland health.
4180.2  Standards and guidelines for grazing administration. 
[[Page 9970]] 

Subpart 4180--Fundamentals of Rangeland Health and Standards and 
Guidelines for Grazing Administration


Sec. 4180.1  Fundamentals of rangeland health.

    The authorized officer shall take appropriate action under subparts 
4110, 4120, 4130, and 4160 of this part as soon as practicable but not 
later than the start of the next grazing year upon determining that 
existing grazing management needs to be modified to ensure that the 
following conditions exist.
    (a) Watersheds are in, or are making significant progress toward, 
properly functioning physical condition, including their upland, 
riparian-wetland, and aquatic components; soil and plant conditions 
support infiltration, soil moisture storage, and the release of water 
that are in balance with climate and landform and maintain or improve 
water quality, water quantity, and timing and duration of flow.
    (b) Ecological processes, including the hydrologic cycle, nutrient 
cycle, and energy flow, are maintained, or there is significant 
progress toward their attainment, in order to support healthy biotic 
populations and communities.
    (c) Water quality complies with State water quality standards and 
achieves, or is making significant progress toward achieving, 
established BLM management objectives such as meeting wildlife needs.
    (d) Habitats are, or are making significant progress toward being, 
restored or maintained for Federal threatened and endangered species, 
Federal Proposed, Category 1 and 2 Federal candidate and other special 
status species.


Sec. 4180.2  Standards and guidelines for grazing administration.

    (a) The Bureau of Land Management State Director, in consultation 
with the affected resource advisory councils where they exist, will 
identify the geographical area for which standards and guidelines are 
developed. Standards and guidelines will be developed for an entire 
state, or an area encompassing portions of more than 1 state, unless 
the Bureau of Land Management State Director, in consultation with the 
resource advisory councils, determines that the characteristics of an 
area are unique, and the rangelands within the area could not be 
adequately protected using standards and guidelines developed on a 
broader geographical scale.
    (b) The Bureau of Land Management State Director, in consultation 
with affected Bureau of Land Management resource advisory councils, 
shall develop and amend State or regional standards and guidelines. The 
Bureau of Land Management State Director will also coordinate with 
Indian tribes, other State and Federal land management agencies 
responsible for the management of lands and resources within the region 
or area under consideration, and the public in the development of State 
or regional standards and guidelines. Standards and guidelines 
developed by the Bureau of Land Management State Director must provide 
for conformance with the fundamentals of Sec. 4180.1. State or regional 
standards or guidelines developed by the Bureau of Land Management 
State Director may not be implemented prior to their approval by the 
Secretary. Standards and guidelines made effective under paragraph (f) 
of this section may be modified by the Bureau of Land Management State 
Director, with approval of the Secretary, to address local ecosystems 
and management practices.
    (c) The authorized officer shall take appropriate action as soon as 
practicable but not later than the start of the next grazing year upon 
determining that existing grazing management practices or levels of 
grazing use on public lands are significant factors in failing to 
achieve the standards and conform with the guidelines that are made 
effective under this section. Appropriate action means implementing 
actions pursuant to subparts 4110, 4120, 4130, and 4160 of this part 
that will result in significant progress toward fulfillment of the 
standards and significant progress toward conformance with the 
guidelines. Practices and activities subject to standards and 
guidelines include the development of grazing-related portions of 
activity plans, establishment of terms and conditions of permits, 
leases and other grazing authorizations, and range improvement 
activities such as vegetation manipulation, fence construction and 
development of water.
    (d) At a minimum, State or regional standards developed under 
paragraphs (a) and (b) of this section must address the following:
    (1) Watershed function;
    (2) Nutrient cycling and energy flow;
    (3) Water quality;
    (4) Habitat for endangered, threatened, proposed, Candidate 1 or 2, 
or special status species; and
    (5) Habitat quality for native plant and animal populations and 
communities.
    (e) At a minimum, State or regional guidelines developed under 
paragraphs (a) and (b) of this section must address the following:
    (1) Maintaining or promoting adequate amounts of vegetative ground 
cover, including standing plant material and litter, to support 
infiltration, maintain soil moisture storage, and stabilize soils;
    (2) Maintaining or promoting subsurface soil conditions that 
support permeability rates appropriate to climate and soils;
    (3) Maintaining, improving or restoring riparian-wetland functions 
including energy dissipation, sediment capture, groundwater recharge, 
and stream bank stability;
    (4) Maintaining or promoting stream channel morphology (e.g., 
gradient, width/depth ratio, channel roughness and sinuosity) and 
functions appropriate to climate and landform;
    (5) Maintaining or promoting the appropriate kinds and amounts of 
soil organisms, plants and animals to support the hydrologic cycle, 
nutrient cycle, and energy flow;
    (6) Promoting the opportunity for seedling establishment of 
appropriate plant species when climatic conditions and space allow;
    (7) Maintaining, restoring or enhancing water quality to meet 
management objectives, such as meeting wildlife needs;
    (8) Restoring, maintaining or enhancing habitats to assist in the 
recovery of Federal threatened and endangered species;
    (9) Restoring, maintaining or enhancing habitats of Federal 
Proposed, Category 1 and 2 Federal candidate, and other special status 
species to promote their conservation;
    (10) Maintaining or promoting the physical and biological 
conditions to sustain native populations and communities;
    (11) Emphasizing native species in the support of ecological 
function; and
    (12) Incorporating the use of non-native plant species only in 
those situations in which native species are not available in 
sufficient quantities or are incapable of maintaining or achieving 
properly functioning conditions and biological health;
    (f) In the event that State or regional standards and guidelines 
are not completed and in effect by February 12, 1997, and until such 
time as State or regional standards and guidelines are developed and in 
effect, the following standards provided in paragraph (f)(1) of this 
section and guidelines provided in paragraph (f)(2) of this section 
shall apply and will be implemented in accordance with paragraph (c) of 
this section. [[Page 9971]] 
    (1) Fallback standards. (i) Upland soils exhibit infiltration and 
permeability rates that are appropriate to soil type, climate and 
landform.
    (ii) Riparian-wetland areas are in properly functioning condition.
    (iii) Stream channel morphology (including but not limited to 
gradient, width/depth ratio, channel roughness and sinuosity) and 
functions are appropriate for the climate and landform.
    (iv) Healthy, productive and diverse populations of native species 
exist and are maintained.
    (2) Fallback guidelines. (i) Management practices maintain or 
promote adequate amounts of ground cover to support infiltration, 
maintain soil moisture storage, and stabilize soils;
    (ii) Management practices maintain or promote soil conditions that 
support permeability rates that are appropriate to climate and soils;
    (iii) Management practices maintain or promote sufficient residual 
vegetation to maintain, improve or restore riparian-wetland functions 
of energy dissipation, sediment capture, groundwater recharge and 
stream bank stability;
    (iv) Management practices maintain or promote stream channel 
morphology (e.g., gradient, width/depth ratio, channel roughness and 
sinuosity) and functions that are appropriate to climate and landform;
    (v) Management practices maintain or promote the appropriate kinds 
and amounts of soil organisms, plants and animals to support the 
hydrologic cycle, nutrient cycle, and energy flow;
    (vi) Management practices maintain or promote the physical and 
biological conditions necessary to sustain native populations and 
communities;
    (vii) Desired species are being allowed to complete seed 
dissemination in 1 out of every 3 years (Management actions will 
promote the opportunity for seedling establishment when climatic 
conditions and space allow.);
    (viii) Conservation of Federal threatened or endangered, Proposed, 
Category 1 and 2 candidate, and other special status species is 
promoted by the restoration and maintenance of their habitats;
    (ix) Native species are emphasized in the support of ecological 
function;
    (x) Non-native plant species are used only in those situations in 
which native species are not readily available in sufficient quantities 
or are incapable of maintaining or achieving properly functioning 
conditions and biological health;
    (xi) Periods of rest from disturbance or livestock use during times 
of critical plant growth or regrowth are provided when needed to 
achieve healthy, properly functioning conditions (The timing and 
duration of use periods shall be determined by the authorized 
officer.);
    (xii) Continuous, season-long livestock use is allowed to occur 
only when it has been demonstrated to be consistent with achieving 
healthy, properly functioning ecosystems;
    (xiii) Facilities are located away from riparian-wetland areas 
wherever they conflict with achieving or maintaining riparian-wetland 
function;
    (xiv) The development of springs and seeps or other projects 
affecting water and associated resources shall be designed to protect 
the ecological functions and processes of those sites; and
    (xv) Grazing on designated ephemeral (annual and perennial) 
rangeland is allowed to occur only if reliable estimates of production 
have been made, an identified level of annual growth or residue to 
remain on site at the end of the grazing season has been established, 
and adverse effects on perennial species are avoided.
Bruce Babbitt,
Secretary of the Interior.
[FR Doc. 95-3866 Filed 2-21-95; 8:45 am]
BILLING CODE 4310-84-P