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

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.

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
Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 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 sectionby-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
9896 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations

Department’s program to improve

management of the public rangelands:

—A RAC of 10–15 members, as required

by § 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 § 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, shortterm technical issues. In addition to

requiring membership to be balanced

among the commodity, environmental

and local interest groups specified in

§ 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 § 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
Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 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 § 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
9898 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations

place them in effect immediately when

it is necessary to protect rangeland

resources from damage in situations

described under § 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

§ 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 §§ 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 § 4170.1–3, as

proposed, have been moved to a new

paragraph in § 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 § 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 § 4170 to § 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

§ 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
Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 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 § 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 incentivebased fee was not completed. Multipleyear 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
9900 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations

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 twoyear 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,
Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 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 § 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
9902 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations

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 § 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

§ 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 § 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 § 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
Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 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 § 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 onehalf is to be allocated by the Secretary

on a priority basis. All range

improvement funds will be used for onthe-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 nonFederal 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
9904 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations

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 § 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

§ 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-grazingseason 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, § 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
Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 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

§ 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

§ 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 § 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

§ 4110.3–3(b), or to facilitate abatement

of unauthorized use by closing an area

temporarily to grazing use under

§ 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 § 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 § 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 § 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.
9906 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations

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

§ 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

§ 4180.2(d). Similarly, the fallback

guidelines include grazing management

practices while the guiding principles of

§ 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-bySection 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,
Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 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
9908 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations

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, § 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. § 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 (§ 4110.3),

decrease permitted use (§ 4110.3–2),

implement a reduction in permitted use

(§ 4110.3–3), decrease land acreage

(§ 4110.4–2), approve an AMP

(§ 4120.2), or approve a cooperative

range improvement agreement

(§ 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
Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 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

§ 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 §§ 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

§§ 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 §§ 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 § 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 § 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

§§ 1784.0–5, 1784.2–1, 1784.2–2,

1784.3, 1784.5–1, and 1784.5–2. These
9910 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations

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 § 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

§ 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 § 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
Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 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 § 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 §§ 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

§ 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
9912 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations

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. § 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 §§ 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 §§ 1784.6–2 and 6–

3. A number of comments were received

concerning §§ 1784.6–4 and 6–5.

Comments directed to § 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
Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 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

§§ 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 §§ 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

§ 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 publicat-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

§ 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
9914 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations

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 makeup 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

§ 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

§ 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 (§ 4110.2–4), increasing

permitted use (§ 4110.3–1),

implementing reductions in permitted

use (§ 4110.3–3), development of AMPs

(§ 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
Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 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 § 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 longterm 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 § 1784.2–1,

Composition. The Department believes

that self-nomination is an appropriate
9916 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations

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 § 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 § 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 § 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 § 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 § 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 § 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

§ 1784.2–1.
Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 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 § 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 § 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 § 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
9918 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations

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

§ 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 § 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 § 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

§ 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

§ 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

§ 1784.6–1(c) above, and will include at
Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 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 factfinding 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 § 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

§ 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

§§ 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

§ 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 §§ 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 § 1784.6–2.
9920 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations

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
Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 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 § 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
9922 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations

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 § 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
Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 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
9924 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations

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 § 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 § 4130.8 (§ 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.’’
Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 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

§ 4100.0–5 Definitions and § 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
9926 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations

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-bycase 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
Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 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 § 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
9928 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations

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 § 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

§ 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 § 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 § 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
Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 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 § 4110.2 is not incorrect, more

specific references to the provisions

which the transferee must meet, those in

§§ 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 § 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

§ 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 § 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.
9930 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations

Decisions on who should bear the

expense of constructing fences made

necessary by adjustments in allotment

boundaries will be made on a case-bycase 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 § 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 §§ 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 § 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
Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 9931

final rule makes this change. For further

discussion, see § 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 § 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

§ 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 § 4100.0–5. It

would also have provided, by reference

to § 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
9932 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations

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 § 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 § 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
Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 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

§ 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, § 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
9934 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations

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 grazingrelated 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 §§ 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 § 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

§ 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 § 4120.3–5, Assignment of

range improvements, and § 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
Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 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 § 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 §§ 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 § 4120.3–

2, thus consolidating all provisions

regarding permanent improvements in

that section.

The existing language of §§ 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 § 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).
9936 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations

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 livestockoriented 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
Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 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 coapplicant. 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 nonFederal 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 § 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
9938 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations

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:

Old CFR section Final rule

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

§ 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 § 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
Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 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

§ 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 § 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
9940 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations

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 § 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 §§ 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 § 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

§ 4130.4, and would therefore be subject

of NEPA analysis, consultation

requirements, and the right of protest

and appeal.
Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 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

§ 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 sitespecific 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

§ 4130.3. Levels of permitted use are

subject to adjustment, depending in part

on resource condition concerns, in

accordance with § 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 § 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 § 4110.3 and also at

§ 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 § 4110.3. The methods to

be used are more appropriately dealt

with under subpart 4110 rather than

being included as a parenthetical

statement in § 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 §§ 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
9942 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations

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 § 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
Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 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 dayto-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,

§§ 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

§ 4130.2) and at any time the terms and

conditions of the permit or lease are

modified (see § 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 shortterm permits or leases, constitute direct

Federal actions that are subject to NEPA

analysis as well as the provisions of

§ 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 abovenormal precipitation would require the

issuance of a separate nonrenewable

permit under § 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 § 4130.7–1, however it is

moved to the newly redesignated

§ 4130.5 to consolidate provisions

concerning free-use permits. This

section would have provided for freeuse 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-theground 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
9944 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations

to adopt the final rule language as

proposed with the exception of its

relocation from the proposed §§ 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
Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 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.
9946 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations

Other changes proposed in § 4130.7–

1 also are adopted in this final rule. In

the proposed rule, these changes would

have amended § 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 § 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 shortterm 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 § 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, § 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 § 4140.1,

prohibited acts, and subpart 4170, the

penalties section of the grazing rules.

Section 4140.1 provides a list of

prohibited acts. Specifically, § 4140.1(a)

lists prohibited acts for which

permittees and lessees might be subject

to civil penalties; § 4140.1(b) lists

prohibited acts for which all persons

using the rangelands might be subject to

civil and criminal penalties, and new

§ 4140.1(c), which incorporates what

was proposed as § 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,
Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 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

§ 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

§ 4140.1 the list of conditions formerly

included under § 4170.1–3. Under

§ 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 §§ 4140.1

and 4170.1–3 into final § 4140.1

improves the clarity of the final rules by

eliminating cumbersome crossreferences.

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 § 4140.1(a)(5).

Nothing in this rule is intended to

prevent legitimate use of gates to move

and control livestock. The provision of

§ 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

§ 4130.2. Failure to make substantial use

is discussed at § 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 § 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
9948 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations

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, § 4140.1 of the proposed

rule is adopted as final with the

exception of adding the conditions

formerly provided at § 4170.1–3 to

§ 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 § 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, § 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

§ 4150.2 as proposed except for minor

changes to eliminate redundancy

between § 4150.2 and § 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
Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 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 § 4110.3–

3(b) of this part is necessary to stop

resource damage, or when action is

taken under § 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 § 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 § 4110.3–3(b) or § 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

§ 4110.3–3(b) or § 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 §§ 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 § 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
9950 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations

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

§ 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

§§ 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 § 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 §§ 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

§§ 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 § 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 § 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
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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

§ 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 publiclyowned 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
9952 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations

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

§ 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 § 4170.1–1 violations of

Federal or State regulations or laws that

are listed as prohibited acts under

§ 4140.1 and that pertain to predator

animal and pest control, wild freeroaming 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

§ 4140. The types of violations that may

result in the withholding, suspension or

cancellation of a permit or lease under

§ 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 § 4140.1(c)

for clarity.

Commenters on this section were

strongly divided on its provisions. Some

asserted, as they had on § 4140.1 of the

proposal, that inclusion of other statutes
Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 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 § 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 § 4170.1–3, as

proposed. However, in response to

comments on §§ 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 § 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 § 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 § 4170.2–1 regarding willful

commission of acts prohibited under

§ 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
9954 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations

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 grazingrelated 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
Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 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 seasonlong 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

§ 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

§ 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 § 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

§ 4180.1, and the standards and

guidelines to be made effective under

§ 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
9956 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations

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 § 4180.1 and the

guiding principles of § 4180.2, the longterm 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 § 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 Ahorizon requirement would not serve as

a useful standard on some BLMadministered 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-bysection analysis for § 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 §§ 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 § 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
Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 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:
9958 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations

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:

§ 4.477 Effect of decision suspended

during appeal.

Notwithstanding the provisions of

§ 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 § 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

§ 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:

§ 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:

§ 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:

§ 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.

§ 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:

§ 1784.6 Membership and functions of

resource advisory councils and sub-groups

.

11. Section 1784.6–1 is revised to read

as follows:

§ 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 longrange 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—
Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 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-atlarge.

(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

§ 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 § 1784.6–2 is added to read

as follows:

§ 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

§ 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

§ 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-atlarge, 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.
9960 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations

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

§ 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

§ 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 § 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]

§ 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:

§ 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
Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 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:

§ 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 § 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 § 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.
9962 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations

17. Section 4100.0–7 is revised to read

as follows:

§ 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 § 4100.0–9 is added to read

as follows:

§ 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:

§ 4110.1 Mandatory qualifications.

(a) Except as provided under

§§ 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:

§ 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 § 4110.1.

21. Section 4110.2–1 is amended by

revising paragraphs (a)(1), (a)(2) and (c)

to read as follows:

§ 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:
Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 9963

§ 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 § 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:

§ 4110.2–3 Transfer of grazing preference.

(a) * * *

(1) The transferee shall meet all

qualifications and requirements of

§§ 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:

§ 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:

§ 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:

§ 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:

§ 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:

§ 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 § 4110.3–2 shall be issued

as proposed decisions pursuant to

§ 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:

§ 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
9964 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations

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:

§ 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 §§ 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:

§ 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:

§ 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 §§ 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:

§ 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
Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 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:

§ 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:

§ 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:

§ 4120.5 Cooperation.

37. Section 4120.5–1 is added to read

as follows:

§ 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:

§ 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

Old section New section

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:

§ 4130.1 Applications.

41. Newly redesignated § 4130.1–1 is

amended by revising the heading to read

as follows:

§ 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:

§ 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:

§ 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 §§ 4130.3,

4130.3–1, and 4130.3–2.
9966 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations

(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

§§ 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 § 4130.6–2.

* * * * *

44. Newly redesignated § 4130.3 is

revised to read as follows:

§ 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 § 4130.3–1 is

amended by revising the second

sentence of paragraph (a) and adding a

new paragraph (c) to read as follows:

§ 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 § 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:

§ 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 § 4130.3–3 is

revised to read as follows:

§ 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 § 4130.4 is

amended by revising the heading and

paragraph (b) to read as follows:

§ 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 § 4130.5 is

amended by designating the text as

paragraph (a), and by adding paragraph

(b) to read as follows:

§ 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 §§ 4130.5–1 through

4130.5–3 are removed.

51. In newly redesignated § 4130.6–1,

paragraph (a) is revised to read as

follows:
Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 9967

§ 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 § 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 § 4130.6–2 is

amended by adding a sentence to the

end to read as follows:

§ 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 § 4130.6–3 is

revised to read as follows:

§ 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 § 4130.7 is

amended by revising paragraph (d) and

adding a new paragraph (f) to read as

follows:

§ 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 § 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:

§ 4130.8–1 Payment of fees.

* * * * *

(c) Except as provided in § 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

§ 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-thegrazing-season billing.

* * * * *

56. The first sentence of newly

designated § 4130.8–3 is revised to read

as follows:

§ 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:
9968 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations

§ 4140.1 Acts prohibited on public lands.

(a) Grazing permittees or lessees

performing the following prohibited acts

may be subject to civil penalties under

§ 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

§§ 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 § 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:

§ 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:

§ 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:

§ 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:

§ 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
Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 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 §§ 4130.8 and 4150.3 and the

action to be taken under § 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 § 4110.3–3(b) or

§ 4150.2(d).

§§ 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:

§ 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 §§ 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 § 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

§ 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

§ 4110.3–3(b) or § 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

§ 4.21(a)(1) of this title.

64. Section 4160.4 is revised to read

as follows:

§ 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

§ 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 § 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:

§ 4170.1–1 Penalty for violations.

* * * * *

(d) Any person found to have violated

the provisions of § 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:

§ 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.

§ 4170.1–3 [Removed]

67. Section 4170.1–3 is removed.

68. Section 4170.2–1 is revised to read

as follows:

§ 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 § 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:

§ 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

§ 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.
9970 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations

Subpart 4180—Fundamentals of

Rangeland Health and Standards and

Guidelines for Grazing Administration

§ 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, riparianwetland, 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.

§ 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 § 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 grazingrelated 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 nonnative 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.
Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 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 riparianwetland 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