[Federal Register: July 12, 2006 (Volume 71, Number 133)]
[Rules and Regulations]
[Page 39401-39509]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12jy06-17]
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Part II
Department of the Interior
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Bureau of Land Management
43 CFR Part 4100
Grazing Administration--Exclusive of Alaska; Final Rule
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DEPARTMENT OF THE INTERIOR
Bureau of Land Management
43 CFR Part 4100
[WO-220-1020-24 1A]
RIN 1004-AD42
Grazing Administration--Exclusive of Alaska
AGENCY: Bureau of Land Management, Interior.
ACTION: Final rule.
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SUMMARY: The Bureau of Land Management (BLM) amends its regulations
concerning how BLM administers livestock grazing on public lands. The
changes ensure that BLM documents its consideration of the social,
cultural, environmental, and economic consequences of grazing changes;
provide that changes in grazing use will be phased in under certain
circumstances; allow permittees, lessees, and others to share title to
range improvements with BLM in certain circumstances; make clear how
BLM will authorize grazing if a BLM decision affecting a grazing permit
is stayed pending administrative appeal; remove provisions in the
present regulations concerning conservation use grazing permits; ensure
adequate time for developing and successfully implementing an
appropriate management action when BLM finds that rangelands do not
meet standards and guidelines for rangeland health and that authorized
grazing is a significant factor in not achieving one or more land
health standards or not conforming with guidelines for grazing
administration; and revise some administrative service charges. We
intend these changes to contribute to improving working relationships
with permittees and lessees, protecting the health of the rangelands
and increasing administrative efficiency and effectiveness.
EFFECTIVE DATE: August 11, 2006.
ADDRESSES: You may send inquiries or suggestions to Director (220),
Bureau of Land Management, Room 204 LS, Eastern States Office, 7450
Boston Boulevard, Springfield, Virginia 22153.
FOR FURTHER INFORMATION CONTACT: Ken Visser, Rangeland Management
Specialist, Rangeland, Soils, Water and Air Group, (775) 861-6492, or
Ted Hudson (202) 452-5042 of the Regulatory Affairs Group. Individuals
who use a telecommunications device for the deaf (TDD) may contact them
individually through the Federal Information Relay Service at 1-800-
877-8339, 24 hours a day, seven days a week.
SUPPLEMENTARY INFORMATION:
I. Background
A. History
B. Why We Are Amending the Regulations
C. Rules of Construction: Words and Phrases
II. Changes Made Since the Proposed Rule
III. Record of Decision Under the National Environmental Policy Act
A. Decisions
B. Alternatives Considered
C. Environmentally Preferable Alternative
D. Decision Rationale
1. Analysis and Documentation of Social, Economic, and Cultural
Effects
2. Phase-in of Changes in Active Use of More Than 10 Percent
3. Sharing Title to Permanent Range Improvements
4. Cooperation With Tribal, State, County, and Local Government-
Established Grazing Boards
5. Removal of Temporary Nonuse Limit
6. Requiring Assessments and Monitoring for Determinations on
Standards and Guidelines
7. Time Frame for Taking Action
8. Conservation Use
9. Definitions of Preference, Active Use, and Removal of
Permitted Use
10. Interested Public
11. Water Rights
12. Satisfactory Performance of Applicants
13. Temporary Changes in Grazing Use Within the Terms and
Conditions of a Permit or Lease, Including Temporary Nonuse
14. Service Charges
15. Prohibited Acts
16. Decisions on Ephemeral or Annual Rangeland Grazing Use and
Nonrenewable Permits
17. Effect on Grazing Use When an Administrative Stay Has Been
Granted on an Appeal of a Decision Associated With Changes to a
Permit or Lease or Grazing Preference Transfers
18. Biological Assessments and Evaluations Are Not Decisions and
Therefore Not Subject To Protest or Appeal
IV. Response to General Comments
A. The Regulatory Process
B. General Support
C. General Opposition
D. Purpose and Need for Rulemaking
E. Environmental Effects of the Rule
F. Alternatives Considered
G. Cross-Cutting Issue-Related Comments
1. Role of the Interested Public
2. Land Use and Allotment Management Planning
3. Monitoring
4. Enforcement
H. Other Recommendations
1. Advisory Councils and Grazing Advisory Boards
2. Wild Horses and Burros
3. Reserve Common Allotments
4. Incentives for Good Stewardship
5. Encouraging Flexible Management
6. Determining Appropriate Technical Procedures
7. Access to Public Lands
8. Judicial Matters
9. Interagency Cooperation
V. Section-by-Section Analysis and Response to Comments
VI. Procedural Matters
I. Background
A. History
BLM administers livestock grazing on BLM lands within the
continental United States under the regulations found at 43 CFR part
4100. Statutory authority for these regulations includes the following:
1. The Taylor Grazing Act (TGA) as amended (43 U.S.C. 315, 315a
through 315r);
2. The Federal Land Policy and Management Act of 1976 (FLPMA) (43
U.S.C. 1701 et seq.) as amended by the Public Rangelands Improvement
Act (PRIA) (43 U.S.C. 1901 et seq.);
3. Section 4 of the Oregon and California Railroad Lands Act (43
U.S.C. 1181d);
4. Executive orders that transfer land acquired under the Bankhead-
Jones Farm Tenant Act (7 U.S.C. 1012) to the Secretary and authorize
administration under TGA; and
5. Public land orders, executive orders and agreements authorizing
the Secretary to administer livestock grazing on specified lands under
TGA or on other lands as specified.
Section 202 of FLPMA requires the development and maintenance of
land use plans for public lands. BLM land use plans are designed to
provide guidance for future management actions and the development of
subsequent, more detailed and limited-scope plans for resources and
uses. Land use plans are developed under the multiple-use and
sustained-yield mandate of FLPMA. Land use plans identify lands that
are available for livestock grazing and the parameters under which
grazing is to occur. BLM issues grazing permits or leases for available
grazing lands. Grazing permits and leases specify the portion of the
landscape BLM authorizes to the permittee or lessee for grazing (i.e.,
one or more allotments) and establish the terms and conditions of
grazing use. Terms and conditions include, at a minimum, the number and
class of livestock, when and where they are allowed to graze, and for
how long. Grazing use must conform to any applicable allotment
management plans, the terms and conditions of the permit or lease, land
use plan decisions, the grazing regulations, and other applicable laws.
Since the first set of grazing regulations was issued after passage
of the TGA in 1934, the regulations have
[[Page 39403]]
been periodically amended and updated. The last major revision effort
was called ``Rangeland Reform ``94.'' In February 1995, BLM published
comprehensive changes to the grazing regulations and put them into
effect in August 1995. Major changes made to the regulations in 1995
included the following:
Revised the term ``grazing preference'' to mean a priority
position against other applicants for receiving a grazing permit,
rather than a specified amount of public land forage apportioned and
attached to a base property owned or controlled by a permittee or
lessee, and added the term ``permitted use'' to describe forage use
amounts allocated by or under the guidance of an applicable land use
plan, and authorized by grazing permits or leases;
Provided that BLM could issue a ``conservation use''
permit to authorize permittees not to graze their permitted allotments;
Limited authorized temporary nonuse to 3 consecutive
years;
Required grazing fee surcharges for permittees who do not
own the livestock that graze under their permits;
Provided that the United States holds 100 percent of the
vested title to permanent range improvements, such as fences, wells,
and pipelines, constructed under cooperative agreements dated after
August 21, 1995, rather than proportionately sharing title with the
cooperators;
Required livestock operators and BLM to use cooperative
agreements to authorize new permanent water developments, instead of
allowing some water developments to be authorized under range
improvement permits;
Provided that after August 21, 1995, any water right
acquired on public land to be used for livestock watering on public
land must be acquired, perfected, maintained, and administered under
substantive and procedural laws of the state where the land is located,
and that such water rights are to be acquired in the name of the United
States, to the extent allowed by the law of the state;
Established fundamentals of rangeland health; and
Created a process for developing and applying state or
regional standards for land health and guidelines for livestock grazing
as a yardstick for grazing management performance.
Soon after the grazing regulations took effect on August 21, 1995,
a lawsuit was filed challenging the validity of several of the new
regulations. All challenged provisions except ``conservation use'' (see
the second bullet, above) were upheld. Public Lands Council v. Babbitt,
167 F.3d 1287 (10th Cir. 1999), aff'd, 529 U.S. 728 (2000).
On March 3, 2002, BLM published an Advance Notice of Proposed
Rulemaking (ANPR) and Notice of Intent (NOI) to prepare an
environmental impact statement (EIS) in the Federal Register (68 FR
9964-9966 and 10030-10032, respectively). These notices requested
public comment and input to assist BLM with the scoping process for the
proposed rule and the EIS. The comment period on the ANPR and the NOI
ended on May 2, 2003.
During the scoping process, BLM held four public meetings to elicit
comments and suggestions for the proposed rule and development of the
draft environmental impact statement (DEIS). The meetings were held
during March 2003 in Albuquerque, New Mexico; Reno, Nevada; Billings,
Montana; and Washington, DC. BLM received approximately 8,300 comments
on the ANPR and the NOI. The majority of these were varying types of
form letters.
We considered many of the issues that the public raised during the
scoping period and discussed several of them as alternatives in the
DEIS. We did not address, however, some of the issues that comments
raised, because they were either beyond the scope of the document, did
not meet the basic goals of these proposed changes to the regulations,
or BLM decided we could better address the issues through internal
policy changes. We listed and discussed these issues in the proposed
rule (68 FR 68455), and in section 1.3.2 of the DEIS, and there is no
need to repeat them here.
We published the proposed rule on December 8, 2003 (68 FR 68452),
inviting public comments until February 6, 2004. On January 16, 2004,
we published a notice to extend the comment period to March 2, 2004 (69
FR 2559). BLM held six public meetings in late January and early
February, 2004, to provide the public an opportunity to comment on the
proposed rule. Meetings were held in Salt Lake City, Utah; Phoenix,
Arizona; Boise, Idaho; Billings, Montana; Cheyenne, Wyoming; and
Washington, DC. Approximately 250 individuals attended the public
meetings and 95 provided oral comments. These were transcribed and can
be viewed on the BLM web site at http://www.blm.gov/grazing. We received about
18,000 comment letters and electronic communications. Most of the
comments were form letters or emails. An exact count of the comments is
not available because of the large amount of duplication among the
comments due to individuals or entities submitting identical comments
multiple times or via different media. We did not attempt to keep track
of all the duplications, although we observed many. You may view
comment letters, including scanned images of faxes and handwritten
letters, on BLM's regulatory comment system accessible at http://www.blm.gov/nhp/news/regulatory/index.html
.
B. Why We Are Amending the Regulations
The grazing regulations are being amended based largely on lessons
learned in implementing the 1995 regulations. Other changes are
designed to improve clarity, ensure internal consistency, and address
the 10th Circuit holding regarding ``conservation use'' permits.
Many changes have been made in livestock grazing management and
practices to improve the health of the public rangelands since the
passage of the TGA in 1934 and FLPMA in 1976. The final rule recognizes
the many benefits of livestock grazing on public lands, including its
social and economic contributions to rural communities and its
preservation of open space in the rapidly growing West, as well as the
importance of maintaining healthy rangelands and wildlife habitat.
When we developed this final rule, we considered whether the
changes facilitated improving working relations with grazing permittees
and lessees, protecting the health of rangelands, or increasing
administrative efficiency and effectiveness. The changes in the final
rule enhance BLM's ability to accomplish each of these objectives.
The major changes in the final rule are listed below by objective.
Improving Working Relations With Grazing Permittees and Lessees
Require BLM to follow a consistent approach in analyzing
and documenting the relevant social, economic, and cultural effects of
proposed changes in grazing preference and incorporate such analyses
into appropriate National Environmental Policy Act (NEPA) documents.
Require phase-in of changes in grazing use of more than 10
percent over a 5-year period, consistent with relevant law.
Provide for joint ownership of range improvements--changes
would allow BLM and a grazing permittee, or other cooperator, to share
title to certain structural range improvements, such as fences, wells,
or pipelines, if they are constructed under a Cooperative Range
Improvement Agreement.
Require BLM to cooperate with Tribal, state, county, and
local
[[Page 39404]]
government-established grazing boards in reviewing range improvements
and allotment management plans on public lands.
Protecting the Health of Rangelands
Remove the 3-consecutive-year limit on temporary nonuse of
a grazing permit but continue to require BLM to review nonuse annually
to make sure it is still necessary, whether for resource conservation,
enhancement, or protection, or for personal or business purposes.
Provide that a standards assessment will be used by the
authorized officer to gauge whether rangeland is failing to achieve
standards or that management practices do not conform to the
guidelines, and where assessments indicate failure to achieve standards
or to conform with guidelines, require BLM to use existing or new
monitoring data to identify the factors that significantly contribute
to failing to achieve standards or conform with guidelines.
Provide additional time after a determination that grazing
practices or levels of use are significant factors in failing to
achieve standards and conform to guidelines for BLM to formulate,
propose, and analyze actions; to comply with all applicable laws; and
to complete all consultation, cooperation, and coordination
requirements before reaching a final decision on appropriate actions.
Increasing Administrative Efficiency and Effectiveness
Eliminate the ``conservation use'' permit regulatory
provisions to comply with the Tenth Circuit Court of Appeals decision
in Public Lands Council v. Babbitt, 167 F.3d 1287 (10th Cir. 1999),
aff'd on other grounds, 529 U.S. 728 (2000).
Expand the definition of ``grazing preference'' to include
an amount of forage on public lands attached to a rancher's private
base property, which can be land or water. This expanded definition,
similar to one that existed from 1978 to 1995, makes clear that grazing
preference has a quantitative meaning (forage amounts, measured in
Animal Unit Months (AUMs)) as well as a qualitative one (priority of
position ``in line'' for grazing privileges).
Modify the definition of ``interested public'' to ensure
that only those individuals and organizations who actually participate
in the process are maintained on the list of interested publics. (The
regulations with respect to the interested public are also revised to
improve efficiency in BLM's management of public lands grazing by
reducing the occasions in which the Bureau is required to involve the
interested public. Under this provision, BLM could involve the public
in such matters as day-to-day grazing administration, but would no
longer be required to do so. BLM would continue to require
consultation, cooperation, and coordination with the interested public
in grazing planning activities such as allotment management planning or
range improvement project or program planning.)
Provide flexibility to the Federal government in decisions
relating to livestock water rights by removing the requirement that, if
BLM acquires water rights for livestock watering on public land under
state law, BLM must acquire, perfect, maintain, and administer those
water rights in the name of the United States where allowed by State
law.
Clarify that an applicant for a new permit or lease will
be deemed to have a record of satisfactory performance when the
applicant has not had any Federal or state grazing permit or lease
canceled, in whole or in part, for violation of the permit or lease
within the 36 calendar months immediately preceding the date of
application, and a court of competent jurisdiction has not barred the
applicant or an affiliate from holding a Federal grazing permit or
lease.
Clarify what is meant by ``temporary changes in grazing
use within the terms and conditions of permits and lease.'' Under the
1995 regulations, BLM can approve temporary changes in grazing use
within the terms and conditions of a permit or lease. The final rule
clarifies that ``temporary changes in grazing use within the terms and
conditions'' means temporary changes to livestock number, period of
use, or both, that would result in nonuse or in grazing use where
forage removal does not exceed the amount of active use specified in
the permit or lease, and such grazing use occurs not earlier than 14
days before the begin date specified on the permit or lease and not
later than 14 days after the end date specified on the permit or lease,
unless otherwise specified in the appropriate allotment management
plan.
Increase certain service charges to reflect more
accurately the cost of grazing administration.
Clarify that if a permittee or lessee is convicted of
violating a Federal or state law or regulation, and if the violation
occurs while he is engaged in grazing-related activities, BLM may take
action against his grazing permit or lease only if the violation
occurred on the BLM-managed allotment where the permittee or lessee is
authorized to graze.
Provide the authority for BLM to issue an immediately
effective decision on non-renewable grazing permits or leases or on
applications for grazing use on designated ephemeral or annual
rangelands. Under the final rule, if a stay on an appeal of such a
decision is granted, the decision would be inoperative and, if
appropriate considering the specific stay, the livestock may have to be
removed from the allotment.
Clarify how BLM will authorize grazing when the Office of
Hearings and Appeals (OHA) stays all or part of a BLM grazing decision
affecting a permit or lease. Such decisions may:
Cancel, suspend or change terms and conditions of a permit
or lease during its current term,
Renew a permit or lease, or
Grant or deny a permit or lease to a preference
transferee.
Under the final rule, if OHA stays all or part of such a decision,
then BLM will, with respect to any stayed portions of the decision,
authorize grazing use on the allotment(s) or portions of the
allotment(s) in question pursuant to terms or conditions that are the
same as the permit or lease that immediately preceded BLM's decision,
subject to any other provisions of the stay order.
Clarify that a biological assessment or biological
evaluation, prepared in compliance with the Endangered Species Act
(ESA), is not a decision and therefore is not subject to protest or
appeal.
Provide that the primary function of the fundamentals of
rangeland health is to describe land condition goals and to guide
development of the Standards and Guidelines that must be implemented to
ensure that the conditions described by the fundamentals of rangeland
health exist.
The reasons for the changes in the final rule are described in the
Record of Decision in Part III of this preamble.
C. Rules of Construction: Words and Phrases
For simplicity and to make the rule easier to read and understand
we use words that signify the singular to include and apply to the
plural and vice versa as provided in 43 CFR 1810.1. Words that signify
the masculine gender also include the feminine. Words used in the
present tense also apply to the future. The terms ``BLM'' and
``authorized officer'' are used interchangeably and include any person
authorized by law or by lawful
[[Page 39405]]
delegation of authority to perform the duties described in this final
rule.
II. Changes Made Since the Proposed Rule
This part of the preamble describes briefly the changes we made
since the proposed rule as a result of comments and our own review. A
reader who is interested in a quick overview of the changes we made
between the proposed and final rules may find this part useful.
However, if you are looking for a detailed description of all the final
rule changes from the existing regulations, you should look at the
section-by-section analysis which appears later in this preamble.
Section 4100.0-5 Definitions
We changed the definition section in several respects in the final
rule.
Active use. In this definition, we have substituted the word
``livestock'' for ``rangeland'' in the reference to carrying capacity.
The change makes the definition consistent with all other references to
``carrying capacity'' in the rule.
District. We have amended the definition for the term ``District''
to update the regulations as to the organization of BLM field offices.
Ephemeral rangelands. We have revised the definition for this term
by removing the misstatement that production of sufficient forage by
ephemeral range was necessarily unusual.
Interested public. We amended this section to make it clear that,
in a request to be considered a member of the interested public, a
person must identify the specific allotments in which the person or
entity is interested. We also added language providing that when
members of the interested public submit comments or otherwise
participates, they must address the management of a specific allotment.
Subpart 4110 Qualifications and Preference
Section 4110.2-3 Transfer of Grazing Preference
In the final rule we amended this section to make it clear that a
transfer application must show the base property and the grazing
preference attached to that base property.
We also removed the phrase ``if the applicant leases the base
property'' from the second sentence of paragraph (c), and removed the
third sentence entirely. This will clarify that anyone with an interest
in the base property, not just an owner who is leasing the property to
the preference holder, must provide written consent before a preference
transfer can take place. The third sentence addressed a situation
unique to the historical origins of grazing preference that is no
longer applicable.
Section 4110.3 Changes in Grazing Preference
We amended paragraph (a)(2) of section 4110.3 to make it clear that
BLM can make changes in grazing preference to assist in making progress
toward restoring ecosystems to properly functioning conditions. We also
amended paragraph (c) to make it clear that the analysis of social,
economic, and cultural factors that BLM will perform before changing
preference will be under NEPA (42 U.S.C. 4332).
Section 4110.3-1 Increasing Active Use
In the final rule we have added language in the introductory text
of section 4110.3-1 to make it clear that decisions increasing active
use are also based on monitoring or documented field observations, just
as decisions decreasing active use must be. Changes in preference,
whether increases or decreases, already must be supported by monitoring
or documented field observations.
We have also amended paragraphs (a) and (b) to make it clear that
BLM must determine that additional forage is available for livestock,
as opposed to other consumption or use, before we can authorize
livestock grazing use of it on a temporary or sustained-yield basis.
Section 4110.3-3 Implementing Changes in Active Use
We amended section 4110.3-3 in the final rule in 3 respects:
We changed ``shall'' to ``will'' in paragraph (b)(1) to
reflect standard usage in BLM regulations. This change has no practical
effect on the obligatory nature of the provision.
We added the word ``or'' in paragraph (b)(1)(i) as a
grammatical correction.
We corrected a cross-reference in paragraph (b)(ii).
Section 4120.2 Allotment Management Plans and Resource Activity Plans
In section 4120.2(c), we changed ``shall'' to ``will'' to reflect
standard usage in BLM regulations. This change has no practical effect
on the obligatory nature of the provision.
Section 4120.3-1 Conditions for Range Improvements
In section 4120.3-1(f), we changed ``shall'' to ``will'' to reflect
standard usage in BLM regulations. This change has no practical effect
on the obligatory nature of the provision.
Section 4120.3-2 Cooperative Range Improvement Agreements
We further amended paragraph (b) by adding the word ``will'' to
make it clear that shared ownership of range improvements is not merely
descriptive but regulatory and prospective.
Section 4120.3-3 Range Improvement Permits
We have revised paragraph (c) of section 4120.3-3 for purposes of
clarification. The language in the existing text is unnecessarily
convoluted and confusing. The point of the paragraph is to set the
stage for what this part of the regulations is really about: if BLM
lets a third party graze on your allotment, how do we address the use
and maintenance of range improvements occurring on that allotment? We
also removed a reference to conservation use.
Section 4120.5-2 Cooperation With Tribal, State, County, and Federal
Agencies
In the final rule, we have amended the introductory text and added
paragraph (c) of section 4120.5-2 to add Tribal grazing boards to the
list of entities with which we will cooperate, and to make it clear
that BLM is formally required to cooperate only with Tribal, state,
county, or local grazing boards that are established under Tribal or
government authority, as opposed to private organizations that might
assume the title ``grazing board.'' We also added ``Tribal agencies''
to the section heading and to the general provisions on cooperation.
Section 4130.1-1 Filing Applications
We further amended paragraph (b) of section 4130.1-1 to correct an
unintentional flaw, in that the paragraph seemed to refer to renewal of
new permits. We are also making it clear in paragraph (b)(2) that the
section refers to permits and leases that authorize use of new or
transferred preference.
Section 4130.3 Terms and Conditions
In the final rule, we amended proposed section 4130.3 by removing
paragraphs (b)(1) and (b)(2) in response to comments. Paragraph (b)(1)
referenced terms and conditions that are not subject to review by OHA,
and identified terms and conditions derived from biological opinions as
an example. Paragraph (b)(2) restricted the right of appeal and protest
where it was not necessary to do so. We also amended
[[Page 39406]]
paragraph (c) to make clear how BLM would authorize grazing if BLM made
numerous changes in terms and conditions of a permit or lease, and upon
an appellant's petition, OHA stayed only one or a portion of them. In
this circumstance, BLM would authorize use, with respect to the stayed
terms and conditions, according the comparable terms and conditions
that were in effect prior to BLM's decision to change them in
combination with the changed terms and conditions that were not stayed
by OHA.
Section 4130.3-2 Other Terms and Conditions
In the proposed rule, we amended section 4130.3-2 by removing
paragraph (h), which provides that the authorized officer may include
in permit and lease terms and conditions a statement disclosing the
requirement that permittees and lessees shall provide administrative
access across private and leased lands if it is necessary for the
orderly management and protection of public lands. In response to
public comments, we have restored paragraph (h) in this final rule. (We
did this by removing the amendatory text that appeared in the proposed
rule directing the removal of paragraph (h). Thus, although the
regulatory text in this final rule contains no mention of section
4130.3-2, the effect of the final rule is to leave paragraph (h)
intact.)
Section 4130.3-3 Modification of Permits or Leases
We removed the words ``biological assessments or biological
evaluations prepared under the Endangered Species Act, and other'' from
section 4130.3-3(b), because it is unnecessary to highlight biological
assessments and biological evaluations as examples of reports during
the preparation of which BLM seeks input from affected permittees,
lessees, states, and the interested public. We added the word
``otherwise'' in paragraph (b) because increasing or decreasing grazing
use is a change in terms and conditions of a grazing permit or lease.
Without the word, the paragraph seems to read that such an increase or
decrease is not a change in terms and conditions.
Section 4130.4 Authorization of Temporary Changes in Grazing Use Within
the Terms and Conditions of Permits and Leases, Including Temporary
Nonuse
In the final rule, we added ``temporary nonuse'' to the heading of
section 4130.4 as a convenience to readers. We also removed language in
paragraph (a) of the section listing reasons for allowing temporary
changes in grazing use within the terms and conditions of the grazing
authorization.
We have amended paragraph (d)(2) of section 4130.4 of the proposed
rule, which becomes paragraph (e)(2) in the final rule, by changing the
word ``will'' to ``may'' in order to avoid an interpretation of this
provision that BLM has no discretion to deny temporary nonuse.
We also amended paragraph (f) of the proposed rule, which becomes
paragraph (g) in the final rule, to provide that permittees or lessees
``must'' apply if they need temporary changes in grazing use. The
proposed rule stated that they ``should'' apply. The final rule also
makes it clear that such an application must be in writing.
We amended paragraph (b) to recognize that the same application may
cover both temporary nonuse and removal of forage either before the
begin date or after the end date, and to allow such changes that
conform to flexibility limits specified in an allotment management plan
under Sec. 4120.2(a)(3) despite the 14 day limit.
Finally, we reordered the paragraphs in the section more logically,
redesignating paragraph (a)(2) as (c) and adjusting the succeeding
paragraph designations accordingly, and made editorial changes for
purposes of clarity.
Section 4130.6-2 Nonrenewable Grazing Permits and Leases
In the final rule, we redesignated the proposed text as paragraph
(a) and added a new paragraph (b) allowing BLM to make a decision
issuing a nonrenewable grazing permit or lease, or affecting an
application for grazing use on annual or designated ephemeral
rangelands, effective immediately or on a date established in the
decision.
For purposes of clarity and ease of usage, in the final rule we
have amended the first sentence of section 4130.6-2(a) by adding a
cross-reference to section 4110.3-1(a), which provides for the
disposition of additional forage temporarily available.
Section 4130.8-1 Payment of Fees
In the final rule we further amended paragraph (h) of section
4130.8-1 to make it clear that failure to make payment within 30 days
is a violation of a prohibited act in section 4140.1 and may result in
enforcement action.
Section 4130.8-3 Service Charges
In the final rule we added language to paragraph (a) of section
4130.8-3 providing that BLM will adjust the service charges
periodically as costs change, and publish notice thereof in the Federal
Register, and revised paragraphs (a) and (b) for clarity. We also
restored supplemental grazing fee billings to the list of services for
which BLM imposes a service charge.
Section 4140.1 Acts Prohibited on Public Lands
In the final rule we made an editorial change in section
4140.1(a)(2) for purposes of clarity, and corrected a typographical
error in section 4140.1(c)(3)(ii).
Section 4150.2 Notice and Order To Remove
In the final rule we corrected an erroneous cross-reference in
paragraph (d).
Section 4150.3 Settlement
In the final rule, we amended new paragraph (f) of section 4150.3
to make it clear that ``this part'' refers to all of part 4100 and that
grazing will continue pending completion of the administrative appeal
process, as opposed to resolution of judicial appeals.
Section 4160.1 Proposed Decisions
In the final rule, we added necessary cross-references to paragraph
(c) of section 4160.1, which was not amended in the proposed rule.
These additions conform the paragraph to the addition of section
4130.6-2(b) in this rule, and the addition of section 4190.1(a) in a
previous final rule (68 FR 33804, June 5, 2003).
Section 4160.3 Final Decisions
In the final rule, we also added necessary cross-references to
paragraph (c) of section 4160.3 to conform the paragraph to the
addition of section 4130.6-2(b) in this rule, and the addition of
section 4190.1(a) in a previous final rule (68 FR 33804, June 5, 2003).
Section 4160.4 Appeals
In response to comments by OHA and others, we have removed Sec.
4160.4(c) in the final rule, and simplified paragraph (b). We have
revised Sec. 4160.4(b)(1), (2), and (3) to clarify that, when OHA
stays all or part of a decision modifying or renewing a grazing permit
or lease, or a decision offering or denying a permit or lease to a
preference transferee, grazing may proceed, with respect to the
portions of the decision that were stayed, under comparable terms and
conditions of the permit or lease that immediately preceded the
decision that was stayed, subject to any relevant provisions of the
stay order.
[[Page 39407]]
Section 4180.1 Fundamentals of Rangeland Health
We have removed the language from the introductory text of this
section that requires BLM to modify grazing management to ensure that
the conditions described by the fundamentals of rangeland health exist
only where standards and guidelines have not been established under
section 4180.2, and added in its place a characterization of the
purpose of the fundamentals of rangeland health.
We have also amended paragraph (d) of section 4180.1 to remove the
reference to ``at-risk'' species.
Section 4180.2 Standards and guidelines for grazing administration.
As in section 4180.1, in section 4180.2 also we have removed
references to ``at-risk'' species in paragraphs (d)(4), (e)(9) and
(f)(2)(viii). We also changed ``or'' to ``and'' before the phrase
``other special status species'' in (d)(4).
We have added language in section 4180.2(b) allowing BLM to extend
the deadline for making a decision following a determination when
legally required processes that are the responsibility of another
agency prevent completion within 24 months.
Finally, we made procedural changes in paragraph (c) to provide
that if a standards assessment indicates to the authorized officer that
the rangeland is failing to achieve standards or that management
practices do not conform to the guidelines, then the authorized officer
will use existing or new monitoring data to identify the significant
factors that contribute to failing to achieve the standards or to
conform with the guidelines.
III. Record of Decision Under the National Environmental Policy Act
This preamble constitutes BLM's record of decision, as required
under the Council on Environmental Quality regulations at 40 CFR
1505.2. The decision is based on the proposed action and alternatives
presented in the Final Environmental Impact Statement, ``Revisions to
Grazing Regulations for the Public Lands.''
A. Decisions
After considering all relevant issues, alternatives, potential
impacts, and management constraints, BLM selects the Proposed Action,
Alternative 2, in the Final EIS for implementation. Alternative 2
changes the existing grazing regulations in several areas as follows:
A new provision requiring BLM to analyze and, if
appropriate, document the relevant social, economic, and cultural
effects as part of the NEPA analysis of proposed actions to change
grazing preference;
An amendment providing that, generally, changes in active
use greater than 10 percent will be phased in over 5 years consistent
with existing law;
An amendment providing for proportional sharing of title
to permanent range improvements between BLM and a cooperator, based on
initial contribution to construction and installation;
A new provision for cooperation with Tribal, state, county
or local government-established grazing boards in reviewing range
improvements and allotment management plans on public land;
An amendment removing the 3-consecutive-year limit on
temporary nonuse and substituting a provision for annual review of
temporary nonuse.
An amendment making BLM's finding that existing grazing
management practices or levels of grazing use on public lands are
significant factors in failing to achieve range health standards or
conform with grazing management guidelines a two-step process. The
authorized officer will use a standards assessment to gauge whether
rangeland is failing to achieve standards or management practices do
not conform to the guidelines, and, if this is the case, he will use
existing or new monitoring data to identify the significant factors
contributing to not meeting standards or conforming with guidelines.
An amendment providing BLM up to 24 months after making a
determination that grazing practices or levels of use are significant
factors in failure to achieve standards or conform to guidelines, (1)
to formulate, propose, and analyze appropriate action, (2) to comply
with all applicable laws, and (3) to complete all consultation,
cooperation, and coordination requirements before reaching a final
decision on the appropriate action. The amendment allows for additional
time beyond 24 months if necessary to meet legal obligations that are
the responsibility of another agency.
An amendment removing the provision that requires BLM to
modify grazing management to ensure that the conditions described by
the fundamentals of rangeland health exist. This amendment recognizes
that BLM relies on evaluation of achievement of the standards of
rangeland health and conformance with grazing management guidelines to
determine whether grazing management needs to be modified in order to
achieve the general descriptions of land health described by the
Fundamentals.
Amendments removing ``conservation use'' permit regulatory
provisions throughout the grazing regulations in accordance with Public
Lands Council v. Babbitt, supra;
An amendment revising the definition of ``grazing
preference'' to mean, in addition to a priority position against others
for the purpose of receiving a permit or lease, the total number of
AUMs on public lands apportioned and attached to base property owned or
controlled by a permittee, a lessee, or an applicant for a permit or
lease. Grazing preference includes active use and use held in
suspension. Related to this change, we also removed the definition of
``permitted use'' from the regulations;
Amendments revising the definition and role of the
``interested public'' to ensure that only those individuals and
organizations who actually participate in the process are maintained on
the list of interested publics, and to improve efficiency by reducing
the occasions in which BLM is mandated to involve the interested
public;
An amendment removing the requirement that, if livestock
water rights are acquired under state law, they must be acquired,
perfected, and maintained in the name of the United States;
An amendment clarifying the criteria that BLM considers
when determining whether an applicant for a new permit or lease or a
transfer of grazing preference has a satisfactory record of
performance;
An amendment defining the meaning of ``temporary changes
in grazing use within the terms and conditions of the permit or lease''
and describing when and how BLM authorizes temporary changes in grazing
use;
An amendment raising service charges for a crossing
permit, transfer of preference, and cancellation and replacement of a
grazing fee billing;
An amendment limiting the applicability of certain
prohibited acts to those allotments where the permittee or lessee is
authorized to graze;
An amendment providing authority for BLM to issue
immediately effective decisions on nonrenewable grazing permits or
leases or on decisions affecting applications for grazing use on
designated ephemeral or annual rangelands;
An amendment clarifying the effect of an administrative
stay on a decision to modify or renew a grazing permit or lease, or a
decision to offer or deny a
[[Page 39408]]
permit or lease to a preference transferee; and
An amendment clarifying that a biological assessment or
evaluation prepared for a Section 7 consultation under the ESA is not a
decision for purposes of protest or appeal.
Additional amendments are also effected by this decision. They are
identified in the Preamble, Part V. Section-by-Section Analysis and
Response to Comments, as well as in the regulatory text in this final
rule.
One comment on the DEIS stated that BLM ``subverted'' the NEPA
process by issuing the DEIS after the proposed rule was published and
rewriting an earlier draft.
We discuss this comment in detail under Response to General
Comments, General Opposition, section IV.C. of this preamble.
B. Alternatives Considered
BLM considered three alternatives in the EIS to address issues that
were raised by the public during the EIS scoping period and issues that
surfaced during implementation of the 1995 regulations. Alternatives
were developed for 18 issues and combined. As stated in the EIS, the
regulatory changes are narrow in scope, do not include changes in
grazing fees or the fundamentals of rangeland health, or the standards
and guidelines for grazing administration, and otherwise leave the
majority of the 1995 regulatory changes in place. The changes that are
analyzed address specific issues and concerns that have come to BLM's
attention. These issues and concerns came to the fore as areas where
BLM could improve working relations with permittees and lessees,
protect the health of the rangelands, and improve administrative
efficiency and effectiveness, including resolution of legal issues. The
alternatives included Alternative 1, the required ``no action''
alternative, which would have retained the 1995 regulations,
Alternative 2, the proposed action alternative, and Alternative 3, the
modified action alternative.
The following is a brief description of the alternatives:
Alternative 1, No Action--This alternative would not have changed
the regulations. Its consideration is required under NEPA.
Alternative 2, Proposed Final Regulations--This alternative is
BLM's proposed action and the agency's ``preferred alternative.'' We
modified the alternative between the draft and final EIS in response to
public comments. This alternative represents BLM's preferred regulatory
approach after the agency considered the results of public scoping and
comments on the December 2003 proposed rule.
Alternative 3--Modified Action Alternative--This alternative
differs from the preferred alternative in several respects:
The 5-year phase-in of changes in use greater than 10
percent would have been discretionary rather than mandatory,
Temporary nonuse would have been limited to 5 years rather
than the current limit of 3 years,
BLM would not have been required to use both assessments
and monitoring as bases for determinations of rangeland health,
Prohibited acts would have included failure to use
certified weed seed free forage, grain, straw or mulch when required by
BLM,
The third category of prohibited acts, which pertain to
violations of certain Federal or state laws or regulations, would have
been removed from the regulations.
C. Environmentally Preferable Alternative
The Council on Environmental Quality's regulations for implementing
NEPA (40 CFR 1505.2(b)) require that the Record of Decision specify the
environmentally preferable alternative.
We determined the environmentally preferable alternative to be the
Proposed Action (Alternative 2). The Proposed Action provides for the
beneficial use of the public lands for livestock grazing while
maintaining and improving the health of the land. The reasons why we
determined the Proposed Action to be environmentally preferable to each
of the alternatives are listed below.
The Proposed Action may result in more short-term adverse impacts
in some areas than under the No Action alternative. However, it is
expected to result in more beneficial long-term impacts than either the
No Action alternative or the Modified Action Alternative (Alternative
3).
We determined that the Proposed Action is environmentally
preferable to the No Action alternative for the following reasons:
Under the Proposed Action a standards assessment will be
used by the authorized officer to assess whether rangeland is failing
to achieve standards or that management practices do not conform to the
guidelines. BLM will use standards assessment and existing or new
monitoring data to identify significant contributing factors in failing
to achieve standards or conform with guidelines. The No Action
alternative does not require monitoring. Use of monitoring data will
enable more rigorous scientific analyses. As a result changes in range
management actions will be more effective and decisions to increase or
decrease active use will be more sustainable and less vulnerable to
appeal.
The Proposed Action allows up to 24 months (or longer if
necessary to accommodate legally-required processes of another agency)
following a determination on rangeland standards for BLM to formulate,
propose, and analyze the appropriate action. This will allow BLM to
complete required analyses and consultations, and provide additional
time to collaborate with the permittee/lessee to examine alternatives
and select the best solution for a sustainable decision with more
acceptance from the permittee/lessee and more effective action to
change grazing management to improve resource conditions. We expect the
added collaboration to result in decisions that are less likely to be
appealed. This will also allow more time to complete any necessary NEPA
analysis and to ensure compliance with all applicable and relevant laws
and regulations. BLM believes that adoption of the proposed rule will
lead to improved land conditions in the long-term as indicated in the
analysis in section 4.5 of the Addendum to the EIS. That analysis
states that some adverse impacts are unavoidable, but in the long-term
better and more sustainable decisions would be developed by using
monitoring.
The 5-year phase-in of reductions in active use of greater
than 10 percent (which will likely be required on only a small
percentage of allotments, as explained in detail in part III.D.3. of
this preamble) may result in short-term adverse impacts to natural
resources on some allotments. A phase-in period would avoid the adverse
impacts of sudden herd size reductions on permittees/lessees. The
ability of BLM to use the phase-in period helps BLM and the permittee/
lessee to work collaboratively to ensure the appropriate changes in
range management practices on a timely basis, while still retaining
authority to implement changes on a faster time schedule if necessary
to address ESA or other resource concerns.
The provision for shared ownership in range improvements
under the Proposed Action is expected to encourage investment in such
projects by cooperators and result in improvements in resource
condition.
The Proposed Action has no limit on the number of years of
nonuse that can be taken on an allotment. The No Action alternative has
a 3 consecutive year limit on nonuse. The removal of
[[Page 39409]]
the limit under the Proposed Action improves cooperation with the
permittee/lessee when nonuse is the best management practice to benefit
resource conditions, e.g., to remedy damage caused by fire, flood,
drought, etc. BLM would be able to authorize nonuse on an annual basis
for resource conservation, enhancement, or protection. The availability
of nonuse as an easy-to-implement, collaborative option should result
in more rapid recovery in damaged areas and more rapid progress toward
meeting resource condition objectives. Further, it is a simpler process
to approve an application for nonuse than it is to impose a formal
suspension, thereby improving management efficiency in those cases
where all involved parties agree that nonuse is warranted.
The Proposed Action removes requirements that BLM consult
with the interested public on day-to-day grazing matters, and requires
that BLM provide opportunities for the interested public to participate
in the decision-making process when the focus is on planning or on the
preparation of reports that evaluate data that are used in grazing
decisions. Less stringent requirements for public participation
requirements in routine grazing management matters and excising non-
participating interested publics from the list of those who it attempts
to consult will free up BLM resources for more effective management to
benefit the natural environment.
The Proposed Action removes the requirement that on
Federal land BLM seek livestock watering water rights in the name of
the United States to the extent allowed by State law, and thus provides
BLM additional flexibility for cooperative development of water
projects that will benefit livestock grazing management and wildlife.
The Proposed Action removes the provision that directs BLM
to take action to remedy improper grazing practices when the authorized
officer determines that existing livestock grazing management needs to
be changed to achieve the conditions described in the fundamentals of
rangeland health, and makes it clear that standards evaluation and
conformance determination will be the benchmark by which we determine
the need to adjust grazing management. It retains the requirement that
standards and guidelines developed by BLM State Directors be consistent
with the Fundamentals. The resulting improved efficiency in
implementing our rangeland health improvement processes will benefit
the environment.
We determined that the Proposed Action is environmentally
preferable to Alternative 3 (Modified Action) for the following
reasons:
Under the Proposed Action a standards assessment will be
used by the authorized officer to gauge whether rangeland is failing to
achieve standards or that management practices do not conform to the
guidelines. BLM will use standards assessment and existing or new
monitoring data to identify significant contributing factors in failing
to achieve standards or conform with guidelines. Under Alternative 3,
monitoring is discretionary. Consequently, some rangeland health
determinations would not be as rigorously developed as under the
proposed action. Using existing or new monitoring data will lead to
more scientifically sound analyses. As a result, changes in range
management actions will be more effective, and decisions to increase or
decrease active use should be less vulnerable to appeal.
The Proposed Action has no limit on the number of years of
nonuse that can be taken on an allotment. The Modified Action
Alternative, Alternative 3, has a 5 consecutive year limit on nonuse.
The removal of the limit under the Proposed Action enhances cooperation
with the permittee/lessee when nonuse is the best management practice
to benefit resource conditions, e.g., to remedy damage caused by fire,
flood, drought, etc. BLM would be able to authorize nonuse on an annual
basis for resource conservation, enhancement, or protection. The
availability of nonuse as an option should result in more rapid
recovery in damaged areas and more progress toward meeting resource
objectives.
Under the Proposed Action, BLM may impose civil penalties
on a permittee/lessee (e.g., canceling his grazing permits) if he is
convicted of violating certain specific Federal or state environmental
and cultural laws. Alternative 3 would eliminate the potential civil
penalty for a permittee/lessee because such an action is not included
under ``prohibited acts'' under Alternative 3.
Alternative 3 includes failing to use weed seed-free
forage products (when required by the Authorized Officer) as a
``prohibited act,'' and the Proposed Action does not include it as a
prohibited act. While a weed-seed free forage provision would be more
environmentally desirable, due to the lack of state weed seed-free
forage laws in some western states, BLM has decided to work with each
state in its efforts to develop a law, and will pursue enforcement of
weed seed-free forage on public lands through a subsequent, separate
rulemaking.
D. Decision Rationale
During the years that BLM has been working with the 1995 grazing
regulations, we recognized several areas where BLM could benefit from
amending the 1995 regulations. Based on the analysis in the EIS
(including the Revisions and Errata document issued June 17, 2005, and
the Addendum to the FEIS, published March 31, 2006), which analyzes
three alternatives for amending the regulations, and a review of public
comments, we selected Alternative 2 (Proposed Action).
BLM provided opportunities for public involvement throughout the
process of preparing the EIS and the publication of the Advanced Notice
of Proposed Rulemaking and the proposed rule in the Federal Register.
We considered all public comments, both oral and written. We made
changes in the final rule and EIS as a result of public comment and
further review.
The Congressionally mandated purposes for managing BLM-administered
lands (public lands) include both conserving the ecosystems upon which
species depend and providing raw materials and other resources that are
needed to sustain the health and economic well-being of the people of
this Nation. To balance these sometimes conflicting purposes, we
selected the alternative that will reduce confusion that has been
evident over recent years, increase clarity, enhance administrative
effectiveness, and provide for grazing use while maintaining the health
of the land. FLPMA clearly states that the Nation's public lands are to
be managed on the basis of multiple use and sustained yield principles.
FLPMA defines BLM's mission to include livestock grazing as one of many
uses of public lands. However, FLPMA does not identify where livestock
grazing will occur and how livestock grazing operations will be
conducted. Those decisions are made during the preparation of land use
plans and more site-specific decisions, such as allotment management
plans, and through issuance of grazing permits and leases. These
regulations provide the framework for managing livestock grazing where
BLM has determined it to be an appropriate use under multiple use
principles. The regulations provide for including all practical means
to avoid or minimize environmental harm in implementing BLM's livestock
grazing program and future decisions under these regulations within the
[[Page 39410]]
context of BLM's multiple use and sustained yield mission under FLPMA.
The reasons for selecting Alternative 2 are that it--
Best meets the purpose of and need for the action, as
described in the EIS;
Amends portions of the 1995 regulations and retains the
emphasis on BLM's rangeland management objectives and the 1995
regulations to maintain and improve the health of the land;
Builds on the relationships between BLM and livestock
permittees and lessees;
Makes changes in the 1995 regulations needed to comply
with court decisions; clarifies certain provisions in the 1995
regulations that have been found to be unclear;
Is consistent with statutory requirements and national
policy; and
Is the environmentally preferable alternative for the
reasons described in the Environmentally Preferable Alternative section
of this Record of Decision.
A specific rationale for the selection of each major regulatory
amendment is discussed below. Rationale for other changes in the
regulations appears in Part V of this Preamble under Section by Section
Analysis and Response to Comments.
1. Analysis and Documentation of Social, Economic and Cultural Effects
The final rule amends paragraph (c) of section 4110.3 on changes in
grazing preference to provide that BLM will analyze and, if
appropriate, document the relevant social, economic, and cultural
effects of a proposed action. This will improve consistency when BLM
documents its consideration of social, economic, and cultural effects
of certain grazing decisions, thereby improving working relations with
permittees and lessees.
Generally, BLM managers consider the possible effects of their
decisions through the NEPA process. NEPA requires the analysis of
social, economic, and cultural effects of proposed actions. However,
the current grazing regulations are silent on the issue.
The preferred alternative adds a new provision requiring BLM to
analyze and, if appropriate, document the relevant social, economic,
and cultural effects of a proposed action before changing grazing
preference. This will ensure a consistent approach to the
decisionmaking process for those most directly affected by a decision
to change grazing preference. We did not select Alternative 1, the
continuation of the current regulations, because the regulations would
remain silent on this issue and potentially foster inconsistent
consideration of the social, economic, or cultural effects of changing
preference. Alternative 3 does not differ from the preferred
alternative.
2. Phase-in of Changes in Active Use of More Than 10 Percent
The final rule amends section 4110.3-3 on implementing changes in
active use by providing for a 5 year phase-in of changes in active use
when that change exceeds 10 percent. The rule provides that changes may
be implemented in less than 5 years by agreement between BLM and the
permittee or lessee. The preferred alternative gives BLM sufficient
discretion to handle a wide range of circumstances when changing active
use, while giving permittees and lessees additional time to make
changes in their overall business operations. Changes in active use
exceeding 10 percent are infrequent, but may create significant
disruptions for an individual permittee or lessee when they do occur.
On the other hand, as we have stated elsewhere in this preamble, if
conditions are such that phasing in changes exceeding 10 percent would
not prevent significant resource damage, or if conditions such as
drought, fire, flood, or insect infestation require that resources be
protected immediately, BLM can close allotments or portions of
allotments under section 4110.3-3(b).
The 1995 regulation amendments deleted the then existing provisions
regarding the timing of implementation of decisions to change grazing
use. In some instances, this lack of guidance has led to decisions for
full implementation of grazing reductions in a single season, resulting
in disruptions of ranching enterprises.
The preferred alternative provides that BLM will implement changes
in active use in excess of 10 percent over a 5-year period unless (1)
an agreement with the affected permittee or lessee is reached to
implement the change within a shorter period of time, or (2) the
changes must be made before 5 years have passed in order to comply with
applicable law. Prior to 1995, the regulations provided for a 5-year
implementation period that proved to be a practical interval for
implementing changes. The phase-in should help permittees and lessees
to avoid sudden adverse economic effects resulting from a reduction by
allowing time to plan livestock management changes such as in herd
size. The total number of allotments affected by the preferred
alternative is expected to be small, because only 16 percent of the
allotments evaluated during the last 5 years needed adjustments in
current livestock grazing management. See Section 4.3.1 of the EIS.
Most of these adjustments have been made in the season of use, or in
movement and control of livestock, rather than in active use. Finally,
the rule retains provisions for immediate, full implementation of a
decision to adjust grazing use if continued grazing use poses an
imminent likelihood of significant soil, vegetation, or other resource
damage.
We did not select Alternative 1, the continuation of existing
regulations, because the 1995 regulations were silent regarding the
timing of implementation of decisions to change grazing use. If, for
example, a permittee or lessee challenged full implementation of a
grazing reduction, appealed the decision, and was granted a stay of the
decision by IBLA, then implementation of the grazing decision would be
delayed. Until the appeal is resolved, grazing would continue at
greater levels than are desirable, and delaying implementation of
necessary changes. The ability to phase in changes may help avoid
appeals and stays, thus improving administrative efficiency.
We did not select Alternative 3, which would have made the 5-year
phase-in discretionary, because we felt that additional discretion was
not warranted when considering the small number of allotments that
would be affected. Since the rule retains provisions for immediate,
full implementation of a decision to adjust grazing use, we believe the
provision for phase-in of changes, coupled with the resulting improved
cooperation with permittees and lessees, will result in greater
efficiency and improved resource conditions in the long-term.
3. Sharing Title to Permanent Range Improvements
The final rule amends section 4120.3-2 on cooperative range
improvement agreements by providing for shared title of permanent range
improvements. Sharing title between cooperators and BLM allows
operators to maintain some asset value for investments made, improving
working relationships and encouraging private investment in range
improvements.
In 1995, the regulations were revised to provide that permittees
and lessees do not share title with the United States. BLM's data
indicate that construction of range improvements has declined since
that rule change. The 1995 rule change is one among several factors
that may have contributed to the decline. The preferred alternative
provides that BLM and cooperators share title to permanent
[[Page 39411]]
structural range improvements in proportion to their contribution to
on-the-ground project development and construction costs.
Private investment in range improvements may lead to better overall
watershed conditions and improved wildlife habitat. BLM believes this
will be the case because allowing shared title to range improvements
provides an opportunity for permittees and lessees to document
investment in their business enterprises, which is useful for securing
business capital and demonstrating the value of their overall private
investment in public and private lands. Permittees and lessees perceive
this recognition of investment as crucial to their business, and
therefore as an important factor when considering personal investment
in range improvements. Most existing and, since 1995, all new permanent
structural range improvements are implemented through Cooperative Range
Improvement Agreements that include provisions to protect the interest
of the United States in its lands and resources and ensure BLM's
management flexibility on public lands.
We did not select Alternative 1, which does not allow shared title
of range improvements, because it did not contain any incentive for
private investment on public lands or recognize the contributions made
by permittees and lessees. This lack of recognition of investments may
have contributed to the substantial drop in construction of new range
improvement projects following the removal of shared title provision in
the 1995 rule. Alternative 3 does not differ from the preferred
alternative.
4. Cooperation With Tribal, State, County, or Local Government-
Established Grazing Boards
The final rule amends section 4120.5-2 on cooperation with Tribal,
state, county, and Federal agencies by adding a requirement to
cooperate with Tribal, state, county, or local government-established
grazing boards for purposes of reviewing range improvement and
allotment management plans. This will improve our cooperative
relationship with government-established agencies and boards. The
changes also comply with Executive Order 13352 of August 26, 2004 (69
FR 52989), on Facilitation of Cooperative Conservation.
State and local grazing interests had expressed concern that BLM
has not used existing established grazing advisory boards effectively.
Grazing board review and input, to the extent consistent with the
applicable laws of the United States, will help us consider how to
apply land management practices and spend range improvement funds.
Cooperation with grazing boards, where they exist, will benefit BLM
land managers because the boards can contribute resource-related
information from local subject matter experts, thus increasing our
ability to develop appropriate strategies for managing grazing
allotments and developing range improvements. This provision is
consistent with section 4120.5-1, which requires cooperation, to the
extent appropriate, with all groups and individuals, including Tribal
entities, to achieve the objectives of grazing management. These
locally established grazing boards, where they exist, would be a
valuable tool for gathering additional local input for BLM's
decisionmaking processes and would help satisfy the FLPMA Section
401(b)(1) provision that calls for BLM to consult with local user
representatives when considering range rehabilitation, protection, and
improvement actions.
We did not select Alternative 1, which did not require cooperation
with grazing boards, because we want to encourage and institutionalize
participation by these grazing boards when we are preparing range
improvement or allotment management plans, to ensure a consistent,
cooperative approach. Alternative 3 does not differ from the preferred
alternative.
5. Removal of Temporary Nonuse Limit
The final rule moves the provisions on temporary nonuse from
section 4130.2(g) to section 4130.4 on authorization of temporary
changes in grazing use within the terms and conditions of permits and
leases including temporary nonuse, and amends this section by removing
the 3-consecutive-year limit on temporary nonuse. The agency needs the
flexibility to authorize temporary nonuse on an annual basis so that it
may adapt its management to the needs of the resources as well as the
resource user. This flexibility will improve working relationships with
permittees and lessees and provide another tool to protect the health
of rangelands.
Prior to the 1995 regulatory change, a permittee or lessee could
apply for temporary nonuse of all or a portion of his active grazing
use, and there was no restriction on the number of consecutive years of
nonuse. The 1995 rules established provisions for ``conservation use,''
which provided an alternative to annually authorized nonuse and
introduced a 3-consecutive-year limit on temporary nonuse. However, a
1999 court ruling determined that BLM did not have authority to issue
conservation use permits, resulting in a regulatory framework that
limits BLM's authority to approve temporary nonuse to 3 consecutive
years.
Temporary nonuse is one of the most efficient means BLM has at its
disposal to facilitate nonuse when drought, wildfire, or other episodic
events dictate nonuse. The 3-consecutive-year limit on temporary nonuse
restricts BLM's ability to respond to resource conservation,
enhancement, or protection needs, or the personal or business needs of
the permittee or lessee. Even if BLM believes that resources would
benefit and would like to approve nonuse, we are prevented from using
temporary nonuse after 3 years and forced to use alternative authority.
The removal of the limitation on temporary nonuse in the preferred
alternative provides regulatory flexibility for responsible and
responsive rangeland management.
We did not select Alternative 1 or 3 because they restricted
temporary nonuse to 3 or 5 consecutive years, respectively. We believe
that there should be no rigid limit on the number of consecutive years
of nonuse for reasons of resource conservation, enhancement, or
protection (as opposed to nonuse for business or personal reasons).
There may be times when nonuse is justified for longer than 5 years,
which BLM will determine based on monitoring and standards assessment
on a year-to-year basis.
6. Requiring Assessment and Monitoring for Determinations on Standards
and Guidelines
The final rule amends section 4180.2 on standards and guidelines
for grazing administration to provide that BLM will use standards
assessment and monitoring data to support a determination that existing
grazing management or levels of use are significant factors in the
failure to meet standards or conform to guidelines. If a standards
assessment indicates to the authorized officer that the rangeland is
failing to achieve standards or that management practices do not
conform to the guidelines, then he will use relevant monitoring data to
identify the significant factors contributing to the failure to achieve
the standards or to conform with the guidelines. The preferred
alternative will protect the health of the rangeland and improve
working relations with permittees and lessees because determinations on
the causes of failure to meet a standard will be based on monitoring
and assessment data, thus helping to ensure
[[Page 39412]]
comprehensive and sustainable decisions.
Many members of the public articulated a strong interest in BLM's
monitoring program, and expressed concern about the adequacy of data
used to support our decisions and determinations. Some individuals are
under the impression that BLM supports determinations with a one-time
assessment of rangeland conditions. Current regulations do not specify
the methods to be used to analyze and evaluate rangeland conditions.
However, guidance exists in policy in BLM Manual Section 4180 and
Handbook H-4180-1.
Raising the issue of monitoring from the policy level to the
regulatory level will help BLM to focus monitoring efforts in those
areas with critical resource issues, as disclosed by standards
assessments. Under the preferred alternative, monitoring will not be
necessary on every allotment in order to make a determination, but only
on those allotments that fail to meet standards or conform with
guidelines due to levels of grazing use or management practices. By the
end of Fiscal Year 2002, BLM had determined that about 16 percent of
the 7,437 allotments evaluated were not meeting land health standards
because of existing livestock grazing management. Since these
assessments were first focused on areas with known problems, it is
reasonable to assume that the proportion of allotments not likely to
meet standards because of livestock grazing management practices or
levels of use in the future will not exceed 16 percent. Thus, at a
maximum, the preferred alternative may require monitoring data to
support 16 percent of the future determinations. We expect to have
appropriate monitoring data to support a significantly larger
proportion of our determinations, regardless of whether or not they
involve a finding of failure to meet standards due to livestock
grazing. While BLM cannot control the number of appeals or lawsuits
resulting from grazing decisions, we believe ensuring sufficient
monitoring will reduce the number of instances where appropriate action
is delayed because of protracted administrative and judicial processes.
We did not select Alternative 1 because it left the regulations
unchanged, that is, silent on the basis for supporting a determination.
We did not select Alternative 3 because it required determinations to
be supported by either standards assessments or monitoring, not both.
Neither of these alternatives is responsive to the concern about
monitoring data, and neither provides the level of assurance desired
that critical management decisions would be based on appropriate
monitoring data.
7. Time Frame for Taking Actions
The final rule amends sections 4180.1 and 4180.2(c). These sections
cover fundamentals of rangeland health, and standards and guidelines
for grazing administration, respectively. We have removed the language
in section 4180.1 of the proposed rule that would have required, for
those areas where state or regional standards and guidelines have not
been established and where conditions described by the fundamentals of
rangeland health do not currently exist, that BLM modify grazing
practices before the start of the next grazing year that follows BLM's
completion of mandatory procedural and consultation requirements.
However, the fundamentals themselves remain as approved in 1995.
Section 4180.2(c) was amended to allow BLM adequate time (up to 24
months) for cooperative formulation, proposal, and analysis of
appropriate management actions when we determine that changes in
current management are necessary to ensure progress towards achieving
standards and conforming with guidelines. Allowing additional time for
this process will help improve the health of rangelands, because
cooperatively-developed management actions based on reasoned analysis
have a greater likelihood of successful implementation, and yield long-
lasting resource benefits.
The preferred alternative for section 4180.1 is Alternative 2 in
the EIS. It would have directed the authorized officer to modify
grazing management if BLM determined that conditions described by the
fundamentals of rangeland health do not currently exist because of
current grazing practices, but only where standards and guidelines have
not been established. However, as a result of comments and
implementation experience, we are adjusting the proposed action to
achieve a better reflection of the relationship between the
fundamentals and the standards and guidelines. The regulatory provision
for adjusting management to ensure progress towards rangeland health
would be in section 4180.2 rather than both sections 4180.1 and 4180.2.
While BLM still must take appropriate action to remedy grazing
management practices that are detrimental to rangeland health, now the
final rule allows time for cooperative formulation, proposal, and
analysis of appropriate management actions prior to their
implementation.
As explained in the 1995 final rule, the ``fundamentals will guide
BLM in the development of plans for public lands and in the
authorization of grazing related activities consistent with the
provisions of FLPMA and TGA, that lead toward or maintain healthy
sustainable rangelands.'' 60 FR 9954. The 1995 rule further explained
the broad nature of the fundamentals: ``[F]undamentals are statements
of the conditions that are representative of healthy rangelands across
the West, and as such, are relatively broad * * *.'' Id. The
fundamentals, therefore, reflect goals that may be incorporated into
land use plans. With respect to grazing, the 1995 rule explained
specifically that the ``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.'' Id. In essence, the
``overarching principles'' set forth in the fundamentals were to be
supplemented by standards and guidelines tailored to more local
conditions.
Although the 1995 rule established requirements for ``appropriate
action'' when either the fundamentals or established standards and
guidelines were not being met due to existing grazing, we believe
requiring ``appropriate action'' in both circumstances is unnecessary
and inefficient. Standards and guidelines have been developed in
conformance with the fundamentals and adopted for all states and
regions except southern California. These standards and guidelines
provide the basis for the application of the broadly stated
fundamentals to the management of public lands. In southern California,
the fallback standards and guidelines provide for the application of
the fundamentals to those public lands. This means that, in the
California Desert District, the fallback standards and guidelines will
be applied until standards and guidelines for the District are
developed and approved, so that requiring BLM action under section
4180.1 is unnecessary.
On all other public lands, the standards and guidelines provide
specific measures for achieving healthy rangelands within the framework
of the broad fundamentals. Therefore, a duplicate administrative
mechanism to require ``appropriate action'' under the fundamentals is
unnecessary. Further, as previously noted, the fundamentals are broad
concepts that describe healthy rangelands. Because the standards and
[[Page 39413]]
guidelines are more specific, they lend themselves to determining
whether the ecosystem functions and processes as described by the
fundamentals are in fact occurring, and to communicating achievement
status in a way that the fundamentals do not. For this same reason, the
standards also lend themselves to enforcement in a way that the
fundamentals do not. Finally, we believe that removing the
``appropriate action'' requirement under the fundamentals will better
enable authorized officers to focus on the implementation of the
standards and guidelines, which we in turn expect to result in more
efficient implementation of decisions that will maintain healthy
rangelands.
The 1995 regulations sought to implement timely and responsive
remedial action when BLM determines that existing practices are
significant factors in failing to achieve standards and conform to
guidelines. However, in practice, the requirement to take action
``before the start of the next grazing year'' has proven to be
impracticable, often allowing BLM considerably less than a year to
begin action. If BLM determines in October, for example, that an
allotment failed a standard due to grazing management, in many cases
only 4 months would be available before the typical March begin date
under current regulations to develop new management alternatives before
the beginning of the next grazing year for that allotment. This
restricted time frame has made it difficult or impractical to implement
decisions, and has damaged working relationships with permittees and
lessees. If a common allotment with several permittees or lessees does
not meet a standard because of current grazing practices, and numerous
public land users wish to participate in the formulation of remedial
management actions, the time frame for reaching consensus may be
lengthy. In these instances it is very difficult to develop and
implement appropriate action before the next grazing year. Further,
failing to meet the deadline in one case opens the involved BLM office
to legal action, to which resources and personnel must be devoted,
diminishing that office's ability to meet the deadline in all cases,
possibly leading to a snowballing effect as litigation mounts.
During the formulation, proposal, and analysis of appropriate
action, several steps are necessary to develop sustainable management
strategies that will yield long-term improvements in rangeland health.
Adequate time is needed to obtain comment and input from permittees,
lessees, states and the interested public on reports that are used as
bases for making decisions to modify permits or leases, or otherwise to
consult and cooperate with permittees, lessees, states, and Tribes; to
carry out consultation with the Fish and Wildlife Service (FWS) or the
National Oceanic and Atmospheric Administration (NOAA Fisheries), or
both, under Section 7 of the ESA, 16 U.S.C. 1536; and to complete
analysis and documentation required by NEPA.
The preferred alternative for section 4180.2(c) establishes a more
reasonable time frame within which BLM must take appropriate action if
we determine that existing grazing management or levels of use are
significant factors in the failure to meet standards or do not conform
with guidelines. Generally, under the final rule, BLM must develop
appropriate action as soon as practicable but not later than 24 months
after the determination and then implement that action no later than
the start of the next grazing year.
The final rule at section 4180.2(c) has been amended between the
proposed and final rule. It now includes a provision extending the
deadline for developing appropriate action if legally required
processes that are the responsibility of another agency prevent
completion within 24 months. For example, if an ESA Section 7
consultation is required, it may be difficult to complete the process
within the 24-month time frame.
This extended deadline will allow BLM to fulfill all required legal
obligations and should result in more sustainable and effective
decisions. Taking time at this stage of the process, and involving
those most directly affected by BLM decisions, to propose, formulate,
and analyze appropriate actions will save time in the future by
reducing the likelihood of appeals and litigation that may occur as a
result of hastily prepared management actions.
We did not select Alternative 1 because the 1995 regulations did
not provide enough time to formulate and analyze management
alternatives and complete all consultation and documentation
requirements. Alternative 3 in this respect was the same as the
proposed action.
8. Conservation Use
The final rule amends several sections of the regulations by
removing all reference to conservation use and authority to issue
conservation use permits. This affects sections 4110.0-5 Definitions,
4120.3 Range improvement permits, 4130.2 Grazing permits or leases,
4130.5 Free use grazing permits, 4130.8 Service charges, 4140.1
Prohibited acts. The1995 regulations allowed BLM to issue
``conservation use'' permits for the purpose of protecting the land,
improving rangeland conditions, or enhancing resource values. This
authority was challenged in court, resulting in a ruling that BLM did
not have authority to issue permits exclusively for conservation
purposes. By removing conservation use references from the final rule
we are bringing the regulations into compliance with the court's
holding.
We did not select Alternative 1 because it proposed to leave the
conservation use authority in the regulations. Alternative 3 does not
differ from the preferred alternative.
9. Definition of Preference, Active Use and Removal of Permitted Use
The final rule revises the definition of ``preference'' and
``active use'' in section 4110.0-5 on definitions, and removes the term
``permitted use'' from the rule. Where it occurred in the rule, the
term ``permitted use'' has been replaced by either ``preference,''
``grazing preference'' or ``active use,'' depending on the regulatory
context. These amendments make the definition of ``preference'' similar
to the meaning first formally promulgated in 1978. Elimination of the
concept of ``conservation use'' made necessary the revision of the
definition of ``active use.'' These changes will provide a consistent
framework for the efficient administration of public lands.
The definition of ``preference''--along with the synonymous term
``grazing preference''--has been revised to include the total number of
AUMs attached to base property, including active use and use held in
suspension. The definition also retains the meaning of a priority
position for the purposes of receiving a grazing permit or lease.
In 1978, BLM formally defined ``grazing preference'' to mean the
total number of AUMs of livestock grazing on public lands apportioned
and attached to base property owned or controlled by a permittee or
lessee. Grazing preference represented a specific portion of forage out
of all the vegetation that a land use plan determined to be available
for livestock. The 1995 rule introduced some inconsistencies in the
regulations by creating the term ``permitted use'' to mean the forage
allocation, and narrowing the definition of ``preference'' to mean only
a priority position as against other applicants for forage. For
example, the regulations provide that an application to transfer
preference shall describe the ``extent'' of the preference being
transferred. This usage does not comport with the concept that
[[Page 39414]]
preference is a singular ``priority position,'' but rather, that it can
be expressed in terms of its ``extent'' or quantity. Also, the current
definition of ``permitted use'' is in some cases not appropriately used
in the regulations. For example, even though permitted use encompasses
``suspended use'' and ``active use,'' the regulations state that
failure to make substantial use of the ``permitted use'' authorized by
the grazing permit or lease shall give BLM cause to take action to
cancel whatever amount of ``permitted use'' the permittee has failed to
use. This is paradoxical as ``suspended use'' is by definition not
currently available for grazing use.
In the preferred alternative, the re-revised definition of grazing
preference is once again consistent with its longstanding meaning--a
meaning that was in formal usage for 17 years before it was changed by
the 1995 grazing regulations. The definition is also consistent with
how the term ``preference AUM's'' was informally used before 1978.
Attaching a forage allocation to base property provides a reliable way
to associate ranch property transactions with the priority for use of
public land grazing privileges. This has been a foundation of BLM's
system for tracking who has priority for those grazing privileges since
the enactment of the TGA.
In revising the definition of ``preference,'' this final rule seeks
to reinstate a familiar method of identifying the total number of AUMs
apportioned and attached to base property. Preference includes both
active use and use held in suspension. This definition of
``preference'' does not override the requirement that livestock forage
allocations be made within a multiple use context as set forth in land
use plans. The proposed definition should not be erroneously construed
to imply that satisfying a permittee's or lessee's livestock forage
allocation (his preference) has the highest priority when BLM employs
land use planning or activity planning processes to determine the
appropriate combination of resource uses on BLM-administered lands.
Since 1995, ``active use'' has meant ``current authorized use,
including livestock grazing use and conservation use.'' BLM must remove
conservation use from the definition because of a court ruling that BLM
could not issue permits exclusively for conservation purposes. In the
final rule the term ``active use'' is the amount of forage that is
available for grazing use under a permit or lease based on rangeland
carrying capacity and resource conditions in an allotment.
Permitted use was introduced as a term in the 1995 regulations to
define an amount of forage allocated by a land use plan for livestock
grazing. It is expressed in terms of AUMs and includes ``active use''
and ``suspended use''. Since we have revised the definition of
preference to include this same livestock forage allocation, the term
is no longer necessary.
We did not select Alternative 1 because the definition of
preference would have remained simply a priority position to receive a
grazing permit or lease, a definition that was inconsistent with
traditional usage of the term which identified the total AUMs attached
to specific base property. The definition of active use would have
remained unchanged and inconsistent with the need to remove
``conservation use'' from the regulations. Alternative 3 does not
differ from the preferred alternative.
10. Interested Public
The final rule amends sections 4100.0-5 Definitions, 4110.2-4
Allotments, 4110.3-3 Implementing changes in active use, 4130.2 Grazing
permits and leases, 4130.3-3 Modification of permits or leases, and
4130.6-2 Nonrenewable grazing permits and leases, in order to
streamline the role of the interested public. These changes should
foster increased administrative efficiency by focusing the role of the
interested public on planning decisions and reports that influence
daily management, rather than on daily management decisions themselves.
Under the existing regulations, any person or group may obtain
``interested public'' status simply by requesting that status for a
specific allotment in writing or by submitting a written comment on the
management of livestock grazing on a specific allotment. Members of the
interested public are mailed, at government expense, documents related
to decisions on a particular grazing allotment. BLM must also consult,
cooperate, and coordinate with members of the interested public on a
host of decisions. The interested public provides valuable input, but
some of those who have enlisted as interested public rarely, if at all,
participate in the decisionmaking process. Others have obtained
``interested public'' status for numerous allotments, but only
participate in the decision-making process for a select few.
Additionally, management actions that now require consultation,
cooperation, and coordination with the interested public include common
management operations, such as the renewal or modification of
individual permits, that are preceded by grazing decisions describing
the management action to be implemented. These decisions are made
available, with right of protest and appeal, to the interested public.
Moreover, while formulation of grazing management decisions can greatly
benefit from consultation with the interested public, we have found
that consultation requirements for actions that implement those
decisions and are intended to achieve the resource management goals set
forth in those decisions are unnecessarily duplicative. These
consultation requirements can slow our ability to act promptly to
further those goals when necessary to respond to changing range
conditions or transitory management circumstances. Clerical demands
associated with maintaining non-participating members of the interested
public also divert limited BLM resources from other valuable uses.
The final rule has amended the definition of ``interested public''
so that one must actually participate in the decisionmaking process in
order to maintain interested public status. This change should improve
administrative efficiency by allowing BLM to purge the names of
nonparticipating persons from its interested public lists. The
regulations have also been amended to remove consultation, cooperation,
and coordination requirements from the following decisions: (1)
Adjustments to allotment boundaries (section 4110.2-4); (2) changes in
active use (section 4110.3-3(a)); (3) emergency allotment closures
(section 4110.3-3(b)); (4) issuance or renewal of individual permits or
leases (section 4130.2(b)); and (5) issuance of nonrenewable grazing
permits and leases (section 4130.6-2). In adopting these changes, BLM
has attempted to balance the important role of the interested public
with the need for prompt decisionmaking on day-to-day management
issues. Thousands of these decisions are made annually by BLM. Actions
are guided by broader decisions (such as allotment management plans)
and monitoring and other reports as to which the interested public will
continue to have an opportunity to review and provide input. In
addition, prior to considering any on-the-ground action, BLM must
determine whether the proposed action conforms to the applicable land
use plan. If a proposed action does not conform to the land use plan, a
land use plan amendment must be completed before BLM can further
consider the proposed action. The
[[Page 39415]]
public is assured involvement in the land use planning process.
We expect the changes in the definition and role of the interested
public in the grazing program to improve administrative efficiency and
lead to more timely decision making. It is BLM's expectation that this
increased efficiency and faster reaction time will ultimately benefit
overall rangeland health. Also note that these changes do not affect
public participation opportunities available through the NEPA
environmental analysis process, in administrative appeals of grazing
decisions, or, to the extent practicable, in the preparation of reports
and evaluations.
After publishing the Final EIS in June 2005, BLM proposed two
categorical exclusions (CX) for issuing grazing permits (71 FR 4159,
January 25, 2006). One of the proposed exclusions is for issuing
grazing permits in general, and the other is for issuing nonrenewable
permits. As proposed, the CXs would be limited to grazing permits where
land health standards have been assessed and evaluated and the
authorized officer has documented that the standards are achieved, or
if not achieved, that livestock grazing is not a causal factor; and to
permits issued as a result of administrative action such as changing
the termination date or the name of the permittee, and where none of
the 12 extraordinary circumstances listed in Appendix 2 of Departmental
Manual 516 apply. If the CXs are approved, the public would continue to
have opportunity to participate in the grazing permitting process on
those allotments that qualify for a CX--
Through the development of Resource Management Plans and
activity plans (section 4120.2),
Before a decision is made to increase a permittee s forage
allocation (section 4110.3-1(c)),
To the extent practicable in the preparation of reports
and evaluations that are used to support modifications of grazing
permits and leases (section 4130.3-3(b)), and
In protests and administrative appeals of grazing
decisions (subpart 4160).
We did not select Alternative 1, the continuation of existing
regulations, because BLM's view is that those who become ``interested
public'' oblige themselves to participate in the process that leads to
a decision affecting management of the allotment(s) in which they are
interested, and Alternative 1 does not provide for this. BLM has noted
that in some cases, interested public who have been provided
consultation opportunities regarding management of grazing on a
specific allotment have failed to participate, but then file, in a
relatively generic format, a protest and/or appeal of the final
decision--which BLM then must address through a formal administrative
process. BLM believes that it is appropriate to provide that those who
forfeit their opportunities for participation in the processes leading
up to the decision then also forfeit their opportunities to contest the
decision after it is issued. BLM has noted that in other cases, some
interested publics use the consultation opportunities provided to them
as a forum for their advocacy of a particular position that has little
direct bearing on issues at hand with respect to management of a
specific allotment. The primary purpose for BLM allowing participation
by the interested public in its grazing decision making process is to
obtain specific insights regarding specific management on specific
allotments. Such interested public participation opportunity is not
intended to serve as a forum for espousing general opposition (or
support) regarding programs and policies of the United States
Government. For this and other reasons, the interested public
provisions have proven costly to implement, have decreased
administrative efficiency, and have, at times, hindered the
administration of daily grazing management. Alternative 3 did not
differ from the preferred alternative.
11. Water Rights
The 1995 rule added section 4120.3-9 on water rights. In simplified
form, it provides that if livestock water rights are acquired under
state law, they shall be acquired, perfected, and maintained in the
name of the United States to the extent allowed by the pertinent state
law. The final rule revises the section by limiting its applicability
to water rights acquired by the United States and by removing the
language stating that the water rights shall be acquired, perfected,
and maintained in the name of the United States to the extent allowed
by the applicable state law. Removal of this requirement will clarify
BLM's flexibility in seeking water rights, and in pursuing
administrative options including joint ownership of water rights with
permittees or lessees.
Although the 1995 Federal Register preamble to the rule change
stated that joint ownership of water rights was consistent with the
regulations, some interpreted the provision to exclude cooperatively
held water rights on public lands. Many water rights are currently held
by permittees or lessees, or jointly owned with BLM. We have not seen
evidence in these instances that a permittee or lessee holding a water
right discourages cooperation or compliance with terms and conditions
of grazing permits or complicates land exchanges.
The preferred alternative retains the requirement that BLM follow
the substantive and procedural laws of the state when acquiring,
perfecting, maintaining, and administering livestock water rights on
public lands. This language makes it clear that, within the scope of
state processes, BLM may seek co-ownership of water rights with
permittees and lessees or, in certain circumstances, agree that
permittees and lessees own the water rights. BLM continues to have the
option of acquiring an exclusive water right as long as we do so in
compliance with state water law. States assign water rights under
different state laws, regulations, and policies. The flexibility
afforded by the preferred alternative will facilitate BLM's ability to
administer grazing permits and leases in varied circumstances.
We did not select Alternative 1 because it retained the wording in
the 1995 regulation, which decreases BLM's flexibility to obtain
livestock water rights to an extent that is less than that allowed
under state law when BLM deems it desirable to do so. We believe that
the preferred alternative best provides BLM with the flexibility to
seek water rights appropriate to the circumstances. Alternative 3 does
not differ from the preferred alternative.
12. Satisfactory Performance of Applicants
The final rule amends section 4130.1-1, on filing applications, to
clarify the requirements for satisfactory performance of a permit or
lease applicant. Portions of the existing section 4110.1 on mandatory
qualifications were moved to section 4130.1-1 and amended. These
changes should provide applicants with a clearer statement of BLM's
expectations, improving working relationships and increasing
administrative efficiency.
The existing regulations at section 4110.1(b)(2) list 3 situations
where an applicant for a new permit would ``be deemed not to have a
record of satisfactory performance.'' The regulation thus implied that
more situations could lead to an unsatisfactory performance
determination, but it did not specify further criteria. This produced
some confusion among applicants, and it also led to some inconsistent
application of this regulation within BLM. The final rule corrects this
situation by stating
[[Page 39416]]
that an applicant will be deemed ``to have a record of satisfactory
performance'' when the applicant (1) has not had a Federal grazing
permit or lease canceled for a violation, (2) has not had certain state
grazing permits or leases canceled, or (3) has not been barred from
holding a grazing permit or lease by a court. The 3 criteria remain
essentially unchanged from the existing section 4110.1(b)(2). By
stating the provision in a positive way, however, we make it clear that
applicants have a satisfactory record of performance unless they fail
to meet one of these criteria.
Other portions of existing section 4110.1 related to applications
for renewal were also moved but not modified.
Alternative 1, the continuation of the existing regulations, was
not adopted because: (a) Satisfactory performance requirements are more
appropriately addressed in the section of the regulations that
addresses to whom BLM will issue a grazing permit or leases, rather
than the section of the regulations that addresses who is qualified for
grazing use on public lands; and (b) BLM intends that satisfactory
performance requirements be clearly and unequivocally based on matters
directly related to livestock grazing and not be based on violations of
laws and regulations that may have no bearing on the potential ability
of the applicant to manage grazing successfully under a BLM grazing
permit or lease. This is consistent with the intent expressed by the
Department when the regulations were first promulgated in 1995 that
permittees be good stewards of the land (60 FR 9926), but sharpens the
rule's focus on grazing lands. Alternative 3 did not differ from the
preferred alternative.
13. Temporary Changes in Grazing Use Within the Terms and Conditions of
Permit or Lease, Including Temporary Nonuse
The final rule amends section 4130.4 on authorization of temporary
changes in grazing use within the terms and conditions of a permit or
lease, including temporary nonuse, by defining the phrase ``temporary
changes in grazing use within the terms and conditions of the permit or
lease.'' Under existing regulations, this phrase is not defined. The
clarification associated with this change should improve administrative
efficiency.
Most permits or leases include a period of use described by
specific dates. These dates do not always account for the natural
fluctuations that can lead to forage availability outside the listed
dates. Existing regulations allow for temporary changes but this
authority has, at times, been applied inconsistently within BLM. The
new definition clarifies the amount of flexibility BLM authorized
officers will have when considering temporary changes. Under the new
definition, a temporary change can be made to the livestock number and/
or period of use. Temporary changes cannot result in the removal of
more forage than the ``active use'' specified by the permit or lease.
Neither can a temporary change authorize grazing earlier than 14 days
before the grazing start date or later than 14 days after the grazing
end date specified in the permit or lease, unless an allotment
management plan under Sec. 4120.2(a)(3) specifies different
flexibility limits. This change will help ensure consistent application
across BLM.
We did not select Alternative 1, the continuation of existing
regulations, because of the inconsistent application associated with
the current regulations. Alternative 3 did not differ from the
preferred alternative in this regard.
14. Service Charges
The final rule amends section 4130.8-3 on service charges in order
to reflect more accurately the current costs of processing and,
thereby, contribute to administrative efficiency. Editorial
modifications have also been made to remove a reference to
``conservation use,'' a term that has been removed from the regulations
generally, and provide for increased clarity.
Current service charges are $10 for issuing a crossing permit,
transferring grazing preference, or canceling and replacing or issuing
a supplemental grazing fee bill. These charges are well below BLM's
actual processing costs. The preferred alternative increases service
charges to reasonable levels that capture more of the actual cost of
processing. The change complies with section 304(a) of FLPMA, 43 U.S.C.
1734(a), where reasonable charges are authorized. The newly effective
charges are $75 for a crossing permit; $145 to transfer grazing
preference; and $50 to cancel and replace or to issue a supplemental
grazing fee billing. These new charges are subject to later
modifications through public notice in the Federal Register.
We did not select Alternative 1, continuation of the existing
regulations, because those regulations contain a reference to
``conservation use'' that should be removed for consistency within
these regulations. Under existing regulations service charges could
still be adjusted through a Federal Register notice, but it is
efficient to make these initial changes in this well-publicized rule.
This technique has allowed for extensive public input on the issue.
Alternative 3 did not differ from the preferred alternative as to this
matter.
15. Prohibited Acts
The final rule modifies section 4140.1 on acts prohibited on public
lands in order to reduce ambiguity and contribute to administrative
efficiency. Some minor editorial modifications have also been made. The
preferred alternative maintains the 3 sets of prohibited acts present
in the existing grazing regulations.
The first set, section 4140.1(a), addresses various grazing-
specific violations made by a permittee or lessee. The final rule
clarifies that supplemental feed placed contrary to the terms and
conditions of the permit or lease is a violation. The existing rule
states only that supplemental feed placed ``without authorization'' was
a violation, and this has produced some confusion among permittees,
lessees, and BLM personnel. The added language clarifies that
supplemental feeding made contrary to permit or lease terms and
conditions is a violation even if the permittee or lessee is authorized
to undertake some level of supplemental feeding.
The second set of prohibited acts, section 4140.1(b), applies to
all persons performing acts on all BLM lands, not just permittees and
lessees. The preferred alternative clarifies that the prohibited
activity listed in the second set must occur on ``BLM-administered
lands.'' The existing phrase ``related to rangelands'' created
confusion. The rule clarifies that it is a prohibited act to graze
without a permit, lease, or other grazing use authorization. The
amended language accounts for situations where BLM allows grazing
through authorizations other than a term permit or lease, such as a
crossing permit. Also, the final rule clarifies that grazing fees must
be paid in a timely manner to avoid violating these regulations. Thus,
this section provides, among other things, useful authority to
encourage timely payment of grazing fees.
The third set of prohibited acts, section 4140.1(c), pertains to
violations of certain Federal or state laws or regulations. The final
rule now clarifies that the section applies to prohibited acts
performed by a permittee or lessee ``on the allotment where he is
authorized to graze.'' This replaces ambiguous language that stated the
provision applied to acts ``where public land administered by the [BLM]
is involved or affected [and] the violation
[[Page 39417]]
is related to grazing use authorized by a permit or lease issued by the
[BLM].'' Few actions on lands outside the grazer's authorized allotment
could have triggered a violation under the existing language. The
existing language created confusion regarding its scope while providing
BLM with little useful authority. The more precise language of the
final rule will be more understandable and improve the efficiency with
which this regulation can be enforced. Violations of statutes or
regulations on non-allotment lands will continue to be subject to the
normal penalties available under those authorities, regardless of
whether the violations are related to grazing use.
We did not select Alternative 1, the continuation of existing
regulations, due to the presence of the ambiguity previously discussed.
Alternative 3, the Modified Action alternative, proposed two provisions
that differed from the Proposed Action. The first provision would have
required the use of weed seed-free forage, grain, straw, or mulch when
required by the authorized officer. We did not include the provision at
this time as we are still developing a nationwide weed-free policy for
public lands. The second provision would have deleted the third
category of prohibited acts, those pertaining to violations of certain
Federal and state laws or regulations, from the regulations. Although
relatively few violations have been documented, BLM believes this
category serves a deterrent purpose and has chosen to retain it.
16. Decisions on Ephemeral or Annual Rangeland Grazing Use and
Nonrenewable Permits
The final rule amends section 4130.6-2 on nonrenewable grazing
permits and leases by adding a new paragraph (b) allowing BLM to make a
decision issuing a nonrenewable grazing permit or lease, or affecting
an application for grazing use on annual or designated ephemeral
rangelands, effective immediately or on a date established in the
decision. The final rule has removed language from existing section
4160.3(d) on final decisions that described the effect of an
administrative stay on decisions related to designated ephemeral or
annual rangelands and temporary nonrenewable grazing. The ability to
make decisions on nonrenewable grazing permits and leases, or ephemeral
or annual rangelands grazing use, effective immediately on a date
established in the decision under final rule section 4130.6-2(b) has
largely eliminated the need for any special stay provisions. These
changes should improve administrative efficiency and effectiveness by
allowing faster responses to time-sensitive requests and clarify
compliance with legal requirements.
The existing regulations at section 4160.3(d) state that when OHA
stays a decision regarding designated ephemeral or annual rangeland
grazing ``the authorized grazing use shall be consistent with the final
decision pending'' the final determination on the appeal. In addition,
under the existing regulations a decision shall not be in effect for a
30-day period during which an appeal may be filed, and for an
additional 45-day period if a petition for stay is filed. This creates
a problem where the decision is to grant (rather than deny) the
application for nonrenewable use, or use on ephemeral or annual ranges,
because in some cases the forage quality rapidly declines and loses its
nutritional value during this combined 75-day waiting period. Thus, a
simple appeal of a decision to grant an application for use of
ephemeral or annual rangeland, or for temporary and nonrenewable use,
can render both the application and approval futile for the purpose
intended, namely, to use available forage to provide nutrition for
livestock. BLM considers this to be a procedural flaw.
When BLM grants an application for temporary and nonrenewable use,
or use on annual or ephemeral ranges, this indicates that BLM has
evaluated the merits of the application and has determined that such
use would be consistent with achieving resource management objectives
specified in land use plans. BLM intends that the simple act of an
appeal alone, with nothing more, should not render both the application
and approval an exercise in futility.
The proposed rule addressed this 75-day waiting period issue by
placing language similar to that in existing section 4160.3(c) into
section 4160.4(c) on appeals. However, in response to comments from
OHA, this section has now been removed from the final rule. Instead,
BLM may now issue nonrenewable permits as immediately effective
decisions under section 4130.6-2(b). This change will allow time-
sensitive decisions on forage to be made and immediately put into
practice, without waiting up to 75 days. If that decision to authorize
the use is appealed and a stay is granted, the decision would be
inoperative and livestock would have to be removed. In the alternative,
if the decision is appealed and a stay is denied, the appellant would
have the option of seeking an injunction of the application approval in
Federal court. In either case, an appellant would be required to show
why it would have a reasonable chance of prevailing on the merits of
the appeal in order to halt the action, and the act of filing an
appeal, in and of itself, would not frustrate the purposes intended by
the application and approval.
We did not select Alternative 1, the continuation of existing
regulations, because of the issues discussed above. Alternative 3 did
not differ from the preferred alternative.
17. Effect on Grazing Use When a Stay Has Been Granted on an Appeal of
a Decision Associated With Changes to a Permit or Lease or Grazing
Preference Transfers
The final rule amends sections 4160.3 Final decisions and 4160.4
Appeals, as these sections relate to administrative stays of decisions
associated with (1) changes made to a permit or lease (other than a
nonrenewable permit), or (2) grazing preference transfers. The final
rule will allow grazing to continue under the terms of an immediately
preceding permit or lease if all or a part of a decision is stayed.
Under this provision, although the grazing decision appealed is
stayed, grazing can continue at the previous levels of use. This
ensures that the decision appealed is rendered inoperative for
exhaustion purposes under 5 U.S.C. 704 and the status quo prior to
issuance of the decision appealed remains in effect. In the instance of
an appeal and stay preventing implementation of a new grazing
authorization, the fact that a permittee may still be authorized to
graze at some level is not a function of the stayed decision being
implemented. It is worth noting that the APA provides at 5 U.S.C.
558(c) that when a licensee has made a timely and sufficient
application for a renewal or a new license in accordance with agency
rules, a license authorizing an activity of a continuing nature does
not expire until the application has been finally determined by the
agency.
Under the existing regulations, the effects of an administrative
stay are addressed at Sec. 4160.3(c)-(e). Existing Sec. 4160.3(d)
allows grazing to continue at the previous year's level when a stay is
granted unless the permit or lease applicant had no authorized grazing
use during the previous year. The final rule clarifies, in Sec.
4160.4(b)(1), that BLM will continue to authorize grazing under prior
terms when a stay is issued for all or part of a decision that (1)
cancels or suspends a permit or lease, (2) changes the terms or
conditions of a permit or
[[Page 39418]]
lease during its current term, or (3) renews a permit or lease.
Existing Sec. 4160.3(d) applied the continuation of prior terms to
decisions on ``an application for grazing authorization.'' This general
phrase created some ambiguity that the more precise list in the final
rule seeks to clarify.
The continuation of grazing under prior terms in existing Sec.
4160.3(d) does not apply to those who had no authorized grazing use in
the prior year. Typically, this exception has affected applicants who
obtained grazing preference through a transfer. For example, assume a
person has recently purchased the base property of another, such as a
ranch. The previous ranch owner's grazing preference can be transferred
to the new owner; however, the new owner must apply for a new permit
because the existing permit automatically expires when the transfer is
approved. See 43 CFR 4110.2-3. If the new owner is granted a permit
authorizing less grazing than the previous owner's permit, the new
owner can appeal to OHA. He can also seek a stay of the BLM decision.
If a stay is granted, however, the new owner would not be authorized to
graze at the higher level associated with the previous ranch owner's
permit under existing section 4160.3(d). Conversely, had no ranch sale
occurred and a renewal permit application led to a reduction in grazing
use, the ranch owner would face a different situation. Should he appeal
and receive a stay, the rancher would be allowed to continue grazing at
the higher level under his previous permit. Many believed this
differentiation in existing section 4160.3(d) between existing
permittees and transferees was not justified. Also, requiring any
grazer to reduce operational levels temporarily is contrary to a stay
designed to maintain the status quo while the appeal is considered.
Existing Sec. 4160.3(e) also creates confusion among grazing
users, the public, and BLM. This paragraph states that when OHA stays a
final decision that changes authorized grazing use, the grazing use
that will be authorized while 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.'' This paragraph has since been
interpreted by OHA to mean that the use BLM can authorize cannot exceed
the use specified by the grazer's existing permit or lease, regardless
of the use that may have been made under that permit or lease in the
immediately preceding year (Fallini, Fallini Living Trust, IBLA 2002-
139, March 4, 2002).
The final rule has addressed these issues by removing the
discussion of stays from section 4160.3 Final decision and placing that
in section 4160.4 Appeals. Now, when a decision on a preference
transferee's application is stayed, BLM will issue a temporary permit
that contains the same terms and conditions as the permit previously
applicable to the area in question, subject to any relevant provisions
in the stay order itself. The permit will be in effect until OHA
resolves the administrative appeal. This change will enhance the
continuity of grazing operations and remove some of the uncertainty
associated with preference transfers. This change does not prevent BLM
from making emergency allotment closures or suspending grazing use to
protect rangeland health, but it does allow grazing to continue under
normal circumstances as a use compatible with BLM's multiple use
mission. BLM is making these changes to balance the exhaustion of
administrative remedies under the APA and our responsibilities under
FLPMA and TGA to
Manage lands for multiple use and sustained yield,
Regulate the occupancy and use of the rangelands,
Safeguard grazing privileges,
Preserve the public rangelands from destruction or
unnecessary injury, and
Provide for the orderly use, improvement, and development
of the range.
Also, to address the unclear language in existing Sec. 4160.3(e),
these stay regulations clearly reference grazing permits and leases as
the document upon which BLM must rely to determine allowable grazing
use levels, and removes the language that refers to the ``authorized
use in the last year during which any use was authorized.''
Alternative 1, the continuation of existing regulations, was not
selected because of the problems discussed above. Alternative 3 did not
differ from the preferred alternative.
18. Biological Assessments and Evaluations Are Not Decisions and
Therefore not Subject to Protest or Appeal
The final rule adds section 4160.1(d), stating that a biological
assessment (BA) or biological evaluation (BE) is not a BLM decision for
purposes of protest or appeal. BAs and BEs are documents prepared by
BLM for ESA compliance purposes. This change should improve
administrative efficiency by lessening the time associated with ESA
consultation.
This change is made in response to the decision of the Interior
Board of Land Appeals (IBLA) in Blake v. BLM, 145 IBLA 154, (1998),
aff'd on reconsideration, 156 IBLA 280 (2002). There, the IBLA held
that a change proposed by BLM in a permit or lease and evaluated in a
BA or BE is a proposed decision under the existing regulations at
section 4160.1. Blake (on reconsideration), 156 IBLA at 283-86. After
the opportunity for a protest, that change could be set forth in a
final decision subject to appeal under section 4160.4. Blake, 145 IBLA
at 166. The Blake holding has led to a situation where a BLM BA or BE
addressing possible grazing changes may trigger the need for two final
decisions, the first of which cannot be directly implemented. BLM
believes a BA or BE is better viewed as an intermediate step that may
later lead to a single final decision that can be implemented. This
regulatory change is designed to implement that view--a view that
formed the basis of BLM actions prior to the Blake decisions. By this
change, the Secretary has prospectively superseded the Blake decisions
through rulemaking.
For example, under the existing Blake interpretation, after any
protests to a change evaluated in a BA or BE are resolved, the BA or BE
would be subject to appeal. However, assuming there were no appeals,
any grazing-related changes contemplated in this ``final'' decision
would not be implemented at that time. Instead, the BA or BE is merely
submitted by BLM for consideration by the FWS. If formal consultation
is required, FWS later issues a biological opinion (BO) in response to
the BA. This FWS BO may differ from BLM's BA or BE. Moreover, BLM may
exercise discretion as it makes implementation decisions based on the
findings and advice contained in the FWS BO. Any grazing-related
changes are then issued as proposed decisions under section 4160.1 and
subject to protest under section 4160.2. Assuming protests are
resolved, a final decision is then issued and is subject to
administrative appeal under section 4160.4. After any appeals are
resolved, this final decision can then be implemented. This time-
consuming process has slowed the ability of BLM to respond to ESA
related issues.
The final rule eliminates the potential for protests and appeals of
a BA or BE prepared by BLM. A BA or BE does not grant or deny a grazing
permit application, assess trespass damages, or make other decisions
that are typically subject to protest and appeal. Rather, a BA or BE is
a tool used to decide whether to initiate formal consultation under
section 7 of the ESA.
[[Page 39419]]
The TGA requires BLM to provide, by appropriate rules and
regulations, for local hearings on appeals of grazing decisions. 43
U.S.C. 315h. These local hearings are administered by an administrative
law judge (ALJ) from the Hearings Division of OHA. ALJ decisions can
then be appealed to IBLA within OHA. While the Secretary has delegated
review authority to OHA over decisions regarding land use, the
Secretary has not delegated authority to OHA to review biological
opinions of the FWS. See Secretarial Memorandum of January 8, 1993
(Secretary Lujan); Secretarial Memorandum of April 20, 1993 (Secretary
Babbitt). This final rule does not modify this longstanding policy. The
ESA does not mandate the creation of an administrative appeal procedure
for biological opinions and instead authorizes a civil suit in Federal
Court. 16 U.S.C. 1540(g). Biological opinions may also be challenged in
Federal court under the Administrative Procedure Act (APA). See Bennett
v. Spear, 520 U.S. 154, 178 (1997).
Alternative 1, the continuation of existing regulations, was not
selected because it would continue the requirement that BLM issue a
biological assessment that is created for the purposes of ESA
consultation on a grazing-related proposed action as if it were a
grazing decision under the TGA, and perpetuate the confusion and
inefficiencies affecting BLM's grazing decision-making processes
addressed above. On September 20, 2004, BLM issued Information Bulletin
2004-148. Among other things, this IB pointed out that BLM will notify
applicants for grazing permits or leases that if ESA matters must be
considered in the course of processing their application for issuance
or renewal of a grazing permit or lease or other grazing use
authorization, that under the ESA they may request BLM to grant them
``applicant status'' under 16 U.S.C. 1536(a)(3), and that individuals
with applicant status will be given the opportunity to comment on and
provide input regarding:
The modifications suggested by the Services (i.e., U.S.
Fish and Wildlife Service (FWS) and/or National Marine Fisheries
Service (NMFS)) during informal consultations, in order to avoid the
likelihood of adverse effects on listed species or critical habitat.
See 50 CFR 402.13(b).
The submission of information to the Services for
consideration during the consultation. See 50 CFR 402.14(d).
Ensuring that they make no irreversible or irretrievable
commitment of resources, with respect to the action, that has the
effect of foreclosing the formulation or implementation of any
reasonable and prudent alternatives chosen to avoid violating Section
7(a)(2). See 50 CFR 402.09.
BLM believes that its guidance on early consultation with
applicants addresses the need identified by Blake for consultation with
existing or prospective permittees or lessees regarding the contents of
biological assessments that BLM prepares for the purposes of ESA-
required consultation.
Alternative 3 did not differ from the preferred alternative.
IV. Response to General Comments
The extended comment period on the proposed rule ended on March 2,
2004. We received about 18,000 comment letters and electronic
communications. An exact count of the comments is not available due to
the large amount of duplication among the comments; very often a single
individual or entity submitted identical comments multiple times or via
different media. We did not attempt to keep track of all the
duplications, although we observed many. Large numbers of comments
supported or opposed the proposed rule in general terms, or discussed
issues without addressing specific sections. Most gave reasons that do
not relate to specific provisions of the regulations. In this section,
we will discuss the comments that addressed the regulatory process as
it pertains to this rule, general comments supporting and opposing this
rule, issue-oriented comments that do not address specific sections,
and comments raising issues not addressed in the proposed rule. The
comments are organized by subject and presented in groups that address
a theme on the subject. We have grouped similar comments together into
themes and addressed them with a single response.
BLM published a Notice of Availability for the associated Draft EIS
on January 6, 2004 (69 FR 569). On January 16, 2004 BLM published a
notice that extended the public comment period on the proposed rule and
Draft EIS until March 2, 2004 (69 FR 2559) so that those commenting
would have sufficient time to review the Draft EIS.
Over 18,000 comments were received combined on the draft EIS and
proposed rule. Responses to those comments were summarized along with
the comments and enclosed in the Final EIS that was published on June
17, 2005.
Approximately 188 comments were submitted after close of the
extended public comment period. Five raised specific issues, and one
was submitted from a sister agency, the U.S. Fish and Wildlife Service.
We decided that an additional document was necessary to respond to
those comments, while also further clarifying issues in the FEIS, and
began working on an Addendum to the FEIS. On March 31, 2006, BLM
published the Notice of Availability for this Addendum to the original
FEIS, which was entitled ``Proposed Revisions to Grazing Regulations
for the Public Lands Final Environmental Impact Statement.''
A. The Regulatory Process
Some comments addressed the regulatory process itself. One comment
urged BLM to clarify when comments are due by specifying a date and
time, including time zone, stating that they find it uncertain when the
exact comment deadline is in the electronic age. Another comment stated
that BLM should not ignore comments received from the public during the
rulemaking process.
We always accept comments postmarked or electronically dated within
the stated comment period, regardless of the time zone of origin. In
future proposed rules, we will make this clearer. We received almost
18,000 letters, postcards, e-mails, faxes, Web-based comments on the
proposed rule and the DEIS, and statements made at the public meetings,
and the BLM staff reviewed every comment numerous times.
We have responded to comments on the content of the proposed rule
and the DEIS in either this final rule or the final EIS (including the
Revisions and Errata document and the Addendum to the FEIS), or both.
In some cases, we responded with a change in the regulatory text, and
in others with revised or additional language in the EIS. In other
cases, we have tried to explain in this preamble why we did not adopt
the comment. Since we received so many communications to analyze, we
have not attempted to respond separately to every duplicate or
substantially similar communication individually, and we did not adopt
every suggestion contained in the comments. We often receive
conflicting comments from the public. BLM considered all views and
suggestions regarding the rule, especially suggestions to improve the
language in the regulations. We discuss either in this preamble or in
the EIS every discrete suggestion and argument raised in the comments.
Those comments that appeared in form letters or that were expressed
multiple times in multiple ways have
[[Page 39420]]
been addressed in a response to a prototypical example of each such
communication, or have been summarized and responded to as a general
comment. BLM has not ignored any comments received at any point during
the rulemaking process.
One comment stated that BLM should have answered questions at the
public meetings to help clarify the proposed rule.
During the public meetings, BLM sought direction from the audience
on other possible policy issues or regulation changes that we should
consider for implementation. BLM did not want to influence the audience
or limit the possible discussion during the meetings.
One comment stated that BLM should give more weight to comments and
concerns from the agricultural industry than those from other
interests. Another stated that the Public Lands Council comments should
be the first guide in amending the grazing regulations.
BLM considered all relevant comments from the public equally on
their merits, whether they were from industry, other government
agencies, staff comments, academia, other interest groups, or
individuals.
One comment stated that BLM ``subverted'' the NEPA process by
issuing the DEIS after the proposed rule was published.
We respond in detail to this comment in the discussion of NEPA
compliance under C. General Opposition, below.
B. General Support
Many comments supported the proposed rule because it recognized the
socio-economic and cultural importance of public land grazing to
adjacent and local communities and considered the concerns of public
land grazing users. Others stated that the rule would protect the
health of the land by relying on science, improving working relations
with permittees and lessees, improving administrative effectiveness and
efficiency, and making it clear that changes in use must be based on
monitoring and assessment.
C. General Opposition
Many of those who opposed the proposed rule stated that BLM should
not adopt the rule because it would give ranchers preferential
treatment at the expense of the nation's natural resources; favor
ranchers and elevate grazing as the primary use of public land instead
of managing for multiple resources and restoring degraded resources;
weaken the conservation and restoration of public lands; limit public
participation; limit BLM's regulatory authority with respect to public
lands; and return to the archaic notion that the grazing lessee in
essence owns the public's land. Others opposed the rule, stating that
it hampers the work of BLM field offices, or that it fails to identify
good and bad grazing practices. Many comments opposed the rule,
expressing their opposition in terms of opposing public land grazing
itself.
BLM makes no changes in the final rule in response to these
comments. We agree that we are a multiple use agency and that single
uses should not generally be favored at the expense of other users or
resources. These regulations do not favor ranchers at the expense of
other resources. BLM has never operated under the notion that the
grazing operator in essence owns the public land, and these regulatory
changes do not introduce provisions that would provide for rancher
ownership of the public lands. Rather, the changes are intended, among
other things, to improve the cooperative environment within which
ranching takes place on public land. At the same time we have made
certain that these adjustments to the regulations do not harm the
rangeland resources or prevent significant involvement of the public in
rangeland management. We need to amend the current regulations to
improve working relationships with permittees and lessees, to protect
and enhance the health of the public rangelands, to resolve some legal
issues, and to improve administrative efficiency. The final rule
continues to provide for BLM cooperation with other government agencies
that have responsibility for grazing on public lands. The final rule
provides for the interested public to review, provide input, and
comment on reports that evaluate monitoring and other data used as a
basis for developing terms and conditions of a grazing permit or lease.
Also, the final rule retains interested public participation when
preparing allotment management plans, developing range improvement
projects, and apportioning additional forage. In the final rule, the
interested public retains the opportunity to review proposed and final
decisions, as well as the right to protest proposed decisions and
appeal final decisions as long as they meet the requirements of 43 CFR
4.470.
BLM manages for multiple uses. We also restore degraded resources,
and believe that we can pursue restoration while administering grazing
in accordance with the regulations.
We do not seek to elevate grazing to be the primary use of public
land. BLM manages the public land on the basis of multiple use and
sustained yield. We intend the regulatory changes to improve working
relationships with permittees and lessees. We anticipate that these
changes will improve consultation, cooperation, and day-to-day
coordination with them. Additionally, the rule focuses communication
efforts on those groups most interested in the management of public
lands for grazing. The cooperation fostered by the final rule should
help make BLM's field work more efficient and cost effective.
BLM does not believe that the final rule weakens environmental
standards. For example, it strengthens standards by requiring
monitoring and land assessment in areas that do not meet rangeland
health standards due to grazing practices before BLM makes a
determination to that effect. As a result, BLM's decisions are expected
to reflect a more comprehensive analysis that in turn can be
anticipated to help ensure defensible decisions if appealed and
ultimately more effective decisions from both an implementation and
land health perspective. The final rule retains the fundamentals of
rangeland health and requires that Standards and Guidelines developed
by BLM State Directors be consistent with these fundamentals. The final
rule retains the regulatory requirement that BLM take appropriate
action whenever existing grazing management practices or levels of
grazing use are significant factors in not achieving standards or
conforming with guidelines. The final rule retains provisions that
allow BLM to close areas to grazing or modify grazing practice when
necessary for immediate protection of resources because of conditions
resulting from fire, drought, flood, or insect infestation. The final
rule retains provisions for BLM to review grazing permits and leases
and to make changes as needed to maintain or improve rangeland
productivity or assist in making progress toward restoring ecosytems to
properly functioning condition. The final rule retains provisions that
the range improvement fund be used for 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
management facilities, vegetation improvement and management, and
livestock grazing management. The final rule retains provisions that
prohibit cutting, burning, spraying, destroying or removing vegetation
without authorization. The final rule provides
[[Page 39421]]
that BLM may suspend or cancel the permits or leases of operators who
are convicted of performing environmentally degrading acts on
allotments where they are permitted to graze. Nothing in the final rule
diminishes BLM's regulatory authority.
As for distinguishing between good and bad grazing practices, the
rule does change the way BLM determines whether an operator has a
satisfactory record of performance. See the discussion under section
4130.1-1, below.
Some comments stated that BLM should not change the regulations
because the new regulations do not follow the Secretary's ``4 Cs''
philosophy.
The changes in the regulations are designed to improve
communication, consultation, and cooperation in the service of
conservation. We explain elsewhere in this preamble how the various
changes help to conserve the health of the land by encouraging
cooperation between BLM and grazing permittees and lessees, and how the
interested public can participate at various stages of the range
management process.
One comment stated that BLM should revise the proposed regulations
in order to better reflect its multiple use mandates, and that BLM
failed to justify reversing current regulations. Another stated that
the proposed rule represented fundamental policy shifts. Others stated
that the current regulations were litigated and upheld in Federal
court.
BLM stated the reasons for the changes in the grazing regulations
in the proposed rule. The final rule does not contain fundamental
policy shifts, although it amends aspects of the 1995 rule. We intend
the revisions to improve working relations with permittees and lessees,
to protect the health of the rangelands, to increase administrative
efficiency and effectiveness, and resolve legal issues. The fact that a
regulation has been approved in a court decision does not mean that the
agency can never amend it further if it finds a need to do so. The
changes in the final rule are driven by specific issues and concerns
that have come to BLM's attention through experience with the 1995
regulations and from public comments.
The regulatory changes are narrow in scope, do not include changes
in the fundamentals of rangeland health or the standards and guidelines
for grazing administration, and otherwise leave the majority of the
1995 regulatory changes in place. FLPMA provides authority and
direction for managing the public lands on the basis of multiple use
and sustained yield principles. FLPMA land use planning has determined
that grazing continues to be an appropriate use of a large portion of
the public lands administered by BLM. The final rule will not affect
BLM's multiple use mandate. In fact, one of the major areas of focus of
the grazing regulations revisions is protecting the health of the
rangelands by making temporary nonuse a more flexible option, by
requiring a BLM finding that additional forage is available for
livestock use as opposed to other uses before authorizing livestock
grazing use of it on a temporary or sustained-yield basis, and by
emphasizing monitoring as a basis for BLM decisions on grazing
management, including any increases in active use as well as decreases.
Comments opposing the rule asserted that grazing has degraded
wildlife habitat, soils, cultural sites, native plant communities, and
riparian resources, leading to increased erosion, loss of range
productivity, invasion by exotic plants, and will result in
desertification and increased listing of species as threatened or
endangered. Other comments stated that the proposed rule would do
little to promote recovery of streamside vegetation and would cause
short-term damage to rangeland and wildlife habitat. Comments urged BLM
to take actions to restore these lands, not weaken the grazing
regulations, stating that the impacts of overgrazing on western
rangeland streams, rivers, and fisheries have been documented. A
comment said that BLM should allow the land to rest to heal from
overgrazing.
These comments are largely directed at the grazing program itself,
and are beyond the scope of this rule, which is focused on improving
administration. The elimination of grazing from the public lands has
not been considered here. This level of analysis was undertaken for the
comprehensive changes made in the grazing regulations in 1995. Here,
the changes are administrative in nature. Uses other than grazing can
contribute to the problems discussed in the comments. Within its
resource capabilities, BLM, in cooperation with users and the public,
manages grazing and other uses in a manner that recognizes and
addresses the potential for these impacts so that, ideally, they are
avoided or mitigated. Under subpart 4180 of the grazing regulations,
BLM must manage grazing, which includes rest from grazing where
appropriate, in a manner that achieves, or makes progress towards
achieving, standards for rangeland health. These standards have been
developed on a regional basis and address watershed function, nutrient
cycling and energy flow, water quality, habitat for endangered,
threatened, proposed, candidate, or other special status species. The
final rule will strengthen BLM's ability to implement grazing
strategies that provide for maintenance or achievement of healthy
rangelands.
A comment asserted that stocking levels are too high, and forage
production is only \1/5\ of its potential, resulting in conflict with
rangeland health standards. Another comment stated that light stocking
levels would provide the highest long-term financial return. A third
comment stated that BLM should not allow utilization levels based on
the take half/leave half principle.
These comments appear to suggest that stocking and utilization
levels should be determined through a rulemaking process. What the rule
is doing, on the other hand, is to make mainly procedural changes to
improve administration of the grazing program as a result of experience
implementing the 1995 rule. Stocking levels are better addressed during
the land use and activity planning processes where the wide variety of
relevant factors, such as climate, competing forage use, and other
multiple use needs, can be addressed. The rule provides that monitoring
data must be used to support a determination that livestock grazing is
a significant cause for not achieving one or more rangeland health
standards. Typically, utilization measurements or estimates are among
the kinds of monitoring studies BLM conducts to inform analysis about
the effects of stocking rates on land conditions at the local level.
A comment stated that BLM should not place western grazing rights
above those in other areas of the country, and that the government
provides competitive advantages to public land grazing permittees and
lessees.
The comment raises fee and subsidy issues, which were not part of
this rulemaking. The grazing fee formula was established in the Public
Rangelands Improvement Act (PRIA) of 1978 (43 U.S.C. 1901, 1905)
through 1985. The applicability of the formula was extended by
Executive Order 12548 on February 19, 1986 (51 FR 5985). The regulatory
provision implementing PRIA and the Executive Order appears at 43 CFR
4130.8-1. The formula is not affected by the costs of grazing in other
parts of the country outside of the 11 western states of Montana,
Idaho, Wyoming, Colorado, New Mexico, Arizona, Utah, Nevada,
Washington, Oregon, and California. Fee and subsidy issues were
examined in BLM's EIS for Rangeland Reform '94. This proposed
[[Page 39422]]
action addresses refinements of Rangeland Reform '94, including, among
other things, inefficiencies in the current regulations.
A comment stated that BLM ``subverted'' the NEPA process by not
adopting language contained in a preliminary internal administrative
review copy of the draft EIS (DEIS) obtained by the commenting
organization and submitted as an attachment to its comment. The draft
document contained descriptions of significant adverse effects on
wildlife, biodiversity, and special status species. The comment stated
further that not using this document prevented BLM from taking a ``hard
look'' at environmental consequences of the proposed rule, and resulted
in an unlawful post-hoc rationalization.
BLM did not ``subvert'' the NEPA process by editing the
administrative review copy of the DEIS. As is BLM's usual practice,
staff scientists and analysts prepared preliminary drafts of portions
of the DEIS, then circulated their preliminary drafts among their
colleagues. We circulate such documents for internal review in an
effort to produce a factually accurate, scientifically sound, and well-
reasoned DEIS. The administrative review copy represents a ``snapshot''
of an early stage of BLM's deliberative internal review process. The
text identified in the comment was revised as a result of further
internal review for the reasons explained below.
Some of the revisions updated the draft document to reflect the
actual contents of the proposed rule. For example, the administrative
review copy stated that upland and riparian habitats would continue to
decline because the proposed rule would worsen an ``already burdensome
appeals process'' and decrease BLM's ``ability to control illegal
activities on public lands.'' In fact, the rule did not propose to
amend the ``appeals process,'' but remove provisions from the grazing
regulations that were redundant to regulations of the Office of
Hearings and Appeals in 43 CFR part 4. With respect to illegal
activities on public lands, the rule proposed specific prohibited acts
on grazing allotments that would constitute violations of the grazing
regulations, with penalties including possible forfeiture of the
grazing permit. However, the rule does not prevent BLM from enforcing
other regulatory or statutory provisions on allotments or any other
public lands.
The administrative review copy also concluded that the proposed
rule would ``greatly [diminish] the ability of the BLM to regulate
grazing,'' to the detriment of wildlife, because it would defer to
state water law. Deference to state water law is an element of the
existing provision on water rights (43 CFR 4120.3-9), and was not new
in the proposed rule. BLM retains regulatory authority over grazing use
on public lands regardless of ownership of water rights on public
lands. A state water right does not confer an attendant right to graze
livestock on public lands. Moreover, BLM may hold water rights for
other beneficial uses, such as for wildlife, wildlife habitats, and
recreation, even if it is precluded from holding water rights for
watering livestock, which is currently the case in some states.
The administrative review copy was also further edited to cite
legal requirements more precisely. In some cases, the conclusion based
on the legal requirement was changed to reflect the agency's assessment
of the effects of the rule. For example, the administrative review copy
stated that ``the increasing and burdensome administrative procedural
requirements for assessment and for acquisition of monitoring data ``
abrogate our responsibility for management of water quality as codified
in Section 313 of the Water Quality Act of 1987 (Pub. L. 100-4); and
further, committed to by [sic] designation by most [sic] as a
`Designated Management Agency.' Delaying modification of grazing
prescriptions when an[d] where warranted and/or mitigation of damages
created by failure to implement a Best Management Practices (BMP's)
iterative process will continue to stress western watersheds.''
Section 313 of the Water Quality Act of 1987 amended various civil
penalty provisions of the Federal Water Pollution Control Act (FWPCA)
(33 U.S.C. 1251 et seq.) that are not administered by BLM and are not
relevant to federally-permitted grazing. BLM is, however, subject to
requirements pertaining to nonpoint source pollution that may result
from livestock grazing, and the appropriate citation is Section 313 of
the FWPCA, 33 U.S.C. 1323, rather than Section 313 of the Water Quality
Act of 1987.
Section 313 of the FWPCA requires Federal agencies to ``comply with
* * * all state * * * and local requirements * * * in the same manner
and to the same extent as any nongovernmental entity.'' 33 U.S.C.
1323(a)(1). BLM does not believe that delay in modifying grazing
prescriptions or implementing BMPs would necessarily lead to violations
of state and local water quality requirements, and that delay may be
warranted in order to gather data that would lead to better-supported
or more effective prescriptions and/or BMPs.
The BLM has also revised the assessment of the effects of changes
made to subparts 4110 and 4180, which were initially characterized as
``delaying tactics [and] could result in a protracted 7-year period for
full implementation and change and this would result in a long-term
adverse impact upon wildlife and biological diversity, including
threatened and endangered and special status species * * *. Present BLM
funding and staffing levels do not provide adequate resources for even
minimal monitoring and the additional monitoring requirement will
further burden the grazing decision process.''
BLM does not believe that long-term adverse impacts to wildlife and
biological diversity would occur as a result of these changes, because
both this rule and the existing regulations provide BLM discretion to
begin changing active use, or to close a grazing allotment, when
necessary for the protection of natural resources. BLM funding and
staffing levels are issues that arise in annual budget development, and
we plan to work to ensure that collecting data through rangeland
monitoring remains a priority. While BLM agrees that the time frame for
making decisions may increase due to the changes in subpart 4180, BLM
anticipates that taking additional time to formulate, propose, and
analyze an appropriate action will improve decision making, thus
improving rangeland health in the long term.
We expect these aspects of the rule to have slight environmental
effects because reliance on monitoring data is not new to the grazing
program. At present, changes in grazing use may be supported by
``monitoring, field observations, ecological site inventory, or other
data acceptable to the authorized officer.'' 43 CFR 4110.3. Decreases
in grazing use must be supported by monitoring or field observation. 43
CFR 4110.3-2. Allotment management plans and resource activity plans
``shall'' provide for monitoring. 43 CFR 4120.2. Thus, monitoring is
already an acceptable method of collecting data under the existing
grazing regulations. To the extent that authorized officers already
collect monitoring data to reach determinations under section 4180.2,
the rule should have no environmental effect. To the extent that
authorized officers currently rely on faster methods of data
collection, the final rule could slow down the process of making
determinations and thus potentially cause adverse environmental effects
in
[[Page 39423]]
the short term. However, these effects would be mitigated to the extent
that existing monitoring data may be sufficient to support
determinations, and to the extent that better data result in more
effective and more appropriate action.
The administrative review copy raised concerns pertaining to the
definition in the rule of ``interested public,'' to provisions that no
longer require the participation of the interested public in routine
decisions such as permit renewals, and to provisions requiring
cooperation with Tribal, state, county, or local grazing boards. The
administrative review copy stated that these proposals would ``limit
the ability of environmental groups to participate in the appeals
process in the interest of wildlife * * *. This should result in long-
term adverse impacts to wildlife and special status species.'' With
respect to grazing boards, the administrative review copy stated that
the rule would ``give greater emphasis to local entities that favor
extraction of forage and water resources at the expense of wildlife and
biological diversity [and] give local entities greater influence over
decision making than national interests who are excluded from this
venue.''
The DEIS did not reflect these concerns because the rule does not
prevent or limit the ability of an environmental group, or any other
interested public entity, to ``participate in the appeals process.''
Under 43 CFR 4160.1, BLM would continue to provide copies of proposed
and final grazing decisions to all members of the interested public.
They would then have an opportunity to seek administrative remedies.
With respect to grazing boards, BLM believes that cooperating with
Tribal, state, or local-government established grazing boards in
reviewing range improvements and allotment management plans on public
lands would provide valuable input regarding these matters. Moreover,
under section 4120.5-1, BLM would continue to cooperate with
institutions, organizations (such as environmental groups),
corporations, associations, and individuals to achieve the objectives
of the grazing regulations. BLM notes that, often, national groups have
local chapters and representatives that serve as a conduit for their
views at the local level. BLM accepts input from all sources,
regardless of affiliation. BLM believes that while some reduced input
may result from changes in the rule, that this would not result in
significant effects on wildlife because the interested public would be
able to provide input into many grazing decisions and documents, such
as range improvement plans, range development programs, Allotment
Management Plans, Resource Management Plans (RMPs) and RMP amendments
that govern these routine decisions.
The amendments of the administrative review copy were made before
the DEIS was finalized, and they preceded the issuance of a final rule.
The administrative review copy was amended to reflect the input from
other reviewers regarding the likely effects of the rule and correct
some factual errors.
D. Purpose and Need for Rulemaking
We received numerous comments regarding our reasons for this rule,
including many form letters and form e-mails.
Several comments, although they supported the purpose of the
proposed rule, stated that, with regard to the proposed provisions on
grazing preference and removal of the term ``permitted use,'' active
use phase-in, and title to range improvements, the rulemaking record
lacks concrete examples of problems with the current regulations that
warrant the proposed changes. The comments stated that this may cause
problems because BLM is effectively rescinding the 1995 grazing
regulations as to these particular matters and restoring the pre-
existing status quo. The comments went on to say that an agency
rescinding a rule must ``explain why the old regulation is no longer
desirable,'' citing Action on Smoking and Health v. C.A.B., 699 F.2d
1209, 1216 (D.C. Cir. 1983). The comments concluded that, in the 1995
final rule, BLM rejected the concerns expressed in many of the comments
on the 1994 proposed rule, and now needs to explain what has changed,
including recognition that the concerns stated in those comments on the
1994 proposed rule have proven to be valid.
We believe the changes made in this final rule are consistent with
the standard announced in Motor Vehicle Manufacturers Ass'n of the
United States, Inc. v. State Farm Mutual Automobile Insurance Co., 463
U.S. 29 (1983): ``An agency's view of what is in the public interest
may change, either with or without a change in circumstances. But an
agency changing its course must supply a reasoned analysis.'' Id. at
57. We have supplied the requisite reasoned analysis for the changes in
the Record of Decision and in the respective section-by-section
discussions in this preamble.
Some comments stated that the current rules are consistent with the
TGA because they have been tested in court, and that BLM should comply
with Supreme Court rulings.
The changes being made in this final rule are based on years of
experience implementing the 1995 regulations, and on comments received
on the proposed rule and DEIS. In some instances, we found that
provisions of those regulations were impairing our ability to protect
and enhance rangeland health. For example, providing for sole United
States ownership in range improvements led to a reduction in range
improvement applications throughout the time that the regulations have
been in effect. Also, requiring BLM to take action by the start of the
next grazing year after determining that existing grazing management
practices or levels of grazing use were significant factors in failing
to achieve standards of rangeland health has been seen to be an
impracticable decision because it sets a deadline that is impossible to
meet in most instances. Further, it is counterproductive because BLM
has had to divert resources from rangeland management and monitoring to
deal with legal challenges that arise when we fail to meet the
unreasonable deadlines. In one of those legal challenges, a Federal
appellate court interpreted existing section 4180.2(c) ``to require the
BLM not merely to begin the procedures set forth in 43 CFR Sec. Sec.
(sic) 4110, 4120, 4130, and 4160, but rather to complete them and issue
its final decision by the start of the next grazing year.'' Idaho
Watersheds Project v. Hahn, 187 F.3rd 1035, 1037 (9th Cir. 1999). BLM
had to divert resources from other locations to comply with the court's
ruling. We will discuss these and other problems with the 1995
regulations in more detail when we address comments on the relevant
provisions of the proposed rule.
The Supreme Court did not require BLM to retain its existing
regulations. It found that the 1995 grazing regulations that it
reviewed did not exceed the authority granted to the Secretary under
the TGA. BLM does not dispute that the regulations being changed today
were in compliance with the TGA and within the Secretary's statutory
authority. Changes being made today also are in compliance with the TGA
and are within the Secretary's statutory authority.
Some comments on the proposed rule suggested that BLM consider
making changes through policy instead of through regulation changes.
BLM very often does make changes through policy rather than
rulemaking. However, if regulations in place need to be modified to
achieve improved management, we can only change those regulations
through rulemaking.
[[Page 39424]]
A comment stated that BLM should not enact excessive regulations
because they make it uneconomic for traditional ranching families to
pursue their business.
Excessive regulation can increase costs to user groups. We believe
the changes made in the final rule will make grazing on public land
more efficient without negatively affecting the health of the public
rangelands.
Many of the comments on the proposed rule stated that the
regulation changes seem to be driven by only one small faction: Grazing
permittees and lessees. They went on to say that the regulations should
balance the requirements of consultation, cooperation, and coordination
(CCC), and no emphasis should be placed on a single user group. The
comments stated that this will not result in increases in cooperation
with interested publics as stated because the proposed regulations
diminish the levels of CCC with other interested publics and emphasize
CCC with a single commercial user of public resources. Other comments
stated that improving efficiency would be detrimental to public
participation.
The rule provides a mechanism for persons and organizations to
attain and maintain ``interested public'' status for purposes of
participating in management decisions as to specific allotments. At the
same time, the rule provides a way to remove from the list of
interested publics those individuals, groups, or organizations that
have been on the list indefinitely without ever commenting on or
otherwise providing input in the decision process. These regulations
will provide numerous opportunities for the interested public input
into resource management allocation decisions.
BLM believes that in-depth involvement of the public in day-to-day
management decisions is neither warranted nor administratively
efficient and can in fact delay BLM remedial response actions
necessitated by resource conditions. Day-to-day management decisions
implement land use planning decisions in which the public has already
had full opportunity to participate. Also, such in-depth public
involvement can delay routine management responses, such as minor
adjustments in livestock numbers or use periods to respond to dynamic
on-the-ground conditions. For example, a decision to delay turn-out,
increasing number of livestock and shortening the season of use in
response to delayed vegetative growth resulting from a cool, moist
spring may not be possible if a large number of interested parties need
to be consulted first. While this type of adjustment makes good
management sense from a resource perspective, the time taken to meet
the current administrative requirements may preclude being able to take
this action. Cooperation with permittees and lessees, on the other
hand, usually results in more expeditious steps to address resource
conditions and can help avoid lengthy administrative appeals.
Some comments supporting the purposes of the proposed rule, agreed
that there is a need for improving working relationships with users.
One comment pointed out that cooperation with ranchers would minimize
incompatible uses of interspersed private lands, such as subdivisions,
and another said that it would provide better care for the land.
BLM recognizes that ranchers who are committed to the health of the
land are valuable partners. These regulatory changes are designed,
among other things, to ensure sufficient oversight of public land
grazers, and to facilitate better cooperation between BLM and the
ranching community, while protecting the land.
Comments opposing the rule stated that the emphasis on certain
considerations, such as the social, economic, and cultural effects of
agency actions that change levels of grazing preference, would have
adverse impacts on natural resources, leading to degradation of the
public lands. Comments stated that improving working relationships with
grazing permittees and lessees would tend to weaken the ability of BLM
to manage rangelands in a timely fashion by adding considerable time
before action can be taken. One comment stated that BLM should have
working relationships with the public, not just ranchers. Another
accused BLM of appeasing ranchers and increasing the level of
environmental damage.
BLM retains the discretion to determine how much time is warranted
in coordinating with grazing permittees and lessees. Considering the
social, economic, and cultural effects of actions that change grazing
use levels contemporaneously with considering the environmental effects
should not appreciably increase this time or the time consumed in
implementing decisions. We have not materially changed current policy
in this regard in this rule, and therefore anticipate few if any
additional delays in the authorization or implementation of grazing
management actions on public lands.
BLM does have a working relationship with many publics and
encourages public participation in the management of public lands.
However, with respect to day-to-day management actions involving
livestock, close coordination by BLM with those responsible for the
``hands on'' management of the livestock, in other words, the
permittees and lessees, is essential to ensure that livestock use
impacts on resources do not prevent achieving other multiple use
management objectives.
Many comments stated that the proposed rule will slow down or
diminish any progress made by the 1995 rule.
The Rangeland Reform effort of 1994-95 made numerous significant
changes directed at restoring rangeland health. The changes in this
rule preserve the regulatory framework of Rangeland Reform and make its
implementation more practicable. In this rule, some time frames for
developing appropriate management decisions and, in some cases,
implementing changes in the amount of forage authorized for grazing use
have been lengthened. We expect that having more time to develop
practical alternatives and make decisions will lead to better
decisions, supported by reliable data gathered through monitoring, and
result in achieving long-term management goals and rangeland health.
These new regulatory changes do not change the resource protection
values of Rangeland Reform, but they do provide additional time for
developing appropriate actions to effect grazing changes.
A comment stated that the final rule should reflect the legal
requirements for cooperation with the public, other agencies, and
users, in various laws, including FLPMA, the Fish and Wildlife
Coordination Act, the Migratory Bird Treaty Act, the Public Rangelands
Improvement Act (PRIA), the Sikes Act, and the TGA.
We are complying with all relevant laws. However, attempting to
list various requirements of multiple Federal laws in the grazing
regulations would be unwieldy and would require amendment of the
regulations to reflect future changes in these laws or the addition of
new laws. Rather, BLM utilizes manuals, handbooks, and other guidance
to ensure compliance with relevant laws.
One comment stated that the proposed rule failed to consider the
definition of ``principal or major uses'' in Section 103 of FLPMA,
which ``includes, and is limited to, domestic livestock grazing, fish
and wildlife development and utilization, mineral exploration and
production, and timber production.''
[[Page 39425]]
The rule addresses domestic livestock grazing, which is one of the
principal uses of the public lands under FLPMA. Regulations on other
principal uses of public lands managed by BLM are found elsewhere in
Title 43 of the CFR.
One comment stated that politicians should be barred from direct
intervention in matters related to public lands grazing.
Presumably, the comment is referring to congressional contacts or
oversight associated with livestock grazing. BLM manages the public
land, and takes into consideration the views of all interested parties
when it is appropriate to do so. This may include the views of public
officials, including Members of Congress.
Many comments expressed the concern that the proposed rule would
lead to impairment of the health of the rangelands. They phrased this
concern in a variety of ways. Comments stated that the proposed rule
would do little to promote riparian recovery or prevent decline of
plants or animals. Others stated that the rule would cause additional
resource damage to specific geographical areas, such as the Northern
Rockies. Comments stated that granting greater discretion to permittees
and lessees and to BLM managers may result in more resource impairment.
One comment stated that the proposed changes would reduce cooperation
in achieving rangeland health objectives. One comment urged that the
rule should provide for rangeland management to avoid resource
depletion and to conserve resources for the future. Comments disagreed
with our view that the changes in the rule were largely administrative
in nature with little direct effect on the environment. Comments urged
that the rule should be amended to avoid the short-term adverse effects
on the environment predicted in the Environmental Impact Statement.
Comments stated that the objectives of the regulations should be
revised to recognize the real purpose of the proposed rule: to keep
ranching operations viable, with rangeland health as a secondary
objective. Some comments urged that BLM consider that healthy lands
improve local economies.
BLM has not changed the regulatory text in response to these
comments. Many provisions in the proposed rule, including increasing
the requirements for monitoring, removing the 3-year limit on temporary
nonuse, sharing title to range improvements, and others, are designed
to protect and enhance the long-term health of the land. The
anticipated environmental impacts of the changes are set forth in
detail in Section 4.3 of the EIS and in the Addendum. We believe that
the changes will improve working relationships with permittees and
lessees, protect and improve the health of the public rangelands, and
improve administrative efficiency.
Many comments stated that the monitoring requirements in the
proposed rule would cause increased workloads for BLM field managers
and personnel.
We acknowledge that the monitoring requirements in the rule will
likely increase the workload of BLM field range managers and
specialists somewhat, but we anticipate that the increases in
monitoring will be accompanied by the benefits of improved management
and saved time in the end, as we explain later in this preamble in our
discussions of changes in sections 4110.3-3 and 4180.2. Further, the
change in section 4180.2(c) in the final rule, imposing the monitoring
requirement only if a standards assessment indicates that the allotment
is failing to achieve standards or that grazing management practices do
not conform to the guidelines, rather than requiring existing or new
monitoring data to support every standards attainment determination,
will minimize the workload increase. Any workload increase that arises
will require BLM to reprioritize work or to find alternative means of
collecting the monitoring data we need, or some combination of these,
to the extent that additional monitoring is required. This may include
cooperation with the grazing permittees and lessees themselves and with
local citizen volunteers. BLM believes the changes in the regulations
associated with monitoring will help achieve sustainable management
objectives.
One comment stated that BLM has indicated the necessity of making
permit administration more efficient, but that these regulatory changes
are motivated by a determination to exclude the interested public from
the decision process. It went on to say that if BLM claims to have
processed over 10,000 permits and issued over 13,000 permits, the
agency should break down these numbers to show what percent of permits
were renewed each year, how many were renewed under Appropriations Act
``riders'', and how many were appealed. The comment said that this
would help establish a quantitative assessment of the need for change.
BLM does not believe a quantitative assessment of permit renewals
is necessary to explain the need for efficiency changes to the overall
administration of the grazing program. Efficient use of public
resources, including Federal funding and management, are always proper
goals of agency management. However, BLM has revised Section 3.4.1 in
the EIS in an effort to address the concerns expressed in the comment.
Section 3.4.1 in the EIS now provides additional information which
further quantifies and explains the permit renewal process.
The comment also states that our motive in making these regulatory
changes was to exclude the interested public from the decision process.
In fact, the final rule requires consultation with the interested
public where such input is of the greatest value, such as when deciding
vegetation management objectives in an allotment management plan, or
preparing reports evaluating range conditions. BLM retains the
discretion to determine and implement the most appropriate on-the-
ground management actions to achieve the objectives and/or respond to
range conditions. BLM values productive consultation with the
interested public. However, we must retain flexibility in order to take
responsive, timely, and efficient management action. We believe that a
more efficient consultation process will help facilitate efficient
management of the rangelands while still providing for significant
input from interested parties.
Many comments stated that BLM should increase funding to improve
working relations with permittees and lessees and promote conservation
of public lands, and that even small funding increases could greatly
contribute to the mutual goals of continued grazing and healthy
rangelands, if they are applied in an innovative and collaborative
manner to facilitate improved on-the-ground livestock management
practices.
BLM manages its Congressional appropriations in light of its varied
and diverse statutory missions and responsibilities, and seeks
opportunities to leverage its funding by engaging in partnerships
wherever possible. Funding of BLM programs is not within the scope of
this rulemaking. However, BLM intends that this rule will broaden
opportunities for partnerships.
One comment stated that BLM should establish policy and subsequent
regulations with procedures for optimizing habitat quantity and quality
for the variety of multiple uses and those species that are considered
biologically dependent on their respective ecosystems.
BLM manages for multiple uses under the guidance found in BLM land
use plans. BLM land use planning regulations, and policy and procedure
[[Page 39426]]
are found in 43 CFR subparts 1601 and 1610, BLM Manual 1601--Land Use
Planning, and BLM Handbook H-1601-1--Land Use Planning Handbook. BLM
policy and procedures regarding management of wildlife and their
habitats, sensitive species and the introduction, transplant and
augmentation of fish, wildlife, and plants are found in BLM Manuals
6500--Wildlife and Fisheries Management, 6525--Sikes Act Wildlife
Programs, 6840--Special Status Species Management and 1745--
Introduction, Transplant, Augmentation, and Reestablishment of Fish,
Wildlife and Plants. Promulgating regulations concerning these subjects
is outside the scope of this rule. Species-specific provisions are not
appropriate for national regulations, and should be contained in local
land use plans issued in accordance with these manual provisions and
the planning regulations.
E. Environmental Effects of the Rule
Large numbers of comments addressed environmental effects of the
proposed rule, mostly in opposition to the rule. Many of these comments
also addressed the DEIS; these comments are discussed under VI.
Procedural Matters later in the preamble.
One comment, however, stated that BLM has overstated the adverse
impacts of the proposed rule, and that we should say that the short
term impacts of regulatory changes would be so minuscule as to be not
worth mentioning. It went on to agree that, in the long term, changes
under the proposed rule can be expected to improve range conditions.
Many comments expressed concern that the combination of changes in
the regulations would lead to multiple-year deferment of appropriate
actions. The concern was that requiring monitoring data to make a
determination, allowing up to 24 months for appropriate agreement or to
develop and analyze an appropriate action, and generally allowing up to
5 years to implement changes of more than 10 percent in level of use,
could lead to as much as 9 years of delay in changes being made on
allotments that most needed the adjustment in grazing management.
Impacts on wildlife and habitat, threatened and endangered species,
invasive weed infestations, recreational uses, and BLM workload and
funding were all issues of concern.
First of all, we anticipate the possibility of short term adverse
effects occurring in those limited instances where vegetation recovery
is delayed by the extended implementation deadline. Based on
evaluations of land health from 1998 through 2003, this may be an issue
on fewer than 16 percent of all allotments. In addition, BLM has the
authority under section 4110.3-2 and section 4110.3-3 of the rule to
decrease use or suspend use without a phase-in period if resource
conditions demand. Only in those instances where longer term reductions
are requested and rangeland health is not imperiled would the recovery
of vegetation be somewhat delayed.
Furthermore, the time frames provided for each of the actions
listed are limits. BLM, from its experience to date, expects that in
most cases, the maximum amount of time allowed for each of the 3 steps
(monitoring, appropriate action development, and implementing forage
allocation changes of more than 10 percent) will likely not be needed.
At the end of Fiscal Year 2002, only about 16 percent of the 7,437 high
priority allotments assessed for land health status were not achieving
standards because of existing livestock grazing management. Assessments
of the remaining 84 percent indicated that standards were met, or that
there was a reason other than existing livestock grazing for not
meeting standards. Most of the adjustments on these allotments that
failed to meet standards due to existing livestock management have been
made in the season of use, or movement and control of livestock, rather
than in levels of active use. An unknown portion of these adjustments
were changes of more than 10 percent in active use. We do know from
conversations with State Office range program leaders, and from
information gathered during range program evaluations and field office
visits that reductions in active use in excess of 10 percent are rare.
In fact, in 2003 the forage actually consumed, as documented by
billings, was 6.7 million AUMs, while the amount authorized by term
permits was 12.6 million AUMs. This reduced amount of actual grazing
was largely due to drought, plus other reasons, such as fire. However,
it reflects the fact that grazers are already taking temporary nonuse
or being suspended, either voluntarily or by agreement, due to the
current range and weather conditions.
As stated in section 4.3.7 of the EIS, there may be limited short
term negative impacts if the full 24 months or more is needed, once we
have sufficient data through assessment or monitoring or both, to
develop an appropriate action and complete the required coordination
and consultation. Based on determinations made since 1998, only about
16 percent of allotments need adjustment in livestock management or
levels of use to make progress toward achieving land health standards.
The negative impacts of taking the full 24 months to develop an
appropriate action can be expected to be limited to about 16 percent of
allotments. However, the extra time taken to develop a meaningful
action is expected to provide greater long term benefits to other
resources. For example, merely reducing the level of use in a riparian
area is not likely to improve the riparian area condition, because
adjustments in season, frequency, and duration of use are much more
effective management strategies for restoring riparian functionality.
Taking the additional time to develop an appropriate action may
actually decrease the amount of time taken to implement the decision,
particularly if the decision is not appealed as a result of the
additional time spent in consulting with permittees and formulating and
analyzing options. Implementing decisions can be delayed by 18 to 36
months if appealed and if a stay is granted.
Under the preferred alternative, using existing or new monitoring
data will not be necessary on every allotment in order to make a
determination, but only on those allotments that fail to meet standards
due to levels of grazing use or management practices. The number of
allotments where all 3 action issues (monitoring, 24 months to develop
remedial action, and 5-year phase in of adjustments) are needed is
expected to be small. Monitoring is necessary only for those allotments
as to which a BLM status assessment indicates that rangeland is failing
to achieve standards or that existing grazing management practices do
not conform with guidelines. Then BLM will use existing or new
monitoring data to determine whether management practices or levels of
grazing use are significant factors in failing to achieve standards and
conform with guidelines. The extended phase-in period will apply only
when conditions require forage allocation changes of 10 percent or
greater. Furthermore, the final rule provides for exceptions to the
phase-in period in section 4110.3-3(a). Finally, the final rule
provides the authorized officer authority to close an allotment or
portions thereof immediately if continued grazing use poses an imminent
likelihood of significant resource damage. As a result, BLM retains the
discretion to address resource problems on a timely basis.
One comment that opposed the rule stated that BLM should not adopt
grazing regulations that will hurt the land in the short term while
betting that long term studies will lead to better land
[[Page 39427]]
conditions at some indefinite time in the future.
BLM believes that adoption of the proposed rule will lead to
improved land conditions in the long-term as indicated in the analysis
in section 4.5 of the Addendum to the EIS. That analysis explains that
some adverse impacts are unavoidable, but in the long-term more
comprehensive and sustainable decisions would be developed by relying
on data and information collected through monitoring.
One comment stated that BLM should acknowledge that western
rangelands are in decline due to improper grazing strategies, and lack
of appropriate measures or changes to deal with drought, fire, exotic
weeds, and excessive horse populations.
In the Rangeland Reform rule we recognized a need to prioritize our
improvement of rangeland health. As of the end of 2002, we had
completed evaluations on 7,437 higher priority allotments. We
determined approximately 16 percent of those allotments not to be
meeting land health standards because of current livestock grazing
management. We conclude from this that generally most public rangelands
are not in decline, or at least not to levels that we deem to have
failed to achieve the standards and conform with the guidelines. To the
extent that more than 16 percent of allotments may have so failed, we
have found that grazing is not a significant cause. We have begun
actions to address the problems we identified. Whenever a grazing
decision is appealed, changes in grazing management may be delayed.
Responding to appeals, preparing for hearings, and responding to
requests for data associated with the appeals also requires dedication
of personnel and funds that would otherwise be used to implement
effective changes to achieve improvement in condition of resources on
the very allotments that need to have changes made. The changes made in
this rule will improve our ability to implement effective corrective
measures--taking time to gather more data, if necessary, and engage
knowledgeable and affected parties will improve the likelihood of an
effective solution, and participation by the affected operator in
determining the solution will increase his likelihood of complying with
the corrective measures, and make BLM decisions less susceptible to
appeal. This rule also improves BLM's ability to focus fiscal resources
on those areas not meeting standards because of current livestock
management, and to develop appropriate actions that will result in more
collaboration and cooperation with permittees and lessees in addressing
problems. We believe that we have adequate measures in place in the
grazing regulations to deal with emergency situations such as drought
and fires, or where continued grazing use poses an imminent likelihood
of significant resource damage (section 4110.3.3(b)). The long term
goal of this final rule, as was the case in 1995, is to reverse
declines in western rangeland health, in those areas where there are
declines, through improved consultation and cooperation with ranchers,
and interested state and local authorities, as well as the interested
public, in devising means to restore degraded areas and maintain
currently healthy areas.
The number of appeals has increased from 48 in 1998 to 139 in 2002,
diverting resources from making on the ground improvements in rangeland
health. By developing cooperative instead of adversarial roles, the
fiscal resources being spent on appeals could be made available for
making appropriate management changes and on the ground improvements.
Comments stated that BLM should not adopt the new regulations
because they will weaken wildlife protections. One comment stated that
BLM's analysis shows that the regulatory changes would not mitigate
declines in populations of mule deer, sage-grouse (Centrocercus
urophasianus), and many other species, except when ranchers agree not
to graze for 3 years. Another comment asked BLM to show by allotment
the current status and population trends of greater sage-grouse and
analyze the cumulative effects of the regulatory changes. One comment
asked BLM to discuss the agency's capacity, in terms of budget and
personnel, to assess and monitor the status of sage-grouse, and how its
capacity would be affected by the regulatory changes. Another comment
along the same lines asked that we consider the potential impacts of
implementing the proposed rule on our ability to implement the National
Sage-Grouse Habitat Conservation Strategy. Other comments urged BLM to
add specific sage-grouse conservation measures to the regulations. A
comment stated that BLM should consider the effects of the rule on non-
game bird species that are likely candidates for listing as threatened
or endangered species. Another said that BLM should consider values of
wildlife displaced by livestock on public lands in order to address the
loss of wildlife associated recreation which has occurred under current
management. One comment disagreed with the DEIS's statement that the
proposed rule would have little or no effect on wildlife, stating that
the proposed rule would fundamentally change the way BLM manages
rangelands and have ``profound'' impacts on wildlife. One stated that
the changes in the proposed rule may in some circumstances constrain
biologists and range conservationists from recommending and
implementing management changes in response to conditions that
compromise the long-term health and sustainability of rangeland
resources. The comment stated that these aspects of the rule would have
the potential to be detrimental to fish and wildlife resources.
The final rule does not alter BLM's mission of managing the public
lands under the multiple use and sustained yield standard as provided
in FLPMA. Grazing is just one of the many multiple uses for the public
lands. The final rule will not prevent specialists from recommending
and implementing management changes in response to conditions that may
compromise the long-term health and sustainability of rangeland
resources. BLM has flexibility to effect changes in grazing management
to address rangeland health, including:
The use of permit/lease terms and conditions to achieve
resource objectives (section 4130.3);
Modification of terms and conditions when active use or
related management practices are not meeting plan objectives or
standards and guidelines (section 4130.3-3);
Suspension of active use in whole or in part due to the
reasons set forth in section 4130.3-3 based on monitoring, field
observations, ecological site inventory or other acceptable methods
(section 4110.3-2); and
Issuance of immediate full force and effect decisions to
close areas to grazing when the authorized officer concludes that soil,
vegetation, or other resources require immediate protection because
continued grazing use poses an imminent likelihood of significant
resource damage.
The comments appear to assume that the proposed changes make
significant revisions in the existing regulations. This is not the
case. The changes are largely administrative in nature, and are
designed to ensure a more balanced approach to rangeland management, to
improve working relationships with permittees and lessees, to protect
rangeland health, and to improve efficiency and effectiveness,
including bringing the regulations into compliance with court
decisions. The proposed rule would not fundamentally change the
[[Page 39428]]
way BLM manages land and would not have a ``profound'' effect on
wildlife. The proposed revisions do not alter BLM's responsibilities
under existing statutes, including the Migratory Bird Treaty Act, the
Endangered Species Act, the Sikes Act, and applicable Executive Orders.
In addition, the standards and guidelines under section 4180.2 remain
intact. As we have stated, BLM acknowledges that some of the changes in
implementation may have short-term impacts on wildlife on a small
portion of BLM allotments. Any short-term impacts should be outweighed
by long-term rangeland health benefits. In short, we have not changed
our view that most of the changes in the final rule will have little or
no detrimental effect on wildlife.
Land use plans and site-specific analyses are the proper vehicles
for considering the site-specific effects of grazing on wildlife.
General impacts on wildlife are addressed in the EIS. Allowing
adjustments in active use in excess of 10 percent to be implemented
over a 5-year period could have short term adverse effects on plants
and wildlife. Specific impacts would be determined on a case by case
basis in site-specific NEPA analyses and would identify possible
mitigation measures. Changes in active grazing use in excess of 10
percent are infrequent. Also, the provision for phased in changes in
use would not apply if it conflicted with an applicable law, e.g., if
immediate implementation was a condition of a biological opinion under
the ESA. The 5-year phase-in provision for reductions in stocking rates
that exceed 10 percent of current stocking may affect Special Status
Species not listed as threatened or endangered under the ESA. Any
adverse effects on such species, however, should be limited to very few
grazing allotments. BLM range assessments through fiscal year 2002
indicate that existing livestock grazing was a significant factor in
not meeting land health standards on about 16 percent of the allotments
that had been assessed and evaluated. Of that 16 percent, a lesser
number of allotments required stocking rate reductions exceeding 10
percent. Many grazing system changes involved management of livestock
rather than stocking rates, such as by limiting livestock access to
certain portions of the allotments. Furthermore, under section 4110.3-
3(b), if BLM determines that resources require immediate protection or
continued grazing use poses an imminent likelihood of significant
resource damage, we can immediately close allotments or portions of
allotments or modify grazing use to protect the resources in question.
Providing BLM up to 24 months to propose and analyze appropriate
action to address failure to meet rangeland health standards may
adversely affect wildlife in the short term, possibly including Special
Status Species not listed as threatened or endangered, but will benefit
wildlife in the long term. Based on the evaluations completed by the
end of FY2002, this provision would affect less than 16 percent of
allotments. The provision that allows BLM to extend the timeframe
beyond the 24 months would only be invoked if failure to comply with
legal requirements was outside of BLM's control, i.e., the
responsibility of another agency. The most likely occurrence of that
nature would be if there was a delay due to the requirements of the ESA
not being fully met. Concerns and issues regarding specific species
such as sage-grouse and any specific threatened, endangered, or other
special status species are fully addressed in land use or activity
planning or permit or lease issuance or renewal environmental analyses.
Specific detailed analysis for individual species is beyond the scope
of this rule. In developing these regulations, BLM ensured that it had
the mechanisms in place to take appropriate action to protect, as
necessary, wildlife resources. The EIS and Addendum discuss the sage-
grouse conservation strategy at the end of Chapter 1, and address the
impacts of this rule on the sage-grouse strategy in the cumulative
impacts analysis in Chapter 4. Effects on wildlife in general are
discussed are analyzed in Sections 4.3.7 through 4.3.9 of the EIS and
Addendum.
Finally, these changes are based on our experience implementing the
regulations adopted in 1995. The changes here do not significantly
alter those provisions adopted in 1995 that were examined in the
accompanying EIS for that rule. As discussed in that EIS, the changes
adopted at that time were expected to improve rangeland health,
including habitat for sage-grouse. The timing and phase-in provisions
adopted here are not expected to have significant effects on the
improvements in rangeland health derived from the 1995 regulatory
changes. BLM's National Sage-Grouse Habitat Conservation Strategy
(2004) reflects the combined Federal and state response to the sage-
grouse situation, and outlines how BLM intends to achieve its goal of
managing public lands to maintain, enhance, and restore sage-grouse
habitats while providing for sustainable uses and development of public
lands. The commitments made in the strategy are unaffected by the final
grazing rule.
One comment stated that procedures followed by BLM in the
management of public rangelands contribute to petitions for Federal
listings under the ESA, and ultimately to more restricted and costly
management of Federal lands. The result of this management is rangeland
with reduced capacity to support native big game and upland game
species, which has an adverse effect on western cultural, social, and
economic values.
This rule focuses primarily on improving the efficiency of
administrating livestock grazing on public lands. During each step of
the land use planning process, BLM considers and analyzes the potential
effects on wildlife. This consideration begins at the broad land use
planning phase, and continues through allotment management planning,
activity planning, and during development of terms and conditions of a
grazing permit or lease. We recognize that recreation and tourism,
including the viewing or hunting of animals, have increased in their
relative contribution to many local and regional economies. The rule
adopted today does not alter the way BLM considers potential effects on
wildlife. Therefore, this rule is not expected to have an observable
direct impact on the ability of the public to enjoy wildlife, and will
not adversely affect the economic values associated with wildlife.
Specific impacts on local or visiting wildlife enthusiasts would be
more appropriately addressed in any subsequent land use plan or
allotment management plan analysis. Finally, as stated above, these
changes are based on our experience implementing the regulations
adopted in 1995. The changes here do not significantly alter those
provisions adopted in 1995 that were examined in the accompanying EIS
for that rule. The provisions adopted here are not expected to have
significant effects on the improvements in rangeland health derived
from the 1995 regulatory changes.
Several comments raised a number of other environmental factors
that BLM should discuss, and stated that grazing has adverse effects on
them: air quality, wild horses and burros, the prevalence of invasive
weed species. Comments stated that the proposed rule would encourage
the spread of invasive species, threatening shrub-steppe habitat, and
damaging riparian and wet areas.
These issues are discussed in detail in the EIS in sections 4.3.6,
4.3.9, and 4.3.2, respectively. To the extent that the fundamentals of
rangeland health
[[Page 39429]]
and the standards and guidelines for grazing administration address
these issues in subpart 4180, the final rule makes no substantive
changes in the fundamentals or standards themselves. Addressing more
specific impacts on wild horses and burros is outside the scope of the
rule. Specific impacts on wild horses and burros are more appropriately
addressed in subsequent land use plans, landscape-level analyses, or
undertaking-specific analyses.
Comments also asked BLM to impose various levels of restriction on
grazing in the rule, including eliminating public land grazing
altogether on the grounds that domestic livestock are exotic to the
western range. Some urged us not to increase grazing in arid lands.
Another comment suggested that BLM should require permittees and
lessees to fence all riparian areas to eliminate livestock as a cause
of degraded riparian areas. Others advocated eliminating grazing in
riparian areas.
The final rule does not directly result in a change in levels of
active use on arid lands or anywhere else. The rule continues to allow
BLM to manage the public rangelands to address adverse impacts. For
example, the rule retains BLM's authority to close allotments or
portions of allotments to grazing by any kind of livestock or to modify
authorized grazing use when we determine and document that continued
grazing use poses an imminent likelihood of significant resource
damage. Thus, if a riparian area is threatened with significant damage,
we can have it fenced to exclude livestock. The rule also retains the
fundamentals and standards and guidelines provisions of the rule to
address rangeland health.
Although fencing of riparian areas to improve grazing management is
appropriate under certain circumstances, a requirement to fence all
riparian areas would be impractical due to potential conflicts the
fences might pose with other multiple uses such as recreation and
wildlife habitat, and because of the expense of construction and
ongoing maintenance. Therefore, we have not included such a requirement
in the final rule.
F. Alternatives Considered
Three general objectives for the changes to the regulations were
identified in the Draft EIS (Section 1.2.2): (1) Improving working
relationships with permittees and lessees; (2) protecting the health of
the rangelands; and (3) increasing administrative efficiency and
effectiveness of the process of managing livestock grazing on the
public lands, including a means for resolving legal issues. The
preceding section of this Preamble under Purpose and Need shows which
objective primarily impels each change in the regulations.
The regulatory changes in this final rule are relatively narrow in
scope, both individually and cumulatively. Most changes respond to a
specific concern that arose through experience implementing the 1995
regulations. The changes clarify or improve specific elements of the
1995 regulations. The changes were combined in a single rulemaking,
including public participation and the NEPA process, because it was the
most efficient way to amend those portions of the regulations. The
changes in the regulations and alternatives to them do not fit into
themes commonly used for the range of alternatives in an EIS concerning
public land management, e.g., various levels of resource protection or
resource use. Therefore, those categories were not used to frame the
alternatives in the EIS.
The sections of the 1995 regulations for each of the changes to the
regulations are discussed in Section 2.1 of the Draft and Final EIS (No
Action). The changes are discussed in Section 2.2 (Proposed Action).
Table 2.5 compares the three alternatives evaluated in detail. Some
regulatory changes are primarily editorial. Some changes are more
controversial than others.
Additional alternatives, in the form of different combinations of
changes, were not developed for the EIS because each of the regulation
changes is relatively independent of the others. Thus, there are many
combinations of the 18 elements that could be changed or not changed
and combined into an alternative. Such alternatives would not provide a
clear basis of choice because the differences between them would be
small. The broad comments regarding alternatives fall into several
subject areas, which are addressed below.
Some comments recommended major changes to the grazing program.
Some comments asked BLM not to permit grazing on arid lands. Others
advocated eliminating grazing in riparian areas. Other comments
recommended use of long-term rest to help achieve standards. One
comment recommended reducing stocking rates by 25 percent on allotments
not meeting standards of rangeland health. Some comments recommended
that the alternatives considered address the relationship between
livestock grazing and other uses of the public lands. Some comments
recommended that BLM develop alternatives to address a number of
specific aspects of grazing management, such as: (1) Determining the
capacity of the land to support wildlife, watershed function, and
livestock; (2) determining livestock stocking rates; and (3) requiring
allotments to demonstrate statistically significant improvement.
In light of the broad sweep of the changes in the regulations in
1995 and the accompanying analysis in the EIS at that time, and based
on the years of experience in implementing those regulatory changes, we
have determined that meeting our purposes and needs-- the health of the
public rangelands, improved working relationships with permittees and
lessees, and improved administrative efficiency--does not require major
changes in the grazing program.
The matters identified in these comments generally are best
considered in land use planning or otherwise on a site-specific basis,
not in a rule related to overall regulatory provisions. The
relationship between livestock grazing and other uses of the public
lands, and the capacity of the land to support wildlife, watershed
function, and livestock, are questions of multiple use management,
i.e., how public lands and their various resources ``are utilized in
the combination that will best meet the present and future needs of the
American people.'' 43 U.S.C. 1702(c) (definition of ``multiple use'').
Pursuant to Section 202 of FLPMA (43 U.S.C. 1712), BLM prepares
resource management plans (RMPs) to consider and balance the multiple
uses that may be appropriate for tracts of public lands. Decisions
determining or adjusting livestock stocking rates, or determining how
to measure an allotment's improvement in rangeland health, ordinarily
require site-specific information that can most efficiently be obtained
by developing an allotment management plan (AMP) or a grazing decision.
Some comments suggested that the EIS should have included an
alternative more directed at conservation interests and the
recommendations of environmental advocates, such as one that includes
sage-grouse conservation measures. They believed that the regulation
changes are biased toward the interests of the livestock industry and
that the livestock industry would benefit at the expense of other users
and the environment. One comment urged BLM to add specific sage-grouse
consideration measures to the alternatives considered.
BLM does not believe that these changes will benefit the livestock
industry at the expense of other users and the environment. The rules
[[Page 39430]]
continue to promote consultation and coordination with other users,
with other agencies and governments, and with tribes (4120.5). The
long-term objective of requiring livestock grazing operations to meet
standards for rangeland health has not been changed from the 1995
regulations. As discussed in the Draft and Final EIS for Rangeland
Reform '94, the overall changes adopted in that rulemaking were
anticipated to have a number of positive environmental impacts,
including positive impacts for sage-grouse. The rule now under
consideration is designed to make refinements in the existing
regulations and is not a significant departure from the regulations as
revised in 1995. We believe that standards for rangeland health can be
achieved without the major changes that may have been included under a
substantially different ``conservation alternative'' suggested by some
of the comments. Such an alternative was considered in the EIS for
Rangeland Reform '94 and the anticipated effects on many livestock
operators who are dependent on public rangelands for their livelihood
were displayed in that document. The changes to the regulations adopted
here were never intended to be either a comprehensive restructuring of
the grazing program or a replacement of the 1995 grazing regulations.
We do not believe that a broad ``conservation alternative'' which makes
major changes to the livestock grazing program falls within a
reasonable range of alternatives that meet the purpose and need of the
action under consideration in the current EIS. Measures to protect
sage-grouse and their habitat are appropriately considered in the
Bureau's sage-grouse conservation strategy, and at the land use plan
and/or permit issuance levels. We addressed the sage-grouse
conservation strategy generally in Chapter 1 and Chapter 4 of the EIS.
Some comments suggested that the alternatives analyzed in detail in
the EIS do not provide a clear basis for choice. Some comments focused
on a concern that the alternatives in the EIS do not represent a
reasonable range of alternatives because they are too similar. Some
comments stated that BLM should prepare an EIS that thoroughly analyzes
the cumulative impacts of a range of alternative actions that will
truly enable the agency to manage grazing lands under its jurisdiction
responsibly. Some comments suggested an alternative that would provide
for the development of baseline data on the grazing capacity of public
lands. Some comments said that BLM cannot so narrowly define the scope
of a project that it forecloses a reasonable consideration of
alternatives. (Colorado Environmental Coalition v. Dombeck, (185 F.3d
1162, 1174 (10th Cir. 1999)). Many comments recommended that BLM should
examine alternatives that would make major changes in the grazing
program or in the relationship between livestock grazing and other uses
of the public lands.
The broad-ranging analysis suggested by these comments was
addressed in Rangeland Reform in 1994 and the accompanying EIS for the
1995 regulatory changes. As explained in the EIS for this rulemaking
under ``The Purpose of and Need for the Proposed Action,'' some of
these revisions to the grazing regulations were developed as a means of
achieving BLM's rangeland management objectives, including meeting the
standards for rangeland health. It is not BLM's intent to revise major
aspects of multiple use management or the livestock grazing program in
this rule. BLM's intent is to bring efficiencies to the existing
livestock grazing program, thus improving rangeland health on all
allotments. The regulatory changes are narrow in scope, and include no
changes in grazing fees, the fundamentals of rangeland health, or the
standards and guidelines for grazing administration. They leave the
majority of the 1995 regulatory changes in place. The changes are
driven by specific issues and concerns that BLM has recognized, either
based on our own experience or from input by stakeholders. Additional,
markedly different, alternatives would not meet the purpose of and need
for the action. While there may be conflicts among resource uses on
specific sites that may point to a need to change the way in which
livestock grazing occurs on an allotment, such conflicts are more
appropriately resolved on an allotment-specific basis, rather than in
the grazing regulations. We believe the three alternatives analyzed in
detail in the EIS provide a reasonable range of alternatives that best
provides a meaningful comparison for achieving the purpose and need
described in the EIS.
Some comments expressed concern over the relative lack of
quantification of impacts in the EIS. They contended that this limits
BLM's ability to compare alternatives.
At the rulemaking tier of decision, such as in the case of
developing this rule, meaningful quantification is generally not
appropriate. Quantification is more appropriate at site-specific levels
of decision, where on-the-ground issues are analyzed and resolved. To
provide perspective on how the regulation changes may affect all
allotments, the EIS provides relevant information (see Sections 4.3 and
5.4.5) on the number of allotments where assessments have been
completed, and the percentage of those that meet standards for
rangeland health. Of those that do not meet the standards, we also
provide the percentage of allotments where standards are not met
because of livestock grazing on the allotment, and where active use may
need to be changed by more than 10 percent. BLM will make grazing
decisions to change management practices or levels of grazing on all
allotments that do not meet standards, if we find that failure to
achieve the standards is due in significant part to existing grazing
management practices or levels of grazing use. The time frames amended
under this final rule may also affect those allotments. The numbers of
allotments where assessments have been completed, and the percentage of
those that meet standards and guidelines for rangeland health, provide
a perspective on the proportion of allotments where this final rule,
e.g., in section 4110.3, may apply. Because this final rule does not
make any of the site-specific decisions on where livestock grazing
occurs and how, BLM's ability to present and analyze quantifiable
estimates in the EIS is limited.
Some comments recommended the No Action alternative, or at least
the No Action alternative with regard to one or more of the changes.
The No Action alternative considers that each of the changes would not
occur. Some comments stated they preferred the No Action alternative
because they believed that the proposed changes were designed to
undermine the amendments made in the regulations in 1995. Some comments
believed the regulatory changes could open the door to potentially
adverse environmental consequences.
The changes in the regulations were designed to accomplish one or
more of the three objectives stated at the beginning of this section of
the preamble and in Section 1.2.2 of the EIS, Purpose and Need by
Topic. As in 1995, one of the overall objectives of this final rule is
to amend the regulations to assist BLM in managing the grazing program
in a way that makes progress toward achieving the standards for
rangeland health on all allotments. As experience has shown, some
provisions in the 1995 rule have impaired BLM's flexibility to meet
this goal. These have included the 1995
[[Page 39431]]
provisions regarding the relatively short timeframe (before the start
of the next grazing year) within which BLM must develop and implement
an appropriate remedial action after BLM determines that current
livestock grazing practices significantly contribute to the non-
achievement of one or more standards or do not conform with guidelines,
the requirement that the United States must hold 100 percent of the
title to permanent structural range improvements constructed under a
Cooperative Range Improvement Agreement, the requirement the United
States must hold, to the extent authorized by state law, the right to
use water on public land for the purpose of livestock watering on
public land and the requirement that authorized nonuse of a grazing
permit is limited to no longer than 3 consecutive years. The latter
arose from the Federal Court invalidation of the provision for
conservation use permits, which created a need for more flexibility in
authorizing temporary nonuse to promote rangeland recovery.
The most useful comparison for the changes in the regulations is to
compare the changes (Proposed Action) to the 1995 regulations (No
Action). Most of the regulation changes do not lend themselves to being
implemented in stages or degrees of implementation in a way that would
materially affect environmental impacts or rangeland health. Those that
do are addressed in the section-by-section analysis of comments.
Many comments expressed concern that alternatives should have been
considered for several of the changes in specific sections of the
regulations. These specific provisions include the 24-month period
after a determination on an allotment that livestock grazing is a
significant factor failing to achieve the standards for rangeland
health under section 4180.2(c), and the 5-year period for phasing in
reductions in active use of more than 10 percent, under section 4110.3-
3(a).
We examined what we believe to be an appropriate range of
alternatives in the draft EIS, and have not added additional ones in
the final EIS. When considering time limitations, an infinite array of
options is theoretically possible. The alternatives considered here
were reasonable, given the nature of the rule, and sufficiently
distinct to allow for meaningful comparisons in the analysis.
Currently, section 4180.2(c) requires that BLM take appropriate
action as soon as practicable but no later than the start of the next
grazing year, after we determine that grazing is a significant factor
in the failure to achieve a rangeland health standard or conform with a
guideline. Similarly, section 4180.1 requires appropriate action no
later than the start of the next grazing year, after BLM determines
that grazing management needs to be modified to ensure that the
conditions described by the fundamentals of rangeland health exist.
While BLM prefers to take appropriate action as quickly as possible,
recent experience has demonstrated that complex circumstances can
sometimes require extended periods to form effective long-term
solutions. The lack of standards attainment in rangelands, and the
concomitant inability to achieve and provide the physical and
biological conditions described by the fundamentals of rangeland
health, often is a result of gradual deterioration over many years due
to the interaction of many factors, including inappropriate livestock
grazing. The process to develop action plans to determine and implement
appropriate corrective appropriate action can be complex. Factors
complicating the formulation of action plans include the legal
requirements of NEPA, the National Historic Preservation Act (NHPA),
and ESA; water rights adjudications; and the presence of multiple
permittees on an allotment. We determined the proposed action timeframe
of 24 months to be the shortest reasonable timeframe that would
accommodate the vast majority of corrective actions. The final rule
added language to recognize that, in some instances, even more time may
be required due to delays outside the control of BLM. We initially
considered other deadlines, such as 12 or 18 months, but we viewed them
as inadequate to deal with the more complicated situations. We
considered removing all timeframe guidance, but determined that a
reasonable deadline would be useful to help ensure that BLM actions
were not inadvertently delayed. We have removed the action timeframe
requirement in section 4180.1 for the reasons stated in section V of
this rulemaking and in the Addendum to the EIS.
BLM examined two alternatives for active use changes greater than
10 percent in the EIS, in addition to the current regulations. Scoping
indicated that permittees and lessees supported a 5-year option to
address the financial shocks that can come in the rare instances when
large decreases are made in active use. Scoping did not indicate strong
support for longer or shorter timeframes. BLM addressed the impacts
associated with mandatory or discretionary phase-in systems. This was a
reasonable range of alternatives for this issue.
Comments that address specific sections of the regulations and
BLM's responses are addressed under the section-by-section analysis and
response to comments.
G. Cross-cutting Issue-related Comments: Interested Public; Planning;
Monitoring; and Enforcement
Many comments addressed issues that pertain to the grazing program
as a whole or to multiple sections of the regulations. We will respond
to these comments in this section of the preamble on the role of the
interested public, planning, monitoring, and enforcement.
1. Role of the Interested Public
Numerous comments addressed the role of the interested public in
grazing management. The proposed rule contained a definition change for
the term and also modified the special involvement opportunities for
those with interested public status. BLM has considered the comments
but has decided not to make major changes in the rule. The final rule
represents what BLM believes to be the proper balance between public
participation and the need for flexibility in day-to-day grazing
management operations.
Under the previous regulations, one could obtain interested public
status by (1) making a written request to be treated as the interested
public, or (2) by submitting comments regarding grazing management on a
specific allotment during formal public comment periods. Under the
final rule, submitting a written request is sufficient to obtain
interested public status initially, but this alone is no longer
sufficient to maintain that status. Instead, subsequent comment or
other participation in the decisionmaking process is necessary. This
requirement is designed to avoid an inefficient use of Federal
resources on clerical duties associated with persons and entities that
have no longer expressed an active interest in the issue. Submitting
comments during formal public comment periods, however, is still enough
to qualify as a member of the interested public. In short, those who
request the status must follow up with later actions, while those who
initially demonstrate their interest via comments automatically qualify
as the interested public for that decision process. Any member of the
general public may initially achieve interested public status through
these means, and former members of the interested public may
[[Page 39432]]
also regain that status through these same means at any time.
Many were concerned that this definition change would unduly limit
participation by the public. On the other hand, some comments on the
proposed rule expressed the opinion that the term was still too broadly
defined, and more requirements should be implemented before one
qualifies as a member of the interested public. It is important to
remember that the consultation opportunities available to the
``interested public'' under the grazing regulations are not the full
extent of public involvement in BLM grazing and rangeland management
matters. In addition to pursuing the opportunities afforded under the
grazing regulations, any member of the public may attend meetings of
Resource Advisory Councils, and may provide input and comments
regarding general grazing policy, meet with BLM managers and/or staff
upon request, and participate in the land use planning and NEPA
analysis and decision-making processes that concern rangelands. By
modifying the definition, though, BLM hopes to avoid the sometimes
inefficient use of Federal resources that has been associated with the
interested public system, while still maintaining a valuable outlet for
public participation. The comments relating to the definition of
interested public are addressed in more detail in the Section-by-
Section Analysis portion of the preamble at section 4100.0-5.
The proposed rule also included changes in the role of the
interested public. Special consultation requirements were reduced in
situations involving day-to-day management activities but retained for
broader level planning decisions that guide daily activities. For
example, BLM is required to consult, cooperate, and coordinate with the
interested public when planning range improvement projects, developing
allotment management plans, and apportioning additional forage. The
interested public is also provided, to the extent practical, an
opportunity to review and provide 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 terms and conditions of a permit or lease. Such reports include
monitoring reports, evaluations of standards and guidelines, BAs or
BEs, and any other formal evaluation reports that are used in the
decisionmaking process. Additionally, there are multiple opportunities
for public involvement when land use plans are amended or revised.
Under the final rule, though, BLM will no longer formally consult with
the interested public when undertaking routine management tasks such as
renewing individual grazing permits, actually modifying a term in a
grazing permit (as opposed to reviewing reports on monitoring and
supporting data), or issuing temporary nonrenewable grazing permits.
Many comments opposed these reductions in consultation with the
interested public. Some recreationists and other non-grazing public
land users were particularly opposed to having opportunities for the
interested public limited in any way. These comments emphasized the
view that multiple use public lands are best managed when multiple
interests are involved with both planning level and implementation
level decisions. Some stated that while the system may lead to some
inefficiency, when viewed from a grazing economics perspective,
democratic principles favored more public involvement on public lands.
Numerous comments supported the changes and expressed the view that
the interested public consultation system has led to decisionmaking
gridlock. Many of these comments noted the important role public input
plays at the planning level but argued that the involvement in routine
decisions is counterproductive for all involved. Some expressed the
view that only those with an economic interest should participate in
allotment-level decisions.
We have retained the proposed changes in the final rule. BLM is
confident that consultation with the interested public on the larger
scale planning decisions will continue to provide ample opportunity for
public input. These broader scale decisions then guide the day-to-day
management. The changes will, in turn, allow these daily decisions to
be made in a more timely and efficient manner. The changes are
addressed in more detail later in this section of the preamble at
sections 4110.2-4 (allotment boundary adjustments), 4110.3-3
(reductions of permitted use), 4130.2 (issuance and renewal of grazing
permits and leases), 4130.3-3 (modifications to permits or leases), and
4130.6-2 (nonrenewable permits and leases).
2. Land Use and Allotment Management Planning
BLM received numerous comments addressing the types of uses that
are generally allowed on public lands. They suggested eliminating some
uses or dedicating lands to a single use. The comments included
eliminating livestock grazing on areas with wild horses and burros,
establishing rules to optimize wildlife habitat, phasing out livestock
grazing completely, selling public lands, not allowing any commodity
uses, and dedication of land for water conservation.
BLM manages public lands in accordance with numerous laws passed by
Congress, including FLPMA, which requires these lands to be managed for
multiple use and sustained yield. FLPMA defines ``multiple use'' as
``the management of the public lands and their various resource values
so that they are utilized in the combination that will best meet the
present and future needs of the American people; making the most
judicious use of land for some or all of these resources or related
services over acreages large enough to provide sufficient latitude for
periodic adjustments in use to conform to changing needs and
conditions; the use of some of the land for less than all of the
resources; a combination of balanced and diverse resource uses that
takes into account the long-term needs of future generations for
renewable and nonrenewable resources, including, but not limited to,
recreation, range, timber, minerals, watershed, wildlife and fish, and
natural scenic, scientific and historical values; and harmonious and
coordinated management of the various resources without permanent
impairment of the productivity of the land and the quality of the
environment with consideration being given to the relative values of
the resources and not necessarily to the combination of uses that will
give the greatest economic return or the greatest unit output.'' 43
U.S.C. 1702(c).
BLM cooperatively develops local land use plans in order to
determine balanced, appropriate, and sustainable land uses, following
processes defined by various laws, regulations, and policies. These
grazing regulations govern management of grazing on lands that have
been determined through land use planning to be appropriate for
livestock grazing. BLM's land use planning processes are governed by
regulations in 43 CFR part 1600, and are not addressed in this rule.
The sale of BLM lands, while permitted by FLPMA, is outside the scope
of this rule.
Comments stated that BLM should determine the forage capacity of
its land using scientific livestock utilization rates and re-set
permitted use or preference to reflect that condition. The comments
went on to say that the fact that AUMs are in suspension demonstrates
that the range cannot support those levels of grazing.
This issue is outside the scope of this rule. BLM makes the
determinations referred to in the comment during the planning process.
AUMs are in
[[Page 39433]]
suspension due to current conditions that may not be permanent, such
as, for example, drought conditions. Forage availability may also
change in the future as a result of range improvements or improved
health of the rangelands.
We received several comments that addressed our land use planning
processes, suggesting that better control of motorized vehicle use and
access would improve rangeland conditions. Others suggested that BLM
should lease lands for recreation, wildlife, and water conservation
rather than assign grazing as a sole use. Still others urged BLM not to
recommend or provide interim protection for more Wilderness Study Areas
or Wild and Scenic Rivers, stating that their management overtaxes
BLM's capability.
BLM develops local land use plans to address land use activities
such as off-road vehicle and other recreational uses, wildlife, and
water conservation uses. Local land use planning allocations are beyond
the scope of this rule. BLM will not recommend or designate any
additional Wilderness Study Areas under the Utah Wilderness Settlement
and its application, by policy, to BLM lands outside of Utah. IM No.
2003-274 and IM No. 2003-275. The regulations governing management of
Wilderness Areas and Wild and Scenic Rivers are in 43 CFR part 6300 and
43 CFR 8351.2, respectively. Those regulations are beyond the scope of
this rule.
A comment stated that Federal rangeland health standards demand
that BLM's rule focus decisionmaking on management objectives stated in
land use plans, activity plans, and grazing decisions.
The rule provides that its objectives will be realized in a manner
consistent with land use plans. The regulations also provide that
active use is based on the amount of forage available for livestock
grazing as established in the land use plan, activity plan, or decision
of the authorized officer. The regulations allow BLM to make changes in
the grazing preference as needed to conform to land use plans or
activity plans, to apportion additional forage to qualified applicants
for livestock grazing use consistent with multiple-use management
objectives specified in the applicable land use plan. BLM may modify
terms and conditions of permit and leases when the active use or
related management practices do not meet management objectives
specified in the land use plan, allotment management plan or other
activity plan, or an applicable decision.
A comment stated that BLM has not effectively addressed resolution
of multiple use conflicts that lead to demands for livestock-free
lands.
FLPMA requires BLM to manage lands for multiple uses. We resolve
conflicts among competing uses on individual tracts of public land
through land use planning, with participation by the interested public
and by or on behalf of the proponents of the competing uses.
One comment stated that either BLM should establish regulations
that provide for making land use planning-level determinations
regarding whether public lands are ``chiefly valuable for grazing'' as
described in the October 2002 Solicitor's Memorandum, or the Secretary
should withdraw that memorandum and provide for grazing permit
``retirement'' within its land use planning process or through its
permit issuance or renewal processes.
The comment alludes to an ``M-Opinion'' issued on October 4, 2002.
M-Opinions (i.e., ``major'' opinions) usually are responses to requests
by agencies of the Department of the Interior regarding the
interpretation of statutes administered by the Department. M-Opinions
are signed by the Solicitor or his designee, may receive the
concurrence of the Secretary, and are binding on all agencies of the
Department. BLM believes we have sufficient guidance to consider the
issue of ``grazing retirement,'' and so does not need a regulatory
provision to address this topic.
Grazing retirement and the TGA's ``chiefly valuable'' standard have
been discussed in two recent Solicitor's memoranda, as well as the 2002
M-Opinion. In one memorandum, Solicitor Leshy concluded that Congress,
at 43 U.S.C. 1752(c) and 1903(c), specifically provided for the
possibility of retiring public lands from livestock grazing, but that
BLM must make such a decision in a land use plan or an amendment to a
land use plan. Memorandum to the Director of BLM from the Solicitor
(January 19, 2001).
While the later M-Opinion supersedes the 2001 Solicitor's
memorandum, it agrees that land use planning is an appropriate process
for considering retirement of grazing, and that whenever the Secretary
retires public lands from grazing, she must determine that such lands
are no longer ``chiefly valuable for grazing and raising forage
crops,'' within the meaning of Section 1 of the TGA, 43 U.S.C. 315. In
addition, the M-Opinion concludes that a decision to cease livestock
grazing is not permanent. Memorandum to the Secretary from the
Solicitor, M-37008 (October 4, 2002). The M-Opinion was later clarified
in a memorandum stating that whenever the Secretary considers retiring
grazing permits in a grazing district she must determine whether such
lands remain chiefly valuable for grazing if any such retirement may
ultimately result in the modification of the district's boundaries.
Memorandum to the Assistant Secretary for Policy, Management and
Budget, Assistant Secretary for Land and Minerals Management, and the
Director of BLM from the Solicitor (May 13, 2003).
One comment stated that BLM should provide for permit or lease
retirement with compensation to the permittee.
The suggestion that permittees and lessees be compensated for
grazing retirement is not adopted. BLM lacks statutory authority to
provide for such compensation.
One comment stated that, if BLM considers itself obligated to
preserve public land ranching in the West in the face of competing
economic pressures for use of ranches and ranchland, then we should
reconsider previous policy proposals that were dropped, such as
conservation easements and acquisition of ranches, because these may be
creative ways to sustain viable operations without inducing further
damage to the land.
Under FLPMA, BLM is obligated to manage the public lands on the
basis of multiple use and sustained yield unless otherwise specified by
law. FLPMA includes livestock grazing as one of the principal or major
uses of the public lands, along with fish and wildlife development and
utilization, mineral exploration and production, rights-of-way, outdoor
recreation, and timber production. BLM never proposed acquisition of
ranches as a policy proposal. BLM dropped consideration of exchanging
public lands for conservation easements on private lands after comments
received in the spring of 2003 indicated general public opposition to
this policy proposal.
One comment urged BLM to update our allotment management plans.
BLM usually determines which allotments require allotment
management plans (AMPs) in land use plans. The timing, development, and
updating of AMPs is determined through BLM's budgeting and planning
processes, not in the grazing regulations. Therefore, this issue is
outside the scope of this rulemaking.
3. Monitoring
Many comments addressed monitoring on public lands, and suggested
ways that BLM could use monitoring to improve public land management.
Comments stated that BLM should not authorize grazing on areas where it
lacks adequate data to
[[Page 39434]]
determine that standards are met or to ensure that resource damage is
avoided. They recommended that BLM set up exclosures as control sites
representing various major ecological types of land in order to
establish benchmarks for assessing grazing management. Discussions of
other comments on monitoring directed at specific regulations appear
elsewhere in this preamble under the appropriate section.
BLM authorizes livestock grazing on areas that have been determined
through the land use planning process to be available for grazing. BLM
determines whether lands are available for livestock grazing through
the land use planning process in compliance with FLPMA and 43 CFR part
1600. The process involves public participation, assessment,
decisionmaking, implementation, plan monitoring and evaluation, as well
as adjustments through plan maintenance, amendment, and revision. This
planning process adheres to the principles of multiple use and
sustained yield and uses an interdisciplinary approach to integrate
physical, biological, economic and other sciences. BLM is required to
take appropriate action if we determine that existing grazing
management practices or levels of grazing use are significant factors
in failing to achieve the standards and conform to the guidelines for
grazing administration. This final rule emphasizes the importance of
using monitoring data by adding a requirement for its use when
determining whether existing grazing management is a significant factor
in failing to achieve the standards and conform with the guidelines
under section 4180.2(c). In the final rule, we have clarified the
proposed rule by providing for the use of monitoring data if a
standards assessment indicates to the authorized officer that the
rangeland is failing to achieve standards or that management practices
do not conform to the guidelines. BLM endorses the use of exclosures to
determine the compared effects of grazing and its absence on various
ecological types of land, and discusses their use in several BLM and
interagency rangeland monitoring technical references.
Comments suggested that monitoring was so critical to determining
whether multiple use objectives are being met on grazing allotments
that it should be specifically required in all allotments, along with
other methodologies, in the regulations.
BLM agrees that monitoring is important in measuring progress
toward meeting objectives in grazing allotments and elsewhere on public
land. Allotment-level monitoring is generally a component of allotment
management plans, and is sometimes addressed in land use plans. Current
allotment management planning includes monitoring on the maximum
possible number of priority areas, limited only by budget and
workforce. We currently administer grazing on about 21,535 allotments
(2005). BLM has established monitoring sites in nearly 11,500
allotments, and currently collects monitoring data to some degree on
about 3,500 of those allotments each year. These monitoring sites are
used primarily to evaluate achievement of land use plan objectives, to
ascertain changes in condition, and to determine trend (toward or away
from a desired condition). Information is collected at some of the
monitoring sites more often than at others, depending on priority and
purpose. Specific methods of data collection are better addressed in
handbooks and technical references, which are much more readily
updated. However, it is not always necessary to monitor to find that
rangeland is achieving standards and that management practices conform
to the guidelines. Under the final rule, if a standards assessment
indicates that the rangeland is failing to achieve the standards or
that grazing management practices do not conform to the guidelines, we
will use monitoring data to support our determination regarding the
significant contributing factors for failing to achieve the standards
or to conform to the guidelines.
One comment stated that BLM should clearly show its long-term
budget strategy that outlines the monitoring programs, funding, and
personnel that will be added to the agency's capacity to carry out the
implied monitoring. The comment asserted that BLM does not have
sufficient funding, personnel, and management support for adequate
monitoring of vegetation, Special Status Species, and Birds of
Conservation Concern, let alone other resources.
Funding is provided by annual congressional appropriation. We will
prioritize allocation of our discretionary monitoring funding to
address resource needs and provide a foundation for management
adjustments. BLM agrees that generally, monitoring is a critical
component providing data for evaluation and adjustments of terms and
conditions of grazing authorizations, unless the need for the change in
authorization terms and conditions is immediate and obvious, such as
when conditions described at 43 CFR 4110.3-1(b) are encountered (e.g.,
wildfire burns available forage, necessitating temporary suspension of
grazing use). We will continue to prioritize funding to meet the
monitoring needs required by this rule. The change in the final rule
that limits the monitoring requirement to those cases where a standards
assessment indicates that the rangeland is failing to meet standards or
that management practices do not conform to the guidelines does not
result in a negative budgetary impact.
4. Enforcement
Some comments suggested that BLM should enforce all of its current
regulations or strengthen them to prevent environmental damage caused
by livestock grazing or coal bed methane development. Another comment
stated that BLM should allow permittees and lessees to ``manage''
recreation on public lands.
BLM agrees that it should enforce all of its public land
regulations and does so with the resources and authority provided to it
by Congress. We believe that the final grazing regulations provide
adequate authority for BLM to take action when necessary to arrest and
reverse environmental damage attributable to livestock grazing on
public lands. Regulations governing coal bed methane development are
found in 43 CFR part 3100 and are not addressed in this rule. BLM
cannot grant management authority for one user group, as such, to
``manage'' another user group. However, any qualified individual or
business entity may obtain a permit under BLM regulations to carry on
specific activities on public lands. For example, a rancher can obtain
a special recreation permit under 43 CFR part 2930 and operate as an
outfitter or guide. However, the rancher cannot obtain authority to bar
casual recreational use of the allotment he uses, as the comment seems
to suggest would be desirable.
H. Other Recommendations
Several comment letters offered additional recommendations for BLM
actions that were not specific to any particular regulatory section.
1. Advisory Councils and Grazing Advisory Boards
BLM received comments regarding advisory council membership and
function. A comment stated that we should re-establish Multiple Use
Advisory Councils (MUAC) to resolve local issues, contending that the
RACs that superceded MUACs and Grazing Advisory Boards in 1995 in many
cases cover too large an area to respond adequately to local issues.
Such MUACs reorganized on a District or Field Office basis, according
to the comment, could be a positive force for problem solving,
[[Page 39435]]
conflict resolution, and vetting land management issues far beyond
grazing management matters. Another comment suggested that RAC
membership be made up of 50 percent conservationists, 10 percent
community interests, and 30 percent independent biologists and not be
dominated by ranchers who represent their narrow special interest. One
comment stated that BLM should drop reference to RACs as public
oversight bodies because they are ineffective at arriving at a
decision.
The suggestion to re-establish MUACs is outside the scope of this
rule. To the extent there is concern that RACs cover too large an area
to address local issues adequately, the regulations pertaining to RACs
at 43 CFR subpart 1784 provide for the formation of RAC subgroups to
gather local level input on specific issues. If you believe a
particular issue should be addressed on a smaller subgroup scale by the
RAC with which you are associated, you, as a member of the public, may
suggest such an action to the RAC. The comment implies that RACs only
consider grazing management matters. However, the regulations at 43 CFR
subpart 1784 provide that RACs can address all facets of public land
management. Regarding RAC composition, regulations at section 1784.6-
1(c) and (d) require that the Secretary provide for balanced and broad
representation from commercial, environmental, scientific, and
aesthetic interests, as well as the public, Tribes, and state and local
governments. This balanced composition of the RAC comports with the
statutory requirements of Section 309 of FLPMA. We have not adopted
these suggestions in the final rule.
Some comments expressed disappointment that BLM chose not to
propose reestablishment of Grazing Advisory Boards as suggested during
the public scoping process on the ANPR and the notice of intent to
prepare an environmental impact statement. They further expressed
disappointment in the justification for not pursing regulations that
would allow board establishment that was presented in the DEIS section
2.4.
The RACs that were established following the 1995 grazing
regulation amendments have generally assumed the role played by the
Grazing Advisory Boards, whose authority ``sunset'' on December 31,
1985. RACs provide an evenly balanced advisory board to cooperate with
BLM, and are available to represent local interests on all facets of
public land management. The regulations governing board functions at 43
CFR subpart 1784 also provide for the formation of RAC subgroups to
gather local level input on specific issues. The suggestion to redefine
the role of RACs is outside the scope of this rulemaking. Moreover, we
disagree that they are ineffective as public oversight bodies. The RACs
represent a balance of views among various interests concerned with the
management and use of the public lands. Furthermore, the Councils are
advisory in nature and have given the public an effective forum for
participating in the management of the public lands, as well as giving
land managers direct public insight into proposed programs and
policies. BLM has included in this final rule a provision that BLM
cooperate with Tribal, state, county, or locally established grazing
boards when reviewing range improvement projects and allotment
management plans on public lands. We feel that these existing and
proposed provisions adequately address the need for a forum for
cooperation and coordination on both local and regional issues
affecting livestock grazing on public lands.
2. Wild Horses and Burros
One comment objected to the ``unfair treatment BLM has given to
wild horses, using them as scapegoats for the abuses of livestock and
plotting to eliminate them along with the vested interest livestock
community.''
BLM manages rangelands for multiple use and sustained yield, and
follows all laws and regulations governing the management of public
lands, including the Wild and Free Roaming Horse and Burro Act of 1971.
Management considerations for and analysis of impacts on wild horse and
burro populations are described in EIS chapters 3.12, 4.2.9, 4.3.9, and
4.4.9. BLM consults with the Wild Horse Advisory Board to coordinate an
efficient management program in accordance with statutory direction and
at a level commensurate with funding appropriated by Congress.
3. Reserve Common Allotments
We received several comments on the concept referred to as
``Reserve Common Allotments'' (RCA), which was discussed in the ANPR.
We decided not to pursue the possibility of creating RCAs in the
proposed rule following a generally unenthusiastic reception during the
public scoping process. Comments that opposed this concept speculated
that it would foster abuse and excessive grazing on the one hand, or
could lead to a loss of preference AUMs on public lands on the other.
Some comments supported designation of RCAs on a temporary basis only,
not permanent designation that would eliminate those AUMs from term
permit availability. Comments that supported the RCA concept expressed
disappointment that we did not propose them because they recognized the
RCA as a potential solution to environmental and economic challenges
confronting modern-day ranching. Another comment suggested that RCAs
could provide an outlet for producers whose allotments are unusable due
to weather, fire, or scheduled range improvements such as prescribed
burning or stream restoration. This comment also suggested implementing
the concept on a pilot basis and monitoring performance on a set of
administrative and ecological criteria.
BLM recognizes that these thoughtful comments demonstrate cautious
interest and qualified support of the RCA concept. It is also obvious
that the proposal rolled out in the ANPR was insufficiently defined and
inadequately developed to gain full public support. We will continue to
examine the concept of establishing temporary or permanent forage
reserves, or alternative management scenarios, through future
policymaking processes. Due to the keen interest in this subject, we
will communicate with the public during any policy development process
on RCAs.
4. Incentives for Good Stewardship
Some comments stated that rangeland conditions would improve if BLM
regulations established various incentives for ranchers who implement
good management practices, or allowed ``considerations'' for permittees
who voluntarily reduce livestock numbers or build wildlife projects, or
provided for purchasing willow whips from private landowners for
planting on public lands. One comment suggested adopting conservation
easement tax laws currently in effect in Colorado, New Mexico, and
other states.
In past decades, BLM, in consultation with user groups and the
public, has examined various programs (e.g. Incentive Based Grazing
Fees--1993; Cooperative Management Agreements--1984) intended to
provide incentive for rancher stewardship of public lands for multiple
uses, including wildlife habitat. Ultimately, consensus could not be
achieved and these efforts were set aside. More recently, in early
2003, BLM's Sustaining Working Landscapes (SWL) policy development
initiative explored possible incentives for ranchers to engage in
partnerships to achieve conservation ends, while encouraging and
enabling good stewardship. In mid-2003, BLM decided to focus its
grazing program resources
[[Page 39436]]
on this rulemaking effort, rather than attempt simultaneously to
accomplish SWL policy development and a rule. Upon completion of this
rule, BLM intends to revisit SWL policy concepts and focus on updating
grazing manuals and technical procedures needed to implement the
grazing rules.
While BLM supports the use of conservation easements for protection
of watershed and habitat values on private lands, we do not have
authority to change the tax laws of individual states.
5. Encouraging Flexible Management
One comment expressed concern that proposed changes in the
regulations would limit adaptive management options, and urged BLM to
increase opportunities for adaptive management for unforeseen
circumstances such as drought.
The proposed rule is designed to improve working relations with
permittees and lessees. Better working relationships should result in
more frequent communication and greater willingness to consider
additional management alternatives.
6. Determining Appropriate Technical Procedures
One comment stated that BLM should incorporate the scientific and
economic principles expressed in Catlin et al. (2003) and Stevens et
al. (2002) into its analysis and permit renewal processes, so that
appropriate changes are made to ensure that native diversity and
productivity are restored to grazed BLM lands. (The comment refers to
Catlin, James, Jaro Walker, Allison Jones, John Carter, and Joe Feller,
2003: Multiple use grazing management in the Grand Staircase National
Monument. A tool provided to the Monument range staff by the Southern
Utah Land Restoration Project and Stevens, Laurence E., Peter Stacey,
Don Duff, Chad Gourley, and James C. Catlin, 2002: Riparian ecosystem
evaluation: a review and test of BLM's proper functioning condition
assessment guidelines.)
Employment of the technical procedures and principles described by
these documents is appropriately addressed in policy, manuals, and
guidance rather than in a rule. When revising policy, manuals, and
other guidance, BLM reviews all available technical materials, and will
review the Catlin and Stevens articles before the next revision.
One comment stated that BLM policy should require that grazing
decisions always be based on appropriate scientific data because it is
required by the Data Quality Act.
Some comments maintained that BLM is required to prove, on
administrative appeal, that the terms and conditions of grazing permits
are consistent with the Data Quality Act (DQA), Section 515 of the
Treasury and General Government Appropriations Act for Fiscal Year 2001
(Pub. L. 106-554).
As discussed above, BLM is not required to launch an affirmative
defense of grazing permits in response to an administrative appeal to
OHA. BLM may come forward with a rebuttal, but the appellant bears the
ultimate burden of persuasion.
OHA may not be the forum of choice for raising questions with
respect to BLM's compliance with the DQA's standards (i.e., ``the
quality, objectivity, utility, and integrity of information''). As
required by the DQA, BLM has issued guidelines that provide an
administrative mechanism for raising such questions directly with BLM
(Bureau of Land Management Information Quality Guidelines, published
October 1, 2002).
Another comment stated that utilization studies sanctioned by BLM
should include methodology for determining which species consumed the
forage to ensure that measures taken to correct over-utilization are
effective.
Methodologies for utilization studies are better addressed in
reference manuals, guidance, and policy.
One comment stated that BLM should require data used to support
changes in grazing preference to be acceptable to the permittee or
lessee, as well as to the BLM authorized officer.
Congress entrusted the Secretary of the Interior with the
responsibility to manage the public lands. The Secretary, in turn, has
delegated this responsibility to BLM. We understand that permittees and
lessees are more likely to accept decisions and act cooperatively if
the data we use to support changes in grazing preference are acceptable
both to BLM and the affected permittees or lessees. However, if the
data BLM uses to support changes in grazing preference are not
acceptable to a permittee or lessee, BLM is still obligated to make its
management decision in light of its statutory management
responsibilities.
7. Access to Public Lands
One comment stated that BLM should require other users of the
public lands to get permission to be on public land from BLM, and that
BLM should inform the permittee when other users and/or BLM staff will
be out on the permittee's allotment.
Determining whether and under what circumstances public land users
other than livestock permittees need approval to use public lands is
outside the scope of this rule. Casual recreationists normally do not
need permits to visit public lands, so there is no way BLM can inform
grazers in advance of such visitation. Whenever feasible, in the spirit
of consultation, cooperation, and coordination, BLM will inform the
livestock operators in advance about BLM field operations or public
uses under permit, lease, or license that affect grazing management of
allotments where they have permits or leases. However, a provision
requiring advance notification would be impractical to implement and
detract from efficient management of the public lands. BLM declines to
adopt this suggestion.
One comment asserted that a rancher does not have to have a grazing
permit to access his vested rights, and that the rancher's ownership of
water rights, forage rights, and improvements are issues that are not
appealable, and cited several court decisions.
Under the TGA (sections 3 and 15), ranchers must hold a BLM permit
or lease in order to graze livestock on public lands. The current
regulations, as well as the proposed regulations, reiterate this
requirement, at 40 CFR subparts 4130 and 4140, which has been upheld by
decisions of Federal courts. See, e.g., Osborne v. United States, 145
F.2d 892, 896 (9th Cir. 1944) (livestock grazing on public lands is
``under the original tacit consent or*. * * under regulation through
the permit system * * * a privilege which is withdrawable at any time
for any use by the sovereign.'') Although the Court of Federal Claims
ruled in 2002 that a holder of ditch right-of-way established under the
Act of 1866 also has an appurtenant right for livestock to forage 50
feet on each side of the ditch, this matter is still in litigation and
no final decision has been rendered by the court. Hage v. United
States, 51 Fed. Cl. 570, 580-84 (2002).
8. Judicial Matters
A comment stated that BLM should add a provision to the grazing
regulations requiring BLM to notify permittees when BLM has received a
Notice of Intent to sue or has been sued under ESA, Clean Water ACT
(CWA) or other environmental law, when the outcome of the lawsuit may
affect the permittee's allotments or grazing privileges. This advance
notification would allow the permittee to take whatever action he deems
necessary to protect his interests.
Notification procedures for potential challenges under various
federal laws are more appropriately handled through policy rather than
regulation. This is
[[Page 39437]]
because as statutory or regulatory provisions change BLM may have to
undertake a regulatory change, which is time consuming. BLM does not
have rulemaking authority to implement CWA or ESA as to citizen-suit
provisions or notice of intent provisions. The CWA provides that notice
``shall be given in such manner as the Administrator [of the
Environmental Protection Agency] shall prescribe by regulation.'' 33
U.S.C. 1365(b). The FWS and NOAA Fisheries may promulgate regulations
for the enforcement of the ESA, by citizen suit and by other means. 16
U.S.C. 1540(f). BLM will defer to the rulemaking authorities of these
agencies. As a matter of policy and customer service, however, BLM
routinely informs grazing operators of such eventualities as lawsuits
that may affect their allotments.
9. Interagency Cooperation
One comment stated that BLM should collaborate with other agencies
like FWS, and another stated that state wildlife agencies should be
fully engaged, because BLM decisions can easily affect these other
agencies and their work, because BLM decisions can affect species of
concern, and because effective wildlife management requires
coordination with uses related to grazing management.
BLM routinely consults with FWS and NOAA Fisheries in accordance
with the requirements of the ESA and BLM Manual 6840 on Special Status
Species Management. This consultation ensures that actions requiring
authorization or approval by BLM are consistent with the conservation
needs of species of concern and do not exacerbate the need to list
additional species. As for state agencies, current regulations require
cooperation with them. This rule does not change this. Section 4120.5-2
states, ``The authorized officer shall, to the extent appropriate,
cooperate with Federal, State, Tribal and local governmental entities,
institutions, organizations, corporations, associations, and
individuals.'' Many specific provisions also call for cooperation and
consideration with the staff having lands or managing resources in the
area affected by proposed BLM grazing management decisions.
For more commentary regarding interagency cooperation, see the
discussion of section 4120.5-2, Cooperation with Tribal, state, county,
and Federal agencies, in Part V of this preamble.
V. Section-by-Section Analysis and Response to Comments
In the following paragraphs of the preamble, we discuss briefly the
sections of the regulations that appeared in the proposed rule, how the
proposed rule changed each section, whether and how we further amended
each section in the final rule, the comments we received addressing
each section, and how we respond to those comments.
Subpart 4100--Grazing Administration--Exclusive of Alaska; General
Section 4100.0-2 Objectives
In the proposed rule we made technical and editorial corrections to
this section to remove reference to regulatory provisions that no
longer exist and to acknowledge that the Public Rangelands Improvement
Act (PRIA) contributes to the objectives of the regulations. Several
comments urged BLM to adopt section 4100.0-2 as proposed.
One comment addressed this section, stating that BLM should remove
the statement ``to accelerate restoration and improvement of public
rangelands to properly functioning conditions' and change the words
``consistent with'' to ``that is in conformance with,'' for several
reasons. First, removal of this objective would ensure that the public
is not distracted from the real objectives of grazing management, which
are expressed in the applicable land use plans. These plans may or may
not require the ``restoration and improvement of public rangelands to
properly functioning conditions' upon every acre of the public lands.
Second, removal of the objective would make it clear that the
applicable land use plan and relevant laws guide management.
We have not amended the objectives section in response to this
comment. ``[T]o accelerate restoration and improvement of public
rangelands to properly functioning conditions'' is a proper objective
for these regulations, and consistent with Section 2 of the TGA (``The
Secretary * * * shall make provision for the protection * * * and
improvement of * * ) grazing districts and do any and all things
necessary to insure the objects of such grazing districts, [including]
* * * to preserve the land and its resources from destruction or
unnecessary injury [and] to provide for*. * * improvement of the range;
and the Secretary * * * is authorized to * * * perform such work as may
be necessary amply to protect and rehabilitate the areas subject to the
provisions of this Act * * *''). To ensure clarity regarding the role
of land use plans and grazing management, section 4100.0-8 of the
regulations, which is not changed by this final rule, continues to
state unequivocally that ``* * * [l]ivestock grazing activities and
management actions approved by the authorized officer shall be in
conformance with the land use plan as defined at 43 CFR 1601.0-5(b).''
Rangeland Standards and Guidelines (43 CFR part 4180) have been or
are required to be developed statewide and/or regionally in
consultation with RACs. Once standards and guidelines were developed
for a particular area, BLM reviewed the relevant land use plans to
ensure that their provisions were consistent with achieving standards
and conforming with guidelines. In some cases, it was necessary to
amend land use plans to make their provisions consistent with achieving
standards and conforming with guidelines. Restoration and improvement
of rangelands to properly functioning conditions are objectives of the
grazing regulations and are implemented in a manner that conforms with
applicable land use plan decisions.
BLM planning regulations define ``conformity'' or ``conformance''
as meaning that a resource management action is specifically provided
for in the land use plan or, if not specifically mentioned, clearly
consistent with the terms, conditions, and decisions of the plan (43
CFR 1610.0-5(b)). The planning regulations define ``consistent'' as
meaning that plans will adhere to the terms, conditions, and decisions
of resource related plans, or in their absence with policies and
programs (43 CFR 1610.0-5(c)). We cannot anticipate in land use plans
the specific circumstances involved in subsequent grazing decisions.
Therefore, the specific term chosen for use in this rule, either
``conformance'' or ``consistent,'' would not alter the intent of the
objective described in this rule. Finally, all individual records of
decision issued when BLM adopted land health standards pursuant to
section 4180.2 amended applicable land use plans to include those land
health standards.
Section 4100.0-3 Authority
The proposed rule made 3 editorial corrections in this section. One
comment stated that the proposed rule lacked reference to, and
consideration of, 43 U.S.C. 315a and 1732(b), and 48 Stat. 1269, on
management of use, occupancy, and development of public lands. These
provisions are included in this section, either expressly or
implicitly. We make no changes in this section of the final rule.
[[Page 39438]]
Section 4100.0-5 Definitions--``Active Use''
We amended the definition of ``active use'' to make it clear that
the term refers to a forage amount based on the carrying capacity of,
and resource conditions in, an allotment.
``Active use'': In this definition, we have substituted the word
``livestock'' for ``rangeland'' in the reference to carrying capacity.
The change makes the definition consistent with all other references to
``carrying capacity'' in the rule.
BLM received several comments that suggested alternative
definitions for the term ``active use.'' Some comments suggested that
active use should be based on ``forage available on a sustained yield
basis.'' The comments also suggested that we define the term ``forage
available on a sustained yield basis.'' Other comments suggested that
the definition of active use should include reference to monitoring
data and documented resource conditions in an allotment. One comment
suggested that ``active use'' should include both ``authorized use''
and ``nonuse.''
We have made no change to the definition of ``active use'' in the
final rule in response to these comments. In the final rule the term
``active use'' is the amount of forage that is available for grazing
use under a permit or lease. Active use is based upon resource
conditions within an allotment. When permittees or lessees apply not to
use all or a portion of their active use in any particular year, they
are applying for ``nonuse.'' If BLM finds it necessary to reduce the
level of grazing use permitted either temporarily or indefinitely, we
will suspend ``active use.'' At that point, active use is reduced and
suspended use is created or increased, either temporarily or
indefinitely. ``Active use'' is a grazing-program-specific
administrative term and does not include all forage available on a
sustained yield basis within an allotment, because other forage, or
potential forage, within the allotment is allocated under the auspices
of the applicable land use plan to watershed protection, plant
maintenance and reproduction, to wildlife habitat and, where wild
horses or burros are present, to forage for those animals.
Section 4100.0-5 Definitions--``Conservation Use''
We removed the definition of the term ``conservation use,'' and
removed the term itself everywhere it appears in the existing
regulations, in keeping with the 10th Circuit Court decision discussed
earlier in this preamble.
Several comments opposed removing the concept of conservation use
permits from the regulations. One comment expressed the need for a
mechanism to rest rangelands for extended periods of time when
necessary to recover plant composition and forage production or protect
important habitats. Others stated that the regulations should not make
it difficult or a lower priority for a conservation group to buy
grazing permits. They pointed out that if BLM collects its fees from a
conservation group, from a revenue perspective it makes no difference
if the conservation group decides not to graze livestock, and that such
non-grazing would have minimal impact on western economies. The comment
also said that such groups are often able to pay willing sellers higher
prices for permits, and that such transactions result in healthier
rangelands. Another comment said that BLM should convene a forum of
permittees, conservationists, and agency representatives to explore
regulatory options for facilitating ``willing seller--willing buyer''
grazing permit retirement. One comment acknowledged that changes in
allotment use for conservation purposes is no longer permitted, because
conservation use was set aside in the 10th Circuit Court of Appeals
decision in Public Lands Council v. Babbitt, but encouraged BLM to
continue to work within applicable laws and regulations to allocate
rangeland uses that achieve multiple-use goals, such as providing
important wildlife habitat and contributing to water quality and soil
retention, while providing compensation to the public commensurate with
what other range users provide.
The amendment in the final rule of the temporary nonuse section of
the regulations removes the 3-year limit on nonuse by a grazing
permittee. This proposed rule will achieve the goals set forth in this
comment. BLM is able to designate areas as not available for grazing by
decision, based upon the land use plan's multiple use objectives, or to
withdraw areas from grazing under Section 204 of FLPMA. BLM can also
make changes in grazing management such as adjusting, reducing, or
eliminating grazing use based on a determination that existing
livestock grazing management or levels of use are a significant factor
in not achieving or making progress toward achieving land health
standards.
One comment that supported removal of reference to ``conservation
use permits'' stated that not grazing can result in fuel build-up and
catastrophic fires.
The removal of the term ``conservation use'' from the regulations
is required by Federal court decision (Public Lands Council v. Babbitt,
supra). The final rule provides adequate options to achieve the
purposes expressed in the comment supporting the need for a rest
mechanism. Section 4130.4 provides the authorized officer the ability
to authorize nonuse as needed to provide for resource conservation,
enhancement, or protection. Even though the nonuse will be reviewed and
approved on an annual basis, the rule provides the mechanism to
accommodate nonuse for the time needed to achieve plant composition,
forage production, or habitat improvement objectives.
Regional RACs may be one forum for permittees and/or
conservationists to discuss options for grazing permit retirement.
However, creating and administering ``willing seller--willing buyer''
grazing permit retirement opportunities is beyond the scope of the
rule. At regional RAC meetings, it may be appropriate to discuss
conservation buy-outs, but, as noted earlier, BLM does not have
authority at the present time to ``buy out'' permits.
Many comments urged BLM to provide means and methods for reducing
or eliminating grazing in specific areas, such as by appealing and
challenging the court's ruling against conservation use permits or
allowing conservation buy-outs as a provision of the regulations,
giving a number of reasons:
a. Some areas require long-term or permanent protection for
rangeland environmental health.
b. The proposed rule will not promote sustainable grazing.
c. The elimination of conservation use also eliminates the
opportunity for a conservation easement.
d. Such arrangements can have substantial economic and other
benefits for all concerned.
e. Most people consider conservation to be a legitimate use of the
land.
BLM is able to designate areas as not available for grazing by
decision based upon the land use plan's multiple use objectives, or to
withdraw areas from grazing under Section 204 of FLPMA. The Bureau is
also able to make changes in grazing management, such as reducing or
eliminating grazing use, based upon a determination that livestock
grazing is a factor in not meeting the standards for rangeland health.
One comment stated that BLM and Congress should consider amending
the TGA to allow for conservation use, because that might be the only
legal way
[[Page 39439]]
to protect resources from livestock grazing.
Amending laws, such as the TGA, FLPMA, and PRIA, is not within the
scope of the proposed rule or the authority of BLM.
Section 4100.0-5 Definitions--``District''
We have amended the definition for the term ``District'' to update
the regulations as to the organization of BLM field offices. The term
is not to be confused with ``grazing district.'' The latter term either
is used in its full form--``grazing district''--or appears in context
so that its meaning is clear.
Section 4100.0-5 Definitions--``Ephemeral Rangelands''
We have revised the definition for this term as well, as suggested
in comments. This definition was not in the proposed rule, but the
change suggested in the comments was more of a clarification than a
change, removing the notion that production of sufficient forage by
ephemeral range was necessarily unusual. Therefore, we removed the
phrase ``may briefly produce unusual volumes of forage'' and added in
its place the phrase ``from time to time produce sufficient forage.''
Section 4100.0-5 Definitions--``Grazing Lease/Grazing Permit''
We amended the definitions of ``grazing lease'' and ``grazing
permit'' for purposes of clarification, to make it clear that BLM
issues grazing leases to authorize grazing on lands that are not within
grazing districts established under the TGA, and permits to authorize
grazing within grazing districts.
One comment from a state game and fish agency stated that we should
not amend the definitions of ``grazing lease'' and ``grazing permit,''
because inclusion of preference in the text of a grazing lease leads to
the lease establishing the stocking rate. The comment contended that a
grazing lease is not the appropriate vehicle for establishing a
stocking baseline.
We have not adopted this recommendation. Changes in the definitions
are required in order to remove conservation use from the regulations,
based on the 1999 Tenth Circuit Court of Appeals decision. Grazing
preference, as well as other allowable uses on all BLM lands, is
established in land use plans. Grazing permits and leases are the
instruments that authorize grazing use, based on land use planning
allocations. Under section 4110.3, BLM will periodically review the
grazing preference specified in a grazing permit or lease, and make
changes in the grazing preference as needed to help achieve management
objectives and to attain rangeland health.
Comments stated that the definitions should not provide that the
grazing permit or lease is the document that authorizes grazing on
public lands, because this unnecessarily triggers the need to document
NEPA compliance.
The TGA directs BLM to authorize livestock grazing through a permit
or lease. NEPA provides requirements for Federal actions including the
issuance of grazing permits and leases. BLM must comply with provisions
of both laws.
Comments urged BLM to amend the definition of a grazing permit to
require that landowners be engaged in the livestock business in order
to acquire a Federal grazing permit. They stated that this requirement
is based on a provision of the TGA.
The TGA does not require a permit or lease holder to be in the
livestock business. Section 3 of the Act states, ``Preference shall be
given in the issuance of grazing permits to those within or near a
district who are landowners engaged in the livestock business.''
Therefore, being in the livestock business is not a requirement, only a
point of priority for receipt of a forage allocation.
Other comments cited legislation pending in Congress that would
allow the voluntary buyout of grazing permits, and stated that the
proposed definition of ``grazing permit'' would complicate the
potential for such voluntary buyouts.
BLM has not changed the final rule in response to this comment.
Pending legislation is not authority for regulation. If the legislation
were to pass both houses of Congress and be signed by the President,
BLM would, if necessary, amend the regulations to implement the new
legislation.
Section 4100.0-5 Definitions--``Interested Public''
Under the definition of ``interested public'' in the 1995
regulations, an individual, group, or organization could obtain
interested public status by (1) submitting a written request for
involvement in the decisionmaking process associated with specific
allotments, or (2) by submitting written comments during a formal
public comment period associated with a decision within a specific
allotment.
In the proposed rule, we revised the definition of ``interested
public'' to refer to an entity that has done one of two things: (1)
Submitted a written request to BLM to be provided an opportunity to be
involved in the process leading to a BLM decision on the management of
livestock grazing on public lands, and followed up that request by
commenting on or otherwise participating in the decisionmaking process
as to the management of a specific allotment if there has been an
opportunity for such participation, or (2) submitted written comments
to the authorized officer regarding the management of livestock grazing
on a specific allotment. Thus, a person, group, or organization still
would qualify as a member of the interested public simply by commenting
on grazing management in a specific allotment during an announced
public comment period.
In the final rule, we have further amended the definition to
require a written request to cover individual allotments. Under current
wording, a potential interested public could write one letter
requesting interested public status as to all ``public lands.'' Each of
BLM's 162 field offices would then be obligated to send this entity
information, for purposes of local consultation/commenting
opportunities, and then ``weed out'' the interested public from their
local lists if the potential interested public does not specifically
respond or take advantage of the consultation opportunity. Keeping the
definition's focus on management of a specific allotment will keep the
process more orderly and efficient.
Use of the term ``grazing management'' when speaking of allotments
is redundant, given the definition of ``allotment'' elsewhere in the
regulations. Therefore, there is no need to include it in the
``interested public'' definition--since the ``interested public''
definition uses the term ``allotment.''
We received many comments regarding this definition. Many of the
comments on the topic were concerned that this change could unduly
exclude public input from the grazing management decision process. Some
comments stated that this change could lead to secretive decision
making by BLM. Others stated that the new qualification criteria posed
an unreasonable barrier to participation. Contrarily, a significant
number of comments stated that more requirements should be imposed to
avoid what they saw as unnecessary delays and frivolous protests and
administrative appeals. Suggestions for additional requirements
included an annual application process or other time limit on
interested public status. Creating a substantive standard for the
participation requirement was also
[[Page 39440]]
suggested. Some comments suggested that the interested public be
narrowed to include only grazing lessees and permittees and local users
of the land. Finally, a significant number of comments supported the
changes as proposed.
BLM seeks to balance the legitimate need for public involvement in
the management of public lands with the public interest in the cost-
effective administration of the public participation process. Since the
definition of interested public was last changed in 1995, BLM has
devoted substantial resources to the public participation process. Some
of these resources have been devoted to tasks such as maintaining lists
that include individuals and groups that have not participated in
allotment management activities in years. These uninvolved members of
``interested public'' still receive periodic mailings at taxpayer
expense.
BLM recognizes the importance of public participation and desires
to provide an opportunity for all those who demonstrate an ongoing
interest in an allotment to participate. Requiring some follow-up
activity is not unreasonable, but allows the individual or group to
demonstrate true continuing interest in the activities on the
allotment. BLM has not adopted any further qualification requirements,
in order to maintain an open process available to all of the public.
Annual applications or minimum criteria standards would create
additional paperwork requirements, and could run counter to the
administrative efficiency goal. Also note that the change to the
interested public definition does not in any way affect the public
notice and public participation opportunities available when potential
grazing decisions are analyzed under NEPA.
One comment stated that, to enhance BLM's working relationship with
the permittee and to bring cohesive management into the decisionmaking
process, monitoring should be conducted only by the permittee and BLM,
omitting the interested public.
Section 202(f) of FLPMA makes clear that it is the direction of
Congress that BLM must allow for public involvement and allow the
public to comment upon and participate in the formulation of plans and
programs relating to the management of public lands. An important
element of our plans is the establishment of resource management
objectives, which then must be monitored. The grazing regulations do
not address who should or should not be involved in monitoring. It is
BLM's policy to encourage partnerships with appropriate interests to
accomplish our work. When the interested public joins in conducting
monitoring studies with BLM, they bring their perspective to the
management of resources, which often is different from the perspective
of BLM or the permittee. BLM benefits from this perspective by
receiving more diverse information upon which to base its decisions.
BLM retains discretion to reject monitoring information that does not
meet agency standards, regardless of who collects it.
One comment stated that removing some requirements to consult with
the ``interested public'' while adopting a requirement to cooperate
with state, county, or locally-established grazing advisory boards
provides preferential treatment to one group over another. The comment
questioned whether this change ensures ``a consistent community-based
decision-making process.''
The final rule retains requirements for consultation, cooperation,
and coordination with the interested public for:
Apportioning additional forage on BLM-managed lands;
Developing or modifying an allotment management plan or
grazing activity plan; and
Planning range development or improvement programs. For
example, the final rule provides for continued participation by the
interested public at the same level as the state, county, or locally-
established grazing advisory boards. The rule also retains requirements
to
Allow the interested public to review and comment on
grazing management evaluation reports; and
Notify the interested public of proposed and final grazing
decisions.
The final rule provides the interested public with ample
opportunities to participate and provide input to BLM on its management
of public lands, even though the rule limits the interested public's
role in day-to-day operational aspects of the grazing program. BLM's
experience under the existing regulations is that this form of public
participation is often inefficient and unproductive. The final rule
allows the authorized officer discretion to determine appropriate on-
the-ground management actions to achieve plan objectives and respond to
various resource conditions.
Two related comments questioned BLM's proposal to restrict
interested public participation to plan-level or program-level
decisions. The comments stated that information and decisions presented
at this level are often too broad and general to allow specific and
meaningful evaluations or comments, and site-specific actions have the
greatest potential to impact fish and wildlife, including species
listed under the Endangered Species Act. The comment asserted that it
is therefore important to retain public consultation requirements for
site-specific resource decisions.
An important element of BLM land use planning is the establishment
of resource management objectives. These are designed to prompt
managers to achieve standards and implement guidelines under pertinent
state and Federal laws in order to improve the condition of the land
resource. Most if not all of the site-specific actions that would
affect fish and wildlife are included in the development or
modification of an allotment management plan and the planning of range
improvements. Both allotment management and range improvement planning
continue to require consultation, cooperation, and coordination with
the interested public under the final rule. BLM is seeking to balance
the need for public involvement in the management of public lands with
the public interest in the cost-effective management of those lands.
Still another comment expressed concern that members of the public
(other than the grazing permittee) should be given the opportunity to
submit comments regarding a grazing permit environmental assessment
(EA). The comment stated that, because grazing management affects many
resources on which fish and wildlife depend, it would be valuable to
allow predecisional comments from all interested parties to be
introduced into the public record. The comment stated that the
opportunity for review under NEPA may not allow for timely and site-
specific public input. The comment stated that efforts to simplify and
streamline the NEPA process could result in the agencies and the public
being informed only about those projects that warrant an EIS, when most
proposals for changes in rangeland management are evaluated in EAs.
The final rule does not change relevant requirements pertaining to
public involvement in the NEPA process. While BLM has proposed CXs that
would pertain to grazing decisions (71 FR 4159, January 25, 2006), at
present BLM consults with the public and provides notice regarding NEPA
activities to the public, pursuant to CEQ's regulations at 40 CFR
1501.4(b) and 40 CFR 1506.6(b). Grazing EAs are made available for
public review if the manager responsible for authorizing the action
believes it necessary. Public
[[Page 39441]]
participation might also occur as part of determining the scope of the
assessment.
Under the final rule, the interested public will still be provided
a copy of the proposed decision and associated NEPA documents or
notified of the availability of the NEPA document, may protest proposed
decisions under section 4160.2, and may seek appeal of a final decision
under section 4160.4.
Also, section 4130.3-3(b) provides the interested public
opportunity to review and provide input to reports that lead to
decisions to modify grazing use.
There are several opportunities for public involvement in the
process of issuing grazing permits. The interested public may comment
on or otherwise provide input in the development of reports leading to
adjustments in terms and conditions, the development of allotment
management plans (section 4120.2(a), (c), and (e)), which include terms
and conditions that would be incorporated in the grazing permit, and in
the permit decision process. At the authorized officer's discretion,
the interested public may be, but is not required to be, consulted in
the development of the terms and conditions of the permit.) BLM also
consults Resource Advisory Councils during the preparation of Resource
Management Plans (land use plans) and allotment management plans,
providing the public an additional opportunity and means for
participating in the land use planning process.
Another comment proposed that public input be sought when there
would be a significant change of land use. The comment stated that this
may provide for useful public input information for making management
decisions, but limit the opportunity for obstruction due to individual
entity or public agendas.
The comment seems to advocate a ``significance'' threshold for
public participation. BLM declines to adopt such a threshold. BLM
removed the requirement (but not the option) to consult with the
interested public on actions that involve what BLM considers to be the
day-to-day operational aspects of the grazing program, while preserving
the requirement to consult with the interested public in apportioning
additional forage, developing or modifying a grazing activity plan or
range improvement plan, and preparing reports evaluating range
conditions. These are actions for which public input would be of the
greatest value in deciding management direction for the public land.
This final rule does not affect the public's ability to participate
when BLM formulates plans and programs for land use.
One comment suggested that, in the definition of ``interested
public,'' we should specifically identify that a ``lienholder of
record'' is an entity that may be considered an interested public.
We have not adopted this suggestion. A lienholder of record would
be an individual, a group, or an organization, and there is no need to
mention them specifically in the definition.
Section 4100.0-5 Definitions--``Grazing Preference; Permitted Use''
We revised the definition of ``grazing preference'' to add the
quantitative meaning of the term as it was used in the 1978
regulations, as opposed to the 1995 rule, which defined it in terms of
priority of use as against other grazers. Under the final rule,
preference is the sum of active and suspended use. Related to this
change, we removed the definition of ``permitted use,'' and substituted
``preference'' or ``grazing preference,'' as appropriate, for
``permitted use'' in the regulations.
BLM received some comments supporting and some comments opposing
the removal of the term ``permitted use'' and expanding the definition
of ``grazing preference'' to include a livestock forage allocation.
Favorable comments suggested that the term connects a public land
livestock forage allocation with base property owned by the preference
holder, thus facilitating preference transfer when the property changes
hands, thereby providing stability and certainty for grazing operations
as well as ranching communities, and eliminating the confusion that use
of the term ``permitted use'' generated. Some of the comments in
support of the change erroneously suggested that preference was somehow
a fixed quantity, not subject to change.
Comments opposing the change stated that the definition of
preference has no basis in law, that it weakens BLM's administrative
authority, that it will cause confusion unless further clarified, and
that it would create expectations that BLM, when choosing among
possible public land management actions, would be obligated to minimize
livestock forage reductions, ensure they are temporary, and restore
historical livestock forage allocations. Other comments opposing the
change stated that, since allotments are quantified in terms of acres,
further quantification in terms of forage is both unnecessary and
unrealistic because the amount of forage produced on a given area is
not a fixed quantity. Another comment suggested that the proposed
definition of preference should not be adopted because it elevated a
livestock forage allocation as first priority above other valid uses of
vegetation, such as wildlife habitat and watershed protection. Some
comments stated that the present definitions of preference and
permitted use were consistent with the TGA. One comment stated that it
was inappropriate to change the definition of ``grazing preference'' to
include an amount of forage on public lands attached to a rancher's
base property without considering other factors, such as species
composition and diversity, vegetation structure and maturity, rare or
ephemeral species, and soil condition. The comment stated that these
factors do not necessarily relate either to livestock forage quantity
or to base property attributes, and that using these factors in the
definition of ``grazing preference'' gives the operator an
inappropriate expectation of what is available for his or her use. The
comment suggested that BLM consider other factors in defining ``grazing
preference.''
The final rule's modification of the definition of preference and
the removal of the term ``permitted use'' will remove administrative
inconsistencies from the regulations and provide for improved BLM
administration of forage allocations on public lands. The amendment
will alleviate confusion in the regulated community that has existed
since 1995. The definition of ``preference'' in the rule supports the
requirement that livestock forage allocations on public land be made
within a multiple use context in accordance with land use plans under
section 4110.2-2. When BLM determines that additional forage is
available for livestock within a planning area, under this definition
the preference holder is ``first in line'' for that portion of the
available forage that occurs within his/her allotment(s). The
definition does not mean and should not be construed to imply that
satisfying a permittee's or lessee's livestock forage allocation (the
preference) has the highest priority when BLM employs land use planning
or activity planning processes to determine possible uses, or values to
be managed for, that depend upon available vegetation. BLM reconciles
competing demands for public land resources through its land use
planning process.
One comment suggested that the term ``preference'' should be
redefined to mean the current livestock carrying capacity following
forage allocations to wildlife, watershed protection, and land
recovery. Another comment suggested that the definition of preference
should
[[Page 39442]]
incorporate the concepts of distance from water and the percent slope
or steepness of terrain. Another comment suggested that BLM should
include in the definition of ``grazing preference'' the concept that
forage is allocated according to land use plans, to emphasize the
connection between permitted activities and the land use plan.
The final rule includes the definition of ``grazing preference'' or
``preference'' as proposed. As explained in the preamble to the
proposed rule, the 1995 rules changes introduced some inconsistencies
into the regulations (see the discussion in section III.D.9. of this
preamble) by creating the term ``permitted use'' to mean the forage
allocation, and narrowing the definition of ``preference'' to mean only
a priority position as against other applicants for forage.
``Preference'' or ``grazing preference'' is a grazing-program-
specific administrative term that connects an individual entity's
allocation of public land forage to property that it owns or controls.
It allows BLM to record, in accordance with other applicable grazing
regulations, a forage allocation on public lands, expressed in terms of
``active use'' and use that has been suspended, or ``suspended use,''
together constituting ``preference,'' and administratively connect it
to privately owned base property. It facilitates both the transfer of
preference from one party to another and/or from one property to
another, and the making of equitable adjustments of preference in
``common allotments'' (allotments permitted or leased to more than one
operator), when needed in the course of land management.
In the 1978 grazing regulations, BLM formally defined ``grazing
preference'' to be a forage allocation on public lands, expressed in
AUMs, that is apportioned and attached to base property owned or
controlled by a permittee or lessee. These regulations also stated that
``grazing preference shall be allocated to qualified applicants
following the allocation of the vegetation resources among livestock
grazing, wild free-roaming horses and burros, wildlife, and other uses
in the land use plans.'' Before 1978, BLM called livestock forage
allocations on public lands ``grazing privileges.'' The amount of
privileges awarded to individuals and attached to their base property
was limited by the ``qualifications'' of the property. Determination of
land base property qualifications was based in part upon the forage
that was produced on the base property, and was used to help calculate
BLM's determination of the property owner's forage allocation on public
lands. Determination of water base property qualifications relied upon
the forage production that occurred on public lands within the service
area of the water that the water base property owner controlled.
Adjudication of grazing privileges occurred independently from, and in
many cases pre-dated, pre-FLPMA land use planning processes. Grazing
privileges on public lands that were awarded in recognition of base
property qualifications were informally referred to by ranchers and BLM
alike as ``preference AUM's,'' and were distinguished from forage use
approved on a temporary and nonrenewable basis and from forage consumed
in the exercise of livestock crossing permits.
Following the 1978 rulemaking that formally defined the term
``grazing preference,'' establishment of preference was based on forage
allocations that occurred in the course of implementing land use plans
under FLPMA. In the majority of cases, these forage allocations
mirrored the apportionment of forage that occurred under pre-FLPMA
livestock grazing adjudications. In any event, all allocations were
supported by resource information, including inventory and monitoring.
Allocations that pre-dated FLPMA, and the preference that arose from
those allocations in the course of implementing land use plans under
FLPMA, do not ``trump'' BLM's multiple use mandate, which was
formalized under FLPMA. On the contrary, forage allocations made under
the auspices of FLPMA land use plans superseded the forage allocations
made by the pre-FLPMA adjudications. All BLM offices with a grazing
program are covered by land use plans completed since the enactment of
FLPMA.
As discussed below, increasing active preference or activating
suspended preference is a valid grazing program goal. However, when
considering management opportunities presented by an increase in
vegetation available for forage or other uses and values, meeting this
goal must be considered in concert with meeting other equally valid
goals established by the land use plan.
BLM is aware that an absolute quantity of forage production on
public lands is not fixed in time. In accordance with the TGA and
FLPMA, the grazing regulations provide for monitoring and assessment to
support both temporary and long-term adjustments in grazing use,
including the amount of forage that may be removed under a permit or
lease, when BLM determines that such adjustments are warranted. It has
been BLM policy for two decades that changes in the amount of forage
allowed for grazing use under a term permit or lease (regardless of
whether it is called ``active use'' or ``active preference'') must be
supported by monitoring, or, since 1995, other resource information
that indicates a need for adjustment, such as when the authorized
livestock grazing significantly contributes to not meeting rangeland
health standards (and excepting, of course, adjustments that are based
on significant changes in management circumstances, such as land
disposals rendering less land available for grazing use). However,
although livestock grazing capacity can and does fluctuate in response
both to natural events and to management inputs, BLM also seeks to
provide reasonable stability to permittees and lessees who rely on
public land forage authorized by their permit or lease. Therefore, BLM
established a preference for removal of a specific amount of forage.
There is no need to include a requirement for consideration of physical
factors such as distance from water and steepness of terrain in the
definition of preference. The appropriate place for including this type
of guidance is in technical references and handbooks that address how
to establish livestock grazing capacity. As indicated in the final rule
at section 4110.3, BLM may adjust preference for several reasons,
including the need to conform the livestock grazing use program to the
provisions of applicable land use plans. BLM may also cancel preference
outright when circumstances warrant, such as to impose a penalty for
regulatory violations, or when public land is transferred to private
hands or devoted to another public purpose that precludes livestock
grazing.
The regulatory provisions to place preference in ``suspension''
indefinitely apply when BLM adjusts allowable livestock forage removal
based on a determination that grazing use or patterns of use are not
consistent with the provisions of subpart 4180, or grazing is causing
unacceptable utilization, or when use exceeds the livestock carrying
capacity as determined through monitoring, ecological site inventory,
or other acceptable methods, or for other purposes consistent with
legal and regulatory requirements. The assumption behind indefinitely
suspending preference is that, should management inputs result in
restoring acceptable patterns or levels of utilization, or increased
production of forage available to livestock, then BLM may reinstate the
suspended use under section 4110.3-1(b). BLM believes it
[[Page 39443]]
appropriate to encourage management input by ranchers who hold
preference by providing that when management inputs result in increased
forage for livestock available on a sustained yield basis, they can
expect that this forage will be made available to them without having
to compete for it with other potential applicants. We view the
reinstatement of suspended preference as an appropriate livestock
grazing program goal that provides incentive to preference holders for
improved livestock grazing management. Attaching the suspended
preference to base property results in a record that transcends any one
entity's or individual's tenure of ownership or control of that base
property. In the event, perhaps decades later, that BLM determines that
increased forage for livestock is available within a specified area,
this record allows BLM to make fair and appropriate distribution of the
increased livestock forage first to those with preference for grazing
use in the area in question.
To conclude, the definition of grazing preference contained in the
final rule is consistent with its longstanding meaning--a meaning that
was in formal usage for 17 years before it was changed by the 1995
grazing regulations, and consistent with how the term ``preference
AUM's'' was informally used before 1978.
Section 4100.0-5 Definitions--Suspension
We amended the definition of ``suspension'' to remove the qualifier
``temporary,'' which is redundant.
Several comments stated that the definition of ``suspension'' could
cause problems because it allows for withholding of active use ``by
agreement.'' These comments urged that we remove the phrase ``or by
agreement'' from the definition, so that the definition would read:
``Suspension means the withholding from active use, through a decision
issued by the authorized officer, of part or all of the grazing
preference specified in a grazing permit or lease.'' They stated that
allowing suspensions by agreement could allow the creation of de facto
conservation use permits, contrary to the decision of the Federal
Court, and would short circuit the grazing decision process under
subpart 4160.
We have not adopted the recommendation to change the definition of
``suspension'' in the proposed regulation. The phrase ``or by
agreement'' was in the definition prior to the 1995 revision of the
regulations. It is in the definition partly to recognize that the
permittee may not wish to contest the suspension. The definition also
supports our goal of using cooperation with permittees and lessees to
achieve rangeland management objectives. When an action that meets the
objective of achieving rangeland management objectives is implemented
through agreement with affected permittees or lessees, the action
carries no less weight than when it is implemented through decision.
The implementation of an action to place active use in suspension, for
example, still requires sound rationale, whether implemented through
agreement or decision, and may be appealed by parties with standing to
appeal.
Another comment stated that BLM should implement a process to
ensure that suspended use is reinstated to active use. It stated that
the current regulations deprive permittees of this credit,
unjustifiably eliminating base property qualifications that are kept on
the books in suspended status at the time of permit renewal based on an
allotment evaluation. The comment went on to suggest that, as range
conditions improve, BLM should reinstate the active use that is
presently in suspended use.
BLM agrees that it is important to keep track of grazing use that
has been reduced, and the final rule provides at section 4110.3-2(b)
that BLM will place such reductions in suspension. If range conditions
improve in the future and BLM finds there is additional forage for
livestock on a sustained yield basis, under the final rule at section
4110.3-1(b), such additional forage will be applied first to reduce or
eliminate any suspensions. There is no need to change the final rule in
response to this comment.
Some comments stated that BLM should not change the definition of
suspended use, but rather retain the one in the 1995 regulations. BLM
has not adopted the recommendation to retain the 1995 definition of
``suspension.'' The proposed and final rules change the definition to
be consistent with the restored definition of ``preference.''
Section 4100.0-5 Definitions--``Temporary Nonuse''
We amended the definition of ``temporary nonuse'' to mean that
portion of active use that BLM allows a permittee or lessee not to use.
Several comments expressed general support for the changes in the
temporary nonuse provisions. Various other comments suggested
amendments for the definition of ``temporary nonuse:'
(1) To include nonuse that is required by BLM in response to fire,
drought, or in other cases where range restoration or improvement is
necessary;
(2) To provide that BLM will manage decreases in livestock numbers
by temporary nonuse rather than suspension; and
(3) To require permittees and lessees to apply for temporary nonuse
on an annual basis, in order to make the definition consistent with
section 4130.4(d)(1).
The first two suggestions are related. Some grazing permittees and
lessees do not want to have authorizations suspended for drought, fire,
and range restoration. Although no reason is given in the comments,
apparently these grazing operators consider a suspension tantamount to
a penalty. However, there is no stigma associated with this kind of
suspension. Nonuse to allow fire rehabilitation or drought recovery at
the request of BLM is properly achieved by suspension. Also, having a
suspension imposed by BLM in this situation eliminates the paperwork
burden associated with applying for temporary nonuse.
BLM cannot adopt the third suggestion. Definitions are in the
regulations to describe what a term means. The definition is not the
proper place to describe how to implement it. Section 4130.4 gives
sufficient information about the implementation of temporary nonuse; it
is unnecessary to repeat it in the definition.
One comment from a state fish and game agency opposed the
definition of temporary nonuse, relating it to its opposition to the
proposed definition of ``preference.'' The agency opposed
institutionalizing a stocking number in grazing permits. Instead, the
comment supported the definition in the current regulations, stating
that forage allocations should be based on available forage.
We have not adopted the comment in the final rule. Changes in the
definition of ``temporary nonuse'' proposed in the rule are necessary
to implement the ruling of the 10th Circuit Court in Public Lands
Council v. Babbitt, supra, on conservation use. The interpretation in
the comment of the relationship between temporary nonuse and grazing
preference is incorrect. The proposed rule defines ``grazing
preference'' or ``preference'' as the total number of AUMs on public
lands apportioned and attached to base property owned or controlled by
a permittee, lessee, or an applicant for a permit or lease. A permit or
lease is a long-term (up to 10 years) authorization to graze livestock
on public land and is based on available forage. BLM may authorize
temporary nonuse, on the other hand, for a short
[[Page 39444]]
term, one year, when applied for by a permittee or lessee, for a
variety of reasons.
One comment stated that BLM should amend the rule with regard to
temporary nonuse to make the negative effects on grazing permittees as
predicted in the DEIS positive.
We believe the long-term effects of the rule will be favorable to
the health of the range. BLM is free to disapprove nonuse if resource
conditions do not warrant approval of temporary nonuse for conservation
reasons, and to allow temporary use by other operators if the nonuse is
for personal or business reasons. The regulations contain checks and
balances to minimize adverse effects.
Section 4100.0-5 Other Comments and Recommendations on Definitions
Some comments urged BLM to clarify the regulations by changing the
term ``actual use'' to ``actual livestock use,'' and ``actual use
report'' to ``actual livestock use report,'' because the terms relate
only to use by livestock.
The definitions of ``actual use'' and ``actual use report'' in the
final regulation remain unchanged. The current definition states that
actual use relates to livestock use. Incorporating the suggestion would
require adjusting the regulations in a number of areas in the
regulations. We believe that such changes would not add clarity to the
regulations.
One comment stated that BLM should revise the grazing rules to make
consistent the concepts of active use, monitoring, rangeland studies,
livestock carrying capacity and the term ``forage available on a
sustained yield basis.'' The comment contended that currently they lack
consistency among themselves and throughout the existing rules and the
proposed rules.
We believe that these terms are used consistently with one another
in the grazing regulations.
Many comments suggested that we define the term ``affected
interest.'' Some provided suggested language: ``Affected interest means
a permittee, lessee, allotment owner, or property owner who is directly
and materially affected by BLM action related to livestock grazing
plans or actions related to those plans' and stated that under Section
8 of PRIA, BLM has responsibility to directly consult, coordinate, and
cooperate with any allottee, lessee, and landowner in a situation where
they would be directly and materially affected by a BLM action or
proposed action. Another comment asked BLM to define the term
``affected person, interest, or party'' and clearly limit those who are
considered ``affected'' to people who would directly suffer economic
and cultural loss. The comment said that this would prevent those who
would use legal processes to impair or stop prudent land management
from having standing to bring suit. Another said that such a definition
would be consistent with the difference between a member of the public
who enjoys certain opportunities for public involvement in BLM land use
plans as part of the NEPA process, and the permittee, lessee, or
landowner who is assured of ``careful and considered consultation,
cooperation, and coordination''.
One comment stated that the term ``affected interest'' was too
vague and could be misused, and suggested that BLM should refer instead
specifically to the permittee or the landowner, as the case might be.
The terms ``affected person,'' ``affected interest,'' and
``affected party'' do not appear in part 4100. There are references to
``affected applicant, permittee or lessee, and any agent and lienholder
of record,'' ``affected permittees or lessees, and the State having
lands or responsibility for managing resources within the area'' and
other references to affected parties such as ``landowners.'' In these
cases, the definition of the word ``affected'' is clearly evident, as
pertaining to those persons whose interest is directly affected by the
provision of the regulation. There is therefore no need to provide a
separate definition for the term ``affected interest'' or any of its
variants.
We have not adopted the recommendation to replace the term
``interested public'' in the regulations with the term ``affected
interest'' and to restrict its definition to include only an allotment
owner, lessee, or landowner that is directly and materially affected by
a BLM action related to livestock grazing plans or actions related to
those plans. Although the sections of PRIA that address consultation
and coordination (sections 5 and 8) list those entities that BLM should
include in the decision process on allocation of range improvement
funds and in the formulation of allotment management plans, they do not
limit public involvement during the process leading to such BLM
decisions. To involve all those who may be interested in participating
in the decision process is not in conflict with the portions of PRIA
that address consultation and coordination. As noted elsewhere, the
final rule does affect the role of the interested public and removes
the consultation requirement from several day-to-day management level
decisions. The effect of these changes is that the interested public,
permittees, and lessees all have opportunities to participate under
Section 202 of FLPMA (43 U.S.C. 1712) in decisions on land use plans
and allotment management plans that form part of the basis for grazing
management decisions, while some day-to-day management decisions
require consultation opportunities for permittees and lessees but not
with the interested public. BLM believes that this best balances the
legitimate need for wide public participation in the management of
public lands with the need for efficiency in day-to-day matters that
directly affect permittees and lessees.
One comment urged BLM to revise the definition of ``animal unit
month,'' stating that the existing definition is outdated and causes
confusion. It suggested that the definition should be based on
livestock size and class, since these vary.
We have not adopted this comment in the final rule. The suggestion
to define an AUM in terms of livestock size and class would make
implementation of the regulation prohibitively complex and costly.
One comment stated that BLM should define the term ``authorized
use'' as it was defined by the Interior Board of Land Appeals in New
Burlington Group Grazing Association, IBLA 2003-324: ``The level of
AUMs granted in the permittee's grazing permit.'' According to the
comment, this would make it clear that authorized use is not the
previous year's actual use, an interpretation rejected by IBLA in , and
would avoid confusion as to what use is authorized.
We have not adopted the recommendation in the comment, since the
term does not appear in this form in these regulations. Terms similar
to ``authorized use'' that appear in these regulations include
``preference'' or ``grazing preference'' and ``active use,'' all of
which are defined in section 4100.0-5. These definitions and the use of
these terms in the regulations address the concern in the comment that
the regulations should have a term pertaining to the number of AUMs
authorized by a permit or lease.
One comment asked BLM to define the terms ``authorization'' and
``authorized'' to ensure clarity of application of these terms in the
regulations. Another comment stated that, to end current confusion and
ambiguity regarding meaning of the terms ``authorization'' and
``authorized'' in the grazing regulations, BLM should include a
definition of ``authorized'' in
[[Page 39445]]
the regulations as ``the level of AUMs granted by the permittee's term
grazing permit,'' or, as ``all AUM's included within the permittee's
term grazing permit.''
BLM does not agree that it should define the terms
``authorization'' and ``authorized'' as the comment suggested. In the
absence of a definition in the regulations, we apply the common
dictionary definition and meaning. This is true for terms like
``authorization'' and ``authorized,'' whose dictionary definition is
sufficient. The term is used throughout the regulations in the sense of
to ``allow'' or ``grant permission,'' and in areas that do not directly
relate to forage amounts, such as when BLM authorizes construction of a
range improvement through a cooperative range improvement agreement.
Moreover, BLM is not limited to authorizing grazing through the use of
term permits and leases. We may also authorize grazing on a temporary
and nonrenewable basis where the applicant is not a preference holder.
The final rule states unambiguously at Sec. 4130.2(a) and through
the definitions of ``grazing permit'' and ``grazing lease'' at Sec.
4100.0-5 that the grazing permit or lease is the document that
authorizes grazing use on the public lands and other BLM-administered
lands that are designated in land use plans as available for livestock
grazing. Consistent with statutory language in Sections 3 and 15 of the
TGA, and with the use of the term ``permit or lease'' in Section 402 of
FLPMA, BLM intends that the grazing permit or lease, which specifies
the terms and conditions of grazing use allowed by the permit or lease
during its term, be relied upon as the document that authorizes grazing
use.
In the proposed rule, we removed the term ``annual grazing
authorization'' from section 4140.1(b)(1)(i) (which had prohibited
grazing without a permit or lease and an ``annual grazing
authorization''). We found that this term was confusing because it
implied that there was some other document besides a permit or lease
(or in limited circumstances, an exchange of use agreement) that
authorizes public lands grazing.
The grazing regulations provide some flexibility to make minor
adjustments in the grazing use within the terms and conditions of the
permit or lease. The amount of forage consumed in any one year need not
exactly reflect the amount of forage that could be allowed to be
consumed as shown on the authorizing permit or lease. Such flexibility
is necessary to be responsive to forage conditions that can vary from
year to year due to weather conditions or as a result of emergencies
such as wildfire, or to be responsive to personal or business needs of
the livestock operator.
BLM collects fees for use authorized by the grazing permit or
lease, as may be adjusted. The use shown on the grazing fee billing
becomes a part of the permit or lease for the period of grazing use
that is specified by the grazing fee billing.
One comment urged BLM to define ``livestock carrying capacity'' in
terms that address and meet ecological needs, including plant
productivity, soil nutrient cycles, ground cover, plant community
composition, wildlife habitat function, and habitat resilience.
The current definition of ``livestock carrying capacity'' found in
the BLM grazing regulations accords with the commonly accepted
definition of this term and reads: ``Livestock carrying capacity means
the maximum stocking rate possible without inducing damage to
vegetation or related resources. It may vary from year to year on the
same area due to fluctuating forage production.'' ``Related resources''
include the ecological needs of rangelands.
One comment urged BLM to clarify the regulations by adding a
definition of ``forage available on a sustained yield basis,'' as
follows: ``Forage available on a sustained yield basis means the
average ``livestock carrying capacity'' as determined by monitoring
over time.''
We considered the definition suggested in the comment and
determined that it would not add clarity to the regulations. This
definition would equate an amount of forage with livestock carrying
capacity. ``Livestock carrying capacity'' is defined by the regulations
in terms of a ``stocking rate.'' ``Stocking rate'' is a standard term
describing a number of animals, over time, per unit area. Ultimately,
were the suggestion to be adopted, the result would be to make an
amount of forage the equivalent of a number of animals over time per
unit area. To put it simply, ``forage available on a sustained yield
basis'' is not the same thing as a number of animals per unit area per
time period. Also, adopting this suggestion would create an internal
conflict with section 4100.0-8, which states that land use plans
establish allowable resource uses and program constraints. In other
words, BLM may consider factors other than the results of monitoring in
determining livestock carrying capacity.
Comments suggested that BLM should include in the definitions of
``monitoring'' and ``rangeland studies'' the requirement to apply BLM-
approved analytical methodology. One comment criticized BLM's current
practice of providing guidance for monitoring through manuals and
handbooks, and not through regulations. Another comment asked for
clarification that monitoring is not mere observation but must occur
through rangeland studies set forth in approved BLM manuals. It
concluded that this monitoring should include data collected on actual
use, utilization, climatic conditions, special events, and trend.
Others urged that the rule ensure that monitoring will occur through
rangeland studies, as set forth in approved BLM Manuals, and not by the
``whims'' of the authorized officer.
We have not changed the regulations in response to these comments.
The BLM Manual, handbooks, and other BLM internal instruction materials
provide adequate opportunity for guidance on monitoring and rangeland
studies, and these materials are more easily updated than regulations.
For example, subsequent to implementation of the 1995 rules, BLM has
been part of an interagency team that has developed and improved a
method for assessing indicators of rangeland health. After 4 years of
use, this Technical Reference has been modified to incorporate
quantitative measures with the qualitative techniques. We have also
been developing techniques for monitoring macro-invertebrates as
indicators of water quality and have been researching the relationship
between upland range condition and macro-invertebrate populations. The
comments generally agree with this approach, and mainly discuss how we
should address monitoring in our internal guidance. We will consider
these comments when we review our Manual provisions and other internal
guidance.
Comments stated that BLM should restrict monitoring to rangeland
studies. They suggested that ``monitoring'' should be defined as ``the
orderly collection of rangeland studies data to evaluate ``* * *,''
stating that this would contrast monitoring with observations and
indicate that only the collection of ``rangeland studies'' will be
considered valid monitoring. Further, they stated, ``rangeland
studies'' should be defined as ``any study methods as set forth in
approved BLM manuals for collecting data on actual use, utilization,
climatic conditions, other special events, and trend to determine if
management objectives are being met.'' The comment's position was that
this will ensure that management decisions are based on sound
information.
We considered the suggested definitions. However, we determined
that BLM needs flexibility to use site-
[[Page 39446]]
specific methods in addition to those monitoring methods set forth in
Manual guidance. This flexibility will allow BLM to employ techniques
that meet local needs and that we can develop in cooperation with other
agencies and partners.
One comment stated that BLM should define the term ``multiple use''
to include outdoor recreational activities, such as hiking, hunting,
fishing, and other outdoor activities, because FLPMA provides authority
for managing lands on the basis of multiple use.
Although the comment correctly interprets outdoor recreation
activities to be included in any definition of multiple use, we have
not adopted the recommendation to define the term ``multiple use'' in
the regulations on livestock grazing. The term ``multiple use'' is
defined in FLPMA and the BLM planning regulations (43 CFR 1600.0-5) and
needs no further definition in these regulations.
One comment suggested that BLM should define the following:
``Affiliate,'' ``terms and conditions,'' ``cooperator,'' ``qualified
applicant,'' ``community-based decision making,'' and ``court of
competent jurisdiction.''
BLM does not believe this is needed. The term ``affiliate'' is
defined in the current regulations and remains unchanged.
Qualifications for holding a grazing permit or lease are set forth at
subpart 4110 of the grazing regulations, and the proposed amendments
simply reorder the mandatory qualifications provision found at section
4110.1. The meanings of the other terms, ``terms and conditions,''
``cooperator,'' ``community-based decision making,'' and ``court of
competent jurisdiction'' are clear from their usage and the context in
which they appear.
Section 4100.0-9 Information Collection
This section is in the regulations for information purposes. It
recites the fact that the Office of Management and Budget has approved
BLM's collection of information to enable the authorized officer to
determine whether to approve an application to use public lands for
grazing or other purposes. No public comments addressed this section,
and we have made no changes in the final rule.
Subpart 4110--Qualifications and Preference
Section 4110.1 Mandatory Qualifications
We amended this section by moving the provisions containing BLM's
procedures for determining whether an applicant has a satisfactory
record of performance to section 4130.1-1, which addresses filing
applications, and adding a cross-reference to that section. No public
comments addressed this rearrangement. We will discuss the comments
that addressed the procedures themselves when we discuss section
4130.1-1.
Comments urged BLM to add a requirement that permittees ``must be
engaged in the livestock business,'' stating that this requirement is
in the TGA, but not in the regulations. The comment went on to say that
addition of that statutory requirement would ensure that a permittee
has an economic motive to graze livestock on the permitted allotment
and is not merely acquiring a permit in order to retire it.
We have not adopted this comment in the final rule. Although those
engaged in the livestock business are preferred recipients of permits,
being engaged in the livestock business is not a statutory prerequisite
for permit eligibility. Section 3 of the TGA states that grazing
permits shall be issued only to U.S. citizens or those who have filed a
valid declaration to become a U.S. citizen, or to corporations, groups,
or associations authorized to conduct business under the laws of the
states within which the grazing district is located. Section 3 of the
Act also states that ``[p]reference shall be given in the issuance of
grazing permits to those within or near a [grazing] district who are
landowners engaged in the livestock business, bona fide occupants or
settlers, or owners of water or water rights, as may be necessary to
permit the proper use of lands, water or water rights owned, occupied
or leased by them * * *.'' For lands outside grazing districts, Section
15 of the TGA provides that the Secretary may issue leases for grazing
purposes to nearby landowners and does not require that before they can
receive a lease, they must be engaged in the livestock business. BLM
requires that to receive and retain preference for a term grazing
permit or lease, one must own or lease land or water that serves or is
capable of serving as a base for livestock operations and either be a
citizen or have filed a valid petition to become a citizen, or be a
group or corporation authorized to conduct business in the state where
the permit or lease is sought, and must have a satisfactory record of
performance as defined by the regulations.
One comment urged that the regulations should require that to hold
a grazing permit or lease, one must own livestock, stating that this is
a clear requirement of the Taylor Grazing Act as most recently
clarified by the Supreme Court in Public Lands Council v. Babbitt,
supra.
We have not adopted this suggestion in the final rule. The Supreme
Court upheld the deletion of the phrase ``engaged in the livestock
business'' from the regulation enumerating ``mandatory qualifications''
for permittees and lessees. Our approach is consistent with the TGA,
which directs that ``[p]reference shall be given to landowners engaged
in the livestock business'' (43 U.S.C. 315b). Adopting the comment
could unduly interfere with a permittee's or lessee's ability to
pasture leased livestock on the BLM allotment where they are permitted
to graze. BLM has long allowed a permittee or lessee to ``control,''
rather than own, the livestock grazing under their permit or lease. It
also is common in the livestock industry that livestock are routinely
bought and resold during the course of a year, and it may happen during
a typical year that a permittee may not, in fact, own livestock on a
particular date. It would be impractical for BLM to track, much less
enforce, a requirement that, to maintain status as a BLM permittee or
lessee, one must maintain ownership of at least one cow, sheep, goat,
horse, or burro throughout the entire year.
In Public Lands Council v. Babbitt, supra, where the plaintiff
objected to BLM's 1995 removal from the grazing regulations the
requirement that one must be ``engaged in the livestock business'' to
qualify for a grazing permit or lease, the Supreme Court found that the
TGA continues to limit the Secretary's authorization to issue grazing
permits to bona fide settlers, residents, and other stock owners and
that BLM need not repeat that requirement in their regulations for it
to remain a valid requirement. However, the Court also looked behind
the issue at the plaintiff's concern that with the removal of the
requirement that an applicant must be ``engaged in the livestock
business,'' entities could acquire permits specifically to not make use
of them (ostensibly for conservation or speculative purposes), thereby
excluding others who could make use of the range. The Court pointed out
that, under the regulations, a permit holder is expected to make
substantial use of the permitted use set forth in the grazing permit.
These provisions remain in the final rule and provide that permittees
or lessees may lose their grazing privileges if they fail to make
substantial use of them, as authorized, for two consecutive fee years.
The phrase, ``as authorized,'' is included to make clear that BLM-
approved (i.e. authorized) nonuse of grazing privileges, or privileges
that
[[Page 39447]]
BLM has suspended, are not at risk of loss for failure to use.
One comment urged BLM to address the concept of grazing
associations, explain what they are, and examine if all members of an
association must own base property.
A grazing association is a group of ranchers organized into an
association for the common benefit and welfare of the members. Grazing
associations are organized under the laws of the state where they are
located. Under section 4110.1(a)(2), a grazing association may apply
and qualify for grazing use on public lands if all members of the
association own or control land or water base property.
One comment stated that BLM should not allow large corporations to
acquire grazing permits but instead reserve permits for local families
who have a tradition of farming and ranching in the area.
It is not within BLM's authority to adopt this suggestion. The TGA
authorizes the Secretary to issue grazing permits to ``corporations
authorized to conduct business under the laws of the State in which the
grazing district is located.'' The TGA does not place limits on which
corporations may be issued permits based on their size.
One comment asked BLM to clarify whether state government agencies
are qualified to hold public land grazing permits.
Section 4110.1 on mandatory qualifications states that to qualify
for grazing use on public lands, one must own land or water base
property and must be a citizen or have filed a declaration of intention
to become a citizen or petition for naturalization, or be a group or
association authorized to conduct business in the state where the
grazing use is sought, all members of which are citizens or have filed
petitions for citizenship or naturalization, or be a corporation
authorized to conduct business in the state in which the grazing use is
sought. Although state agencies may acquire base property, they are not
a citizen, group, association, or corporation authorized to conduct
business in the state in which the grazing use is sought. Therefore,
state agencies are not qualified under the grazing regulations for
grazing use on public lands. Thus, unless the exception for base
property acquisition by an ``unqualified transferee'' in the
circumstances described at section 4110.2-2(e) applies (which provides
for issuing a permit or lease to an unqualified transferee for up to
two years when they acquire base property by ``operation of law or
testamentary disposition''), state agencies may not be granted a
grazing permit or lease.
BLM recognizes that at times a state agency, typically the state
wildlife agency, will acquire base property for various purposes, may
apply for the associated grazing preference on public lands, and may
express their wishes that the grazing preference be reallocated to
wildlife, or express an interest to limit use of the grazing preference
and permit to grazing treatments that are, for example, necessary for
maintenance or improvement of habitat for wildlife. BLM will cooperate
with state agencies wherever possible to pursue common goals. However,
BLM land use plans set forth management goals and objectives and the
ways and means available for achieving those objectives. Where state
agencies have acquired base property and do not wish to use the public
land grazing preference associated with that property in conformance to
the governing land use plan, BLM may work with the state agency,
affected permittees or lessees, and any interested public to consider
options regarding the management of affected public lands. This could
include reallocating the forage to another permittee or lessee. It is
not within BLM's authority to issue term grazing permits to state
agencies, even if they own livestock, because they do not meet
mandatory requirements to qualify for grazing use on public lands.
This, however, does not preclude other arrangements such as where the
state agency may form a separate corporation chartered by the state for
purposes of holding and managing a public lands grazing permit.
One comment suggested that we amend section 4130.1-1 to require
that BLM offer permittees and lessees a new permit or lease 150 days in
advance of their permit or lease expiration date, and suggested that we
amend section 4110.1(b) to refer to this proposed requirement.
We have not adopted this comment in the final rule. Permit renewal
time frames are best addressed in BLM's policy guidance and the BLM
Manual rather than in regulations. Also, section 4110.1 deals only with
qualifications of applicants, and the only necessary cross-reference is
to provisions in section 4130.1-1 on determining satisfactory
performance, which is a mandatory qualification. Other procedural
matters are not relevant to section 4110.1.
Finally, one comment urged BLM to prohibit the transfer of
preference to groups seeking to eliminate grazing.
BLM has not changed its regulations in response to this comment. In
order to qualify for grazing use on public lands, one must still meet
the requirements of section 4110.1. Other regulatory provisions allow
BLM to cancel preference should a permittee or lessee fail to make
grazing use as authorized.
Section 4110.2-1 Base Property
In this section, we proposed an editorial change, dividing
paragraph (c) of the existing regulations into two parts, designated
(c) and (d), since the paragraph addressed two subjects: the
requirement to provide a legal description of the base property, and
the sufficiency of water as base property. No public comments addressed
this section, and we have made no changes in the final rule.
Section 4110.2-2 Specifying Grazing Preference
We amended this section in the proposed rule to replace the term
``permitted use'' with the term ``grazing preference'' or
``preference.'' We discuss comments on the change in terminology under
the definitions section. No comments addressed this section as such,
and we have made no changes in the final rule.
One comment on this section urged BLM to give preference to buffalo
ranchers in issuing grazing permits because use by buffalo pre-dates
use by cattle on the range, and they therefore have right by history to
receive first consideration for grazing use. Another comment stated
that BLM should let ranchers decide how many livestock should be grazed
and adjusted based on their judgment because most ranchers are good
stewards of the land. Another comment urged BLM not to make changes in
preference solely on the basis of forage allocations in land use plans,
stating that monitoring must be used to justify changes in authorized
levels of grazing use.
We have not changed the final rule in response to these comments.
BLM has no authority to give priority to buffalo ranchers when issuing
grazing permits or leases. The TGA requires that when issuing grazing
permits, the Secretary must give preference to landowners engaged in
the livestock business, bona fide occupants or settlers, or owners of
water or water rights, as may be necessary to permit the proper use of
lands, water, or water rights owned, occupied, or leased by them.
(Grazing permits authorize grazing use on lands within grazing
districts established under Section 1 of the Act.) The Act also
requires that when issuing grazing leases, the Secretary must give
preference to owners, homesteaders, lessees, or other lawful occupants
of lands contiguous to the public lands
[[Page 39448]]
available for lease, to the extent necessary to permit proper use of
such contiguous lands, with certain exceptions. (Grazing leases
authorize grazing on public lands outside grazing districts.)
Therefore, under the TGA, the kind of animal an applicant for a permit
or lease wishes to graze on public lands has no bearing on whether the
applicant has or will be granted preference for a grazing permit or
lease. BLM may issue permits to graze privately owned or controlled
buffalo under the regulations that provide for ``Special Grazing
Permits or Leases'' for indigenous animals (section 4130.6-4), so long
as the use is consistent with multiple use objectives expressed in land
use plans.
Both Sections 3 and 15 of the TGA and Sections 402(d) and (e) of
FLPMA entrust to the Secretary of Interior the responsibility for
determining and adjusting livestock numbers on public lands. The
Secretary has delegated this responsibility to BLM. BLM may not
delegate this responsibility to the ranchers. BLM works cooperatively
with ranchers, the state having lands or responsibility for managing
resources, and the interested public in determining terms and
conditions of grazing permits and leases, including the number of
livestock to be grazed. Permits and leases contain terms and conditions
to ensure that grazing occurs in conformance to land use plans, which
are developed with public involvement.
The regulations at section 4110.2-2 do not provide for the
establishment of preference solely on the basis of the forage
allocation contained in the land use plan. Rather, they state that,
alternatively, preference may be established in an activity plan or by
decision of the authorized officer under section 4110.3-3. Some land
use plans determined a forage allocation for livestock on an area-wide
basis and apportioned that allocation among qualified applicants. Other
land use plans simply recognized previous allocations and stated that
future adjustments to these allocations would be guided by the multiple
use objectives contained in the land use plan, be implemented by
grazing decisions, and be supported by monitoring information.
Section 4110.2-3 Transfer of Grazing Preference
The proposed rule made editorial changes to this section to conform
the rule to the definition of ``grazing preference.''
A comment on this section suggested that before issuing a permit or
lease that arises from transfer of preference, BLM should conduct
capacity surveys, condition assessments, evaluate monitoring data, and
complete NEPA compliance documentation so that the terms and conditions
of the permit or lease that we issue reflects current allotment
conditions.
BLM does not control when or for what allotments it will receive
applications to transfer grazing preference and issue a permit arising
from that transfer. By the end of fiscal year 2003, BLM had assessed
about 40 percent of its allotments for achievement of standards of
rangeland health. In these areas, BLM reviews the application in light
of the existing assessment and NEPA compliance documentation, and
issues the permit or lease with appropriate terms and conditions. BLM
continues to prioritize its data gathering needs based on known
resource management issues. If BLM does not conduct an assessment of
rangeland health and otherwise ``fully process'' a permit or lease
application that accompanies a preference transfer, it includes terms
and conditions on the newly issued permit or lease to ensure
achievement of the standards and conformance to appropriate guidelines.
These permit or lease terms and conditions include a statement that, if
a future assessment results in a determination that changes are
necessary in order to comply with the standards and guidelines, BLM
will revise the permit or lease terms and conditions to reflect the
needed changes.
Section 4110.2-4 Allotments
In the proposed rule, we removed the requirement that BLM consult
with the interested public before making an allotment boundary
adjustment because it is primarily an administrative matter that we
implement by decision or agreement following a NEPA analysis of the
action. This means that, under the final rule, allotment boundary
changes will no longer trigger required consultation, cooperation, and
coordination with the interested public. This change is intended to
improve the administrative efficiency of grazing management.
Many comments expressed opposition to any reduction in the role of
the interested public, but relatively few comments addressed this
particular function. One comment stated that this change would affect
the public role in NEPA analysis of boundary changes. That is
incorrect. The public role under NEPA is unaffected by this rule
change.
One comment stated that boundary adjustments could affect native
plant populations and requested continued public involvement.
Environmental issues such as impacts on native plants are best
addressed through the NEPA process, which is unaffected by this change.
BLM has found that much of the required consultation with the
interested public is duplicative of these other processes and often
delays routine, non-controversial decisions.
In BLM's view, the NEPA process, informal consultations and the
ability to protest before a decision is final provide adequate
mechanisms to identify legitimate public concerns over boundary
changes. Thus, no changes have been made in the final rule.
One comment on this section suggested that BLM should consult with
base property lien holders before adjusting allotment boundaries, and
should remove its authority to adjust allotment boundaries by decision
so that the permittee or lessee has control over allotment boundaries
rather than BLM.
We have not adopted these comments in the final rule. Under section
4110.2-4, BLM will consult with affected permittees or lessees before
adjusting allotment boundaries. Should permittees or lessees wish to
consult regarding boundary adjustment proposals with those holding
liens on their base properties, they may do so at their option. It is
necessary for BLM to retain authority to adjust allotment boundaries by
decision for those situations where all affected parties cannot reach
consensus regarding an allotment boundary adjustment.
Section 4110.3 Changes in Grazing Preference
In the proposed rule, we removed the term ``permitted use''
wherever it occurred in this section and replaced it with the term
``grazing preference'' for the reasons explained previously. We also
added a third paragraph to provide that our NEPA documentation
addressing changes in grazing preference would include consideration of
the effects of changes in grazing preference on relevant social,
economic, and cultural factors.
Numerous comments addressed both aspects of this section.
One comment stated that BLM should only consider changes in
preference when there has been a permanent change in the number of AUMs
available for attachment to base property. The comment asserted that,
because AUMs of preference were established through formal
adjudication, it would be inappropriate for BLM to change grazing
preference as needed to manage, maintain, or improve rangeland
productivity, to assist in restoring ecosystems to properly functioning
condition, to conform to land use plans
[[Page 39449]]
or activity plans, or to comply with the provisions of subpart 4180.
Another comment stated that is was important for permittees and lessees
to retain preference as to potential AUMs that have been suspended, so
that when productivity improves the AUMs are awarded to those who own
or control the base property to which the suspended preference is
attached. Yet another comment stated that BLM should make clear in this
section that any changes to grazing preference must be supported by
monitoring that is conducted using BLM-approved Manual procedures.
BLM rejects the contention that because a forage allocation
reflected by an existing preference may have at its roots a pre-FLPMA
formal adjudication, it would be inappropriate to change it when needed
to improve rangeland productivity, restore ecosystems to properly
functioning condition, conform to land use plans or activity plans, or
comply with the provisions of subpart 4180. As pointed out by the
Supreme Court in Public Lands Council v. Babbitt, supra, ``the
Secretary [of the Interior] has since 1976 had the authority to use
land use plans to determine the amount of permissible grazing, 43
U.S.C. Sec. 1712.'' Further discussion of the role of FLPMA-mandated
land use plans with respect to BLM's statutory multiple use mission,
including the mission to provide for the orderly administration of
livestock grazing on public lands under the TGA and to improve
rangeland conditions, is included in the previous section that
addresses removing the definition of ``permitted use'' and redefining
``preference'' to include a forage allocation element.
The final regulations in section 4110.3-2(b) provide that, when BLM
decreases active use on an allotment, we will put the reduction in
suspension and it will remain associated with base property to which
the preference for use in the allotment is attached. This will ensure
that the preference holder will be given first consideration for use of
the additional forage as provided at section 4110.3-1(b)(1). BLM
considered the comment that urged requiring that changes in grazing
preference be supported by monitoring methods contained in BLM Manuals
and determined that that BLM needs flexibility to use site-specific
methods in addition to those monitoring methods set forth in Manual
guidance. This flexibility will allow BLM to use techniques that meet
local needs and that BLM may develop in cooperation with other agencies
and partners.
We received several comments that opposed including in this section
language providing that before BLM changes grazing preference, we will
analyze, and if appropriate, document relevant social, economic, and
cultural effects of this action. These comments urged BLM to abandon
the provision to include social, economic, and cultural considerations
in its grazing decisions. The reasons provided by these comments were:
neither NEPA, FLPMA, nor PRIA authorize BLM to adopt rules to protect
the ``custom and culture'' of the western cowboy or rancher, protect
ways of life, or insulate the public land livestock industry from
economic impacts, nor does NEPA authorize BLM to ignore the resource
protection requirements of FLPMA and PRIA; BLM should apply an even-
handed administration of existing laws and regulations rather than try
to preserve a way of life and rural character of ranching communities,
which the agency has no authority to do; open space and rural character
are best preserved through local zoning and tax policies; BLM field
managers have routinely considered social, economic, and cultural
effects, despite the fact that NEPA does not require analysis of these
considerations except in connection with preparing an EIS, which is why
rangeland conditions are still unsatisfactory; it sets the agency up
for failure, since no permittee would be willing to share the financial
aspects of their operation with BLM; NEPA already allows for
consideration of such effects into environmental analyses, so this
proposal is duplicative and unnecessary; BLM's policy strategy is based
on a skewed interpretation of the law; NEPA does not require that
grazing decisions incorporate analyses of social, economic, and
cultural impacts when preparing environmental assessments (EA); Federal
law directs that the public lands be managed for multiple uses, of
which grazing is only one; it would result in management that benefits
ranchers over the short term and damages the land over the long term;
and public land grazing is not very cost effective to begin with, and
this provision would perpetuate that.
We have not adopted the suggestion to abandon the requirement for
BLM managers to analyze and, if appropriate, document their
consideration of relevant social, economic, and cultural factors before
changing grazing preference. BLM is obligated under 40 CFR 1508.8(b) to
assess the consequences, i.e., impacts or effects, of BLM actions,
authorizations, and undertakings on * * * ``ecological * * * aesthetic,
historic, cultural, economic, social, or health * * *.'' aspects of the
human environment. CEQ regulations at 40 CFR 1508.9(b) also direct that
Environmental Assessments include brief discussions of the impacts of
the proposed action and alternatives. The provision at section 4110.3
is consistent with this direction and intent of NEPA. Consideration of
these factors in the NEPA context does not result in a particular
outcome, but ensures from a procedural perspective that the information
is considered and, if appropriate, documented in the associated NEPA
analysis.
Other comments urged BLM to include in any future direction,
guidance, or regulation formulated with respect to social, economic, or
cultural considerations, an emphasis on the requirement for a
comprehensive and thorough assessment of the impacts on multiple
resource values of the public rangelands, not just grazing impacts,
including: The environmental, educational, aesthetic, cultural,
recreational, economic and scientific value to the nation of fish and
wildlife; the relevant social, economic and cultural effects of
livestock overgrazing on recreational users, municipal water users,
threatened and endangered species management, the need and cost for
erosion control, threatened and endangered species recovery, and
restoration and rehabilitation of public lands, watersheds, and
wildlife habitat damaged by livestock grazing; the economic, social,
and cultural considerations of the vast majority of the people in this
country who view public lands as a place to produce wildlife, for
recreational enjoyment, clean water, and wild and scenic vistas, and;
any economic effects of the subsidy inherent in the grazing program due
to the cost of administering the program, undervalued Federal grazing
permits, and the benefits of foregone uses.
BLM agrees that some of the considerations and assessment topics
listed in the comment may be relevant to specific proposal(s) for
changes in grazing preference. Those determinations would be made for
each individual proposal on a case-by-case basis. BLM would likely
consider other factors listed in the comment, such as ``grazing
subsidies'' related to grazing fee issues and/or costs of administering
the program, and the value of grazing permits, outside the scope of
future site-specific proposals for changes in grazing preference.
Another comment stated that, if BLM adopts the proposal to consider
social, economic, and cultural considerations in its grazing decisions,
we should be
[[Page 39450]]
required to consider the past, present, and future impacts of grazing
management decisions on the culture and traditions of Tribal members.
This comment asserted that BLM must include in its analysis a full
review of the economic costs to the public of livestock grazing on
public lands, and the economic, social, and cultural effects that
grazing has on Tribal nations and their members due to the effect of
grazing activities on the Tribal resources (e.g., fish, wildlife,
roots, berries).
With respect to considering impacts of changing grazing preference
on Tribal members, the consideration, when appropriate, of social,
economic, and cultural factors will not necessarily preserve any
particular lifeway associated with the use of public lands. Under NEPA,
the American Indian Religious Freedom Act, and the National Historic
Preservation Act, however, BLM must specifically consider the impacts
of BLM actions and undertakings with respect to the concerns and
traditional cultural properties of federally recognized Indian Tribes.
The final rule does not subvert this direction.
One comment stated that the analysis did not adequately consider
the impacts of grazing, and of the proposed revisions, on American
Indian sacred sites. The comment also stated that additional analysis
focused on protecting the physical integrity of such sites is
necessary. The comment noted particularly the sacredness attributed by
Tribes to natural springs and surface waters.
BLM recognizes its responsibility to manage heritage and cultural
resources, including sacred sites under the National Historic
Preservation Act and other authorities (e.g., Executive Order 13007),
``Indian Sacred Sites''). Inventory, protection, stabilization, and
enhancement of cultural resources have become integral parts of BLM
management practices and planning initiatives. BLM does not believe any
additional analysis is necessary. Beginning on page 4-41, the FEIS
discusses the potential impacts of the proposed revisions on heritage
resources. For example, the FEIS notes that new project developments
will continue to be analyzed for effects on heritage resources on a
case-by-case basis. For field office planning efforts and in accordance
with BLM Manual 8100--The Foundations for Managing Cultural Resources,
BLM will continue to address livestock grazing impacts at the land use
or allotment management planning level, and conduct cultural resource
surveys before taking management actions that could damage heritage
resources. Historic and prehistoric sites found during such surveys
would be protected in accordance with the National Historic
Preservation Act of 1966 and other laws or executive orders as provided
in 36 CFR part 800.
The FEIS also states that Tribal consultation begins as soon as
possible in any case where it appears likely that the nature and/or
location of the activity could affect Native American interests or
concerns. Finally, section 4120.5-2(c) of the final rule provides that
BLM will cooperate with Tribal agencies, including Tribal grazing
boards, in reviewing range improvements and allotment management plans
on public lands. During such Tribal consultation, Tribes may submit
information about all sites, including natural features such as springs
and surface waters that have cultural or religious significance. BLM
will consider all relevant information before making decisions about
grazing.
One comment stated that BLM should consider social, economic, and
cultural effects only to the extent that agency decisions move toward
balance and harmony with the environment, which is the stated purpose
of NEPA. Another urged BLM to provide criteria for an ``appropriate
analysis,'' because the regulation is not clear as to what analysis
would be appropriate and whether any action could be taken until the
analysis has been conducted.
NEPA is a procedural statute, and does not direct the outcome of
any agency decisionmaking process. The selection of impact topics to be
considered in any environmental document is not pre-ordained, and BLM
must tailor it to the issues identified for each proposed action,
authorization, or undertaking. The commensurate level of impact
analyses is tied to these selections. BLM believes the consideration of
social, economic, and cultural factors provided for in section
4110.3(c) of the proposed rulemaking--``analyze and, if appropriate,
document relevant social, economic, and cultural effects of the
proposed action''--is consistent with the intent of NEPA.
BLM has decided not to provide criteria for an ``appropriate
analysis'' because the level of analysis considered to be
``appropriate'' will vary with each site-specific proposal and,
consequently, specific criteria are unnecessary. As with all proposed
actions for which environmental analysis is conducted pursuant to NEPA,
the level of analysis must be tailored to the issues identified for
each proposal and the level of impacts anticipated. Additionally, as
with other Federal actions for which NEPA analysis is required, no
action may be taken until a decision by the authorized officer is
final. This is no different from any other analysis conducted under
NEPA where a decision must be made before taking action.
One comment stated that there are thousands of archaeological,
historical, and cultural sites that are eligible or potentially
eligible for the National Register of Historic Places that have been
and are being damaged by livestock grazing on BLM-administered
allotments. The comment also stated that BLM did not adequately
consider these impacts, and that case-by-case review of range
improvement projects will be insufficient for assessing the effect of
grazing within the boundaries of documented historic properties.
BLM adequately evaluated and disclosed the effects of the proposed
rule on cultural resources in the FEIS. For example, as noted in the
above response, page 4-41 of the FEIS discusses the potential impacts
of the proposed revisions to the grazing regulations on heritage
resources. New project developments will continue to be analyzed for
effects on heritage resources on a case-by-case basis, and BLM will
analyze the impacts on such resources from grazing at the land use or
allotment management planning level. BLM disagrees with the comment's
assertion that review of individual range improvement projects will not
be sufficient to assess grazing impacts on historic properties. Before
authorizing surface disturbance, BLM must identify cultural properties
that are eligible for inclusion in the National Register of Historic
Places and consider the effects of the action through the consultation
process in Section 106 of the National Historic Preservation Act of
1966.
BLM notes that this final rule does not constitute an
``undertaking'' with the potential to affect historic properties as
defined in 36 CFR 800.16, since promulgating the rule is not an on-the-
ground activity affecting such resources. Promulgating a rule makes
certain activities possible but does not mean that these activities can
be tied to specific historic properties in specific places. However,
NEPA and FLPMA do apply, and cultural resources were broadly considered
in our planning and regulatory activities. This was done at a
programmatic level for this rule in the FEIS, where the effects of the
proposed rule (generally) were assessed with regard to potential
effects on cultural resources (generally). Absent any specific actions
it is not possible to identify potential effects on specific historic
properties, and the rule does
[[Continued on page 39451]]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
]
[[pp. 39451-39500]] Grazing Administration--Exclusive of Alaska
[[Continued from page 39450]]
[[Page 39451]]
not become an ``undertaking'' with the potential to affect historic
properties as defined in the regulations. The regulations established
by the Advisory Council for Historic Preservation make clear that once
an agency determines there is no undertaking, or that its undertaking
has no potential to affect historic properties, the agency has no
further Section 106 obligations.
Other comments stated that emphasis on considerations such as the
social, economic, and cultural effects of agency decisions that change
levels of grazing preference would have adverse impacts on natural
resources, leading to degradation of the public lands. Comments stated
that improving working relationships with grazing permittees and
lessees would tend to weaken the ability of BLM to manage rangelands in
a timely fashion by adding considerable time before action can be
taken. One comment stated that BLM should have working relationships
with the public, not just ranchers. Another accused BLM of appeasing
ranchers and increasing the level of environmental damage.
We have not materially changed current policy with regard to the
consideration of social, economic, and cultural impacts of decisions in
the grazing program. We currently consider the social, economic, and
cultural effects of actions that change grazing use levels, as well as
other aspects of grazing operations in the NEPA process. The main
difference is that, under these changes to the regulations at section
4110.3(c), BLM will more consistently document these considerations.
This change in the regulations will help improve consistency across the
Bureau in the analysis of social, economic, and cultural impacts. The
consistent documentation of these concerns does not come at the expense
of protecting natural resources and maintaining healthy rangelands.
Rather, it improves working relationships between BLM and ranchers by
ensuring that social, economic and cultural impacts are analyzed and
disclosed where appropriate. Since this provision requires no more
analysis than current policy does, we anticipate few delays in the
authorization and implementation of grazing management actions on
public lands attributable to this provision.
One comment urged BLM to include, in addition to the provision as
proposed, provisions to require BLM to work closely with local planning
departments, to include consultation, cooperation, and coordination
with the grazing permittee or lessee, and state and local government in
this section, and to give consideration to provision for local, state,
and regional governance.
Under 43 U.S.C. 1712(c)(9), 40 CFR 1500.4(n), 1501.2(d)(3),
1501.7(a)(1), 1506.2(b), and Departmental Manual and BLM Handbook 1790,
BLM is directed to coordinate to the degree feasible with state and
local governments. BLM sees no need to reaffirm existing guidance on
this aspect of planning and environmental analysis in this rule.
Section 4110.3-1 Increasing Active Use
In keeping with the changes in the meanings of ``preference'' and
``active use,'' in the proposed rule we amended the heading of this
section to refer to active use and removed the term ``permitted use''
throughout. Because the provision affects how we regulate available
forage, we asked the public to comment on whether BLM should use the
term ``available forage'' instead of ``active use.''
BLM also asked for specific comments on this section to help
determine whether there have been situations in which the ability of
permittees or lessees to obtain loans was adversely affected by having
some of their forage allocation suspended.
We proposed to reorganize this section to describe how we authorize
increased grazing use when additional forage is available either
temporarily, or on a sustained yield basis. BLM added two new
paragraphs to clarify who has priority when we grant additional grazing
use because livestock forage has become available on either a
nonrenewable basis or a sustained yield basis.
In the final rule we have added language in the introductory text
of this section that makes it clear that decisions increasing active
use are also based on monitoring or documented field observations, just
as decisions decreasing active use must be. Changes in preference,
whether increases or decreases, already must be supported by monitoring
or documented field observations under section 4110.3.
A number of comments raised issues relating to additional forage
temporarily available. Before discussing the comments, we will briefly
describe how BLM handles forage that is temporarily available.
In conformance with land use plan multiple-use objectives and
decisions, BLM may allocate additional forage that is temporarily
available for use by livestock, and authorize its use on a nonrenewable
basis. Because it is a temporary forage allocation, the action of
authorizing such use does not increase active preference. BLM commonly
refers to such temporary forage allocations as ``TNR,'' which stands
for ``temporary and nonrenewable'' livestock grazing use. Before
authorizing TNR livestock grazing use, either by issuing a nonrenewable
grazing permit, or by temporarily modifying the grazing permit or lease
of a preference operator, BLM ensures compliance with NEPA analysis
requirements and documents that this action conforms to applicable land
use planning decisions. BLM completes NEPA-required analysis either in
response to a specific circumstance following an application for
additional use, or by completing a regionally-based analysis, in
anticipation of applications, that specifies natural resource and
weather-based criteria or thresholds that must be met or crossed, as
well as other conditions that must be met before BLM will authorize TNR
livestock grazing use.
We have not changed the regulations in response to these comments,
which we discuss below.
BLM received numerous comments asking that a permittee's or
lessee's stewardship efforts be included as criteria for determining
who is to receive temporary, as well as permanent, increases in grazing
use.
Additional forage that is temporarily available most often occurs
in years when favorable growing conditions result in above-average
forage production. Although stewardship efforts can contribute to
additional forage for livestock that is temporarily available, BLM
believes that in most cases, it would be difficult to ascertain the
role of stewardship versus the role of good growing conditions in
contributing to the increase. Therefore, requiring BLM to consider and
reward this role would be impractical.
One comment asserted that only existing permittees and lessees
should be eligible for grants of additional forage for livestock when
BLM finds that it is available under section 4110.3-1(b).
Section 4110.3-1 provides that if BLM determines that there is
additional forage available for livestock within an allotment, it will
first be apportioned to remove any suspensions of that allotment's
permittees or lessees, then to those permittees or lessees in
proportion to their contributions to stewardship efforts that led to
the increased forage production, then to those permittees and lessees
in proportion to the amount of their grazing preference, then to other
qualified applicants. The comment urges BLM to remove ``other qualified
applicants'' from the list of possible
[[Page 39452]]
recipients of the forage increase. BLM believes that it would be a rare
occasion when there would be an increase in forage available for
livestock that would be made available, following satisfaction of the
other requirements of this regulation, to ``other qualified
applicants.'' Nonetheless, BLM sees no need for undue restrictions on
who may receive this public benefit.
One comment advocated that BLM should determine if additional
forage is temporarily available only upon application by a qualified
applicant. If, the comment went on, following such application, BLM
finds additional forage to be temporarily available, we should be
obliged to approve its use by the applicant, following consultation,
cooperation, and coordination with the preference permittee or lessee.
BLM generally responds to, rather than solicits, applications for
TNR use. It is unnecessary to make it a regulatory provision that BLM
can determine additional forage to be available only if a qualified
applicant applies for it first. Most commonly, BLM receives
applications for TNR use from the permittee or lessee with preference
for use in the allotments where the forage is available. The
regulations provide also that a person other than the preference
permittee or lessee may apply for TNR use.
One comment urged us to provide in this section that BLM must
consult with wildlife agencies before temporarily, as well as
permanently, increasing grazing use, so that they can effectively
manage wildlife whose populations can be affected by grazing.
As provided by section 4130.6-2, BLM is required to consult,
cooperate, and coordinate with the preference permittee or lessee and
the state having lands or responsibility for managing resources in the
area prior to authorizing TNR use. Thus the state agencies responsible
for managing wildlife resources will be consulted prior to a proposed
decision for increases or decreases in active use as well as for TNR
use. In addition, BLM will consult with state wildlife agencies as part
of the process to develop the NEPA compliance documentation.
One comment asked BLM to clarify in this section that additional
forage will be, rather than may be, apportioned to qualified applicants
consistent with land use plans.
BLM retained the term ``may,'' rather than ``will,'' as it pertains
to apportioning additional forage available for livestock grazing, in
order to retain our complete discretion in this matter. The wording in
the final rule reflects that in the pre-1995 provision. It means that
BLM will not apportion additional forage temporarily available if there
is no demand for it. (As to additional forage available on a sustained
yield basis, on the other hand, the regulations state that BLM will
first use it to end suspensions that were in place due to lack of
forage. Any further apportionment of such forage, however, will occur
only after consultation with the affected state agencies, permittees,
lessees, and the interested public.)
One comment interpreted changes in this section to mean that BLM
could designate ephemeral or annual rangelands based on a finding that
forage was temporarily available and allow BLM to approve grazing
regardless of land use plan decisions and land conditions.
A BLM determination that additional forage for livestock is
available on a temporary basis does not serve to designate ephemeral or
annual rangelands. BLM makes these determinations in land use plans.
The next group of comments addressed increases generally. BLM made
one change to the final regulations in response to these comments.
One comment asked BLM to make it clear that section 4110.3-1(b)(2)
refers only to forage available for livestock, so that the regulation
is not interpreted to preclude allocations of additional forage
available on a sustained yield basis to other uses.
Section 4110.3-1 (b)(2) is within paragraph (b), which we have
amended in this final rule by adding the word ``livestock,'' so that it
states in part, ``When the authorized officer determines that
additional forage is available for livestock use on a sustained yield
basis, he will apportion it in the following manner * * *.'' BLM
believes that this makes it clear that the forage being referred to is
forage allocated to livestock through planning and decision processes,
in contrast to, for example, forage that is allocated to wild horses
and burros, or forage that is allocated to wildlife, using the same
planning and decision processes.
Another comment asked BLM to include assurances or a requirement
that increased forage allocation to wildlife will result when wildlife
organizations contribute to a project that increases available forage.
The suggestion to provide assurances in this subpart that increased
forage resulting from projects funded by wildlife organizations is
outside of the scope of this rule. However, before agreeing to fund
projects that will increase forage available on public lands, wildlife
organizations are free to negotiate the terms under which to make such
contributions, and to memorialize these arrangements through
cooperative agreements with BLM and other project participants.
Another comment urged BLM to establish criteria that must be met
before preference can be increased.
Regulatory criteria for making changes in grazing preference,
including increases in preference, appear in section 4110.3(a). They
include: to manage, maintain, or improve rangeland productivity; to
assist in restoring ecosystems to properly functioning condition; to
conform to land use plans or activity plans; or to comply with the
provisions of subpart 4180.
One comment urged BLM to provide permittees and lessees the right
to ``petition'' for increased grazing use up to the limit of their
preference, subject to its availability.
Under previous and current regulations at section 4130.1-1,
permittees and lessees have the right to apply for grazing use at
whatever level they desire, regardless of preference. BLM's response to
the application, however, will be guided by available resource
information pertinent to the decision, be consistent with land use plan
objectives and decisions, and comply with these grazing regulations.
One comment stated that BLM should develop and demonstrate a
process that would allow grazing to increase if monitoring shows that
an increase is warranted.
The section discussed in this portion of the preamble already
contains, and this rule does not remove, procedures to allow grazing to
be increased.
One comment suggested that the interested public should be excluded
from consultation, cooperation, and coordination under section 4110.3-
1(b)(2).
We have not adopted this suggestion in the final rule. The
allocation of additional livestock forage available on a sustained
yield basis, after satisfaction of any suspension of preference of the
permittee or lessee for the allotment where the additional forage is
located, is considered a planning decision by BLM. Therefore, it is
appropriate to consult, cooperate, and coordinate with the interested
public, as well as affected permittees, lessees, and the state, before
issuing a proposed decision allocating that additional livestock
forage.
Section 4110.3-2 Decreasing Active Use
Again, in this section we replaced the term ``permitted use'' with
the term ``active use'' throughout. We also amended paragraph (a) to
provide that BLM will document its observations
[[Page 39453]]
that support the need for temporary suspension of active use, and
amended paragraph (b) to provide that BLM will place any reductions in
active use made under this paragraph into suspension rather than
require a permanent reduction.
Several comments on this section stated that BLM should have the
option to require that preference reductions made under section 4110.3-
2(b) be placed in ``nonuse'' rather than be suspended by BLM.
BLM has not adopted this suggestion in the final rule. Adopting
this suggestion would confound, rather than clarify, the management
implications of the action of ``suspending'' active preference versus
approving the ``nonuse'' of active preference.
Before 1995, the grazing regulations provided that when active use
was reduced, the amount reduced could be either ``held [by BLM] in
suspension or in nonuse for conservation/protection purposes.'' This
pre-1995 terminology created 3 categories of preference: ``active,''
``suspended'' and ``nonuse for conservation/protection purposes.''
Having three categories of preference made it less clear under what
management circumstances it was appropriate for BLM to suspend active
use rather than ``hold'' nonuse (of active use) for conservation/
protection purposes. Further conceptual blurring was created by BLM
policy, as stated in our handbook, that a permittee/lessee could
annually apply and receive approval for nonuse of all or a part of his
active use for reasons associated with personal or business needs, or
for ``conservation and protection of the range,'' but this ``short-
term'' nonuse did not affect preference status. Based on the pre-1995
regulations, there currently are some grazing permits and leases that
list nonuse that is being ``held'' by BLM and which is included as a
part of the total grazing preference. However, this nonuse, i.e., that
portion of active use that was ``held in nonuse conservation/
protection'' under the pre-1995 regulations, is the practical
equivalent of suspended preference as this term is used in this rule.
This final rule intends to establish and clarify a distinction
between ``suspended'' preference and ``nonuse'' of preference, thus:
Suspended preference arises from an action initiated by
BLM. BLM suspends preference when necessary to manage resources by
decreasing active use under section 4110.3-1 or as a penalty action for
grazing regulations violations under section 4170.1-1. In contrast,
nonuse arises when BLM approves an application submitted by a grazing
permittee or lessee not to use some or all of the active use authorized
by a permit or lease under section 4130.4.
Suspended preference is shown on the grazing permit or
lease, and along with active use is part of the total grazing
preference of the permittee or lessee. BLM does not issue a grazing
permit or lease to authorize nonuse. The ``conservation use
permitting'' provisions that allowed for this practice were disallowed
by the 10th Circuit Court of Appeals in 1998 and are removed from the
grazing regulations by this rule. As explained previously, because of
the regulations that were in place before 1995, there is one exception
to the statement that we do not issue grazing permits or leases that
authorize nonuse. On some permits and leases, BLM still shows nonuse as
a part of the total preference because pre-1995 regulations allowed
reductions of active preference to be ``held in nonuse for
conservation/protection purposes.'' However, this nonuse is the
practical equivalent of suspended preference as clarified by this rule.
BLM may suspend preference on a short-term basis, as may
be needed, for example, to allow recovery of vegetation after a fire.
BLM also may suspend preference for a longer term or indefinitely, as
may be needed, for example, when BLM determines through monitoring that
there is not enough livestock forage produced on a sustained yield
basis to support the active use authorized by a permit or lease, and
that forage production is not expected to be able to support that level
of use for the foreseeable future. To receive BLM's approval for
nonuse, permittees or lessees must apply for nonuse of some or all of
the active use authorized by their permit or lease, prior to the start
date of the grazing use period specified on their permit or lease. The
BLM authorized officer authorizes the nonuse by approving the
application, as indicated by his signature on the application. BLM will
not approve of nonuse for longer than one year at a time, and will
approve it only if we agree that nonuse is warranted for the reasons
provided on the application.
BLM must issue a grazing decision or be a party to a
documented agreement to suspend preference. BLM records suspended
preference on permits and leases and in operator case records for
recordkeeping purposes, but suspended preference is not available for
active use under the permit or lease. BLM need not issue a decision or
have a documented agreement to approve nonuse. If BLM approves an
application for nonuse for reasons of rangeland conservation,
protection, or enhancement, or for personal or business needs, the
permittee or lessee is precluded from using the amount of active use
that has been approved for nonuse. BLM may subsequently approve a later
application to make use of what had been approved as nonuse should
circumstances change (e.g., moisture is received later in the season
that increases forage production, thereby alleviating the need for
nonuse for conservation reasons, or an operator purchases livestock
mid-season and because of this can use forage that he previously could
not because he did not own enough livestock).
Suspended preference is a recordkeeping convention adopted by BLM.
If, after the suspension, BLM determines that there is an increase in
the amount forage available for livestock on a sustained yield basis,
this record indicates who has priority for its use and in what amount.
As explained above, due to the regulations in place before 1995, some
permits and leases show ``nonuse'' as a part of the grazing preference.
In actuality, this nonuse is equivalent to suspended use as the concept
has been clarified by this rule.
One comment requested that BLM not change the regulation and
continue to provide that the active use that is reduced under this
paragraph be terminated rather than suspended.
We did not adopt this comment in the final rule. It is important to
keep record of any reductions in active preference as ``suspended''
preference. It helps BLM to track, by allotment, permittee or lessee,
and base property, the original livestock grazing use forage
allocation, the attachment of that allocation to base property, and
subsequent adjustments arising both from management actions to increase
or reduce use, and from administrative actions such as preference
transfers. Suspended preference is attached to base property, and is
transferred along with active preference. This record facilitates BLM's
ability to apply section 4110.3-1 to reinstate active use to permittees
and lessees, upon a BLM determination that forage for livestock, in an
amount that exceeds active preference, has become available on a
sustained yield basis.
Another comment asked that BLM cross-reference this paragraph to
section 4110.3-1 in order to make it clear that activation of
preference suspended under section 4110.3-2(b) would be governed by
that section.
BLM did not adopt this suggestion. BLM does not believe that cross-
referencing section 4110.3-1 in section 4110.3-2(b) is needed to ensure
that it is understood that activation of
[[Page 39454]]
preference suspended under section 4110.3-2(b) is, in fact, governed by
section 4110.3-1.
One comment asked BLM to change the criteria that justifies a
reduction of active use as described in Sec. 4110.3-2(b) from ``when
monitoring or documented field observations show that grazing use or
patterns of use are inconsistent with subpart 4180, or that grazing use
is otherwise causing an unacceptable level or pattern of use, or that
use exceeds livestock carrying capacity,'' to ``when monitoring shows
that active use is inconsistent with objectives of the applicable land
use plan, activity plan, or decision, or shows that active use exceeds
the forage available on a sustained yield basis.'' This comment said
that this change would clarify that land use plans governed actions
that affected the amount of active use authorized.
We have not adopted the comment in the final rule. BLM believes
that these criteria are sufficiently clear to serve the purpose
intended by the regulation. These criteria allow for the effects of
grazing use to be measured against objectives tailored specifically to
a local area, such as a single stretch of a riparian area, or an
individual pasture, that may not be addressed in sufficient management
detail in a land use plan, activity plan, or decision of the authorized
officer. These local objectives would be consistent with the more
general management objectives typically found in land use plans and
activity plans. Moreover, section 4110.3(a) provides that BLM will
change grazing preference as needed to conform to land use plans or
activity plans.
Another comment stated that because grazing use or patterns of use
are by definition a part of monitoring, including them in Sec. 4110.3-
2(b) is redundant.
BLM acknowledges that use of pattern mapping and measurement of
utilization are a part of monitoring. The wording in the regulation,
however, is not redundant. The regulation requires that when this
information shows that grazing use levels or patterns of use are
unacceptable, BLM will reduce active use, otherwise modify management
practices, or both.
One comment stated that BLM should provide for payment to the
permittee or lessee for any cuts in permit numbers at the prevailing
appraised rate in order to curtail cutting permits under the pretense
of the ESA.
It is not clear from the comment why it concluded that BLM paying a
permittee or lessee for reductions in grazing use would curtail
reductions made as a result of compliance with the requirements of the
ESA. In any event, grazing permits and leases convey no right, title,
or interest held by the United States in any lands or resources.
Therefore, payment for reduced livestock use would be neither
appropriate nor legally supportable.
Finally, one comment stated that BLM should not reduce preference,
and suggested that individual monitoring would provide the information
needed to make grazing changes that would address management issues
without having to reduce preference.
We have not adopted the suggestion that BLM not be allowed to
reduce preference. This would unduly restrict the statutory authority
of the Secretary to manage grazing use on public lands. Depending on
circumstances, there are management solutions to grazing issues that do
not involve reducing preference. However, this is not always the case.
One comment urged that, in case of fires in allotments, the
allotment should be rested for a minimum of 3 years, and 5 years if any
BLM permittee has livestock on a burn area prior to approval, plus a
substantial reduction in their grazing permit.
The issue of how much rest from livestock grazing is needed after a
fire is a matter for internal guidance, and is outside the scope of
this rule. Furthermore, prescribing rest periods for lands through the
regulatory process does not allow site-specific analysis and
consideration of on-the-ground resource conditions and potential
impacts.
Section 4110.3-3 Implementing Changes in Active Use
In the proposed rule, we changed the title of this section to
reflect that it pertains to both increases and decreases in grazing
use. We also modified how BLM implements changes in active use. The
amended section provided that BLM will phase in changes in active use
of more than 10 per cent over a 5-year period unless the affected
grazer agrees to a shorter period or the changes must be made before
the end of 5 years to comply with relevant law. This 5-year phase in
period is similar to that in the pre-1995 regulations.
BLM also amended paragraphs (a) and (b) by removing the phrase
``the interested public.'' Changes in active use must be preceded by
reports, including NEPA documents, that analyze data BLM uses to
support the change. Under section 4130.3-1, BLM provides the interested
public the opportunity to comment on these reports. Under section
4160.1, BLM provides a copy of the proposed and final grazing decisions
to implement the change to the interested public. BLM will provide the
interested public full opportunity for participation and comment on the
action prior to actual implementation. For this reason additional
consultation with the interested public regarding the actual scheduling
of the change is redundant.
Under the final rule, changes in active use levels and emergency
closures made due to drought, fire, flood, insect infestation, or when
grazing poses an imminent threat to the resource, no longer trigger
required consultation, cooperation, and coordination with the
interested public. This change is intended to improve the
administrative efficiency of grazing management operations.
Many comments opposed any reduction in the role of the interested
public, but relatively few comments addressed these particular
functions. Some comments supporting the change noted active use changes
as an area where efficiency could be improved by removing the
interested public consultation requirement.
Note again that the role of the public under NEPA is unaffected by
this rule change. Additionally, members of the interested public will
have an opportunity to review and provide input on any reports used as
a basis for decisions on changes in grazing use. The interested public
will still receive the proposed and final decisions for changes in
active use, and they could protest the proposed decision if so desired.
In BLM's view, the NEPA process, informal consultations, the
opportunity to review and provide input on reports used as a basis for
decisions, and the ability to protest before a decision is final, all
are adequate mechanisms for identifying legitimate public concerns over
active use changes. No protest could be filed against an emergency
closure, which is issued as a final decision, but these decisions
require management flexibility to allow a quick response to changing
circumstances on the ground. These changes make the grazing program
similar to other BLM programs in the level of coordination required for
actions under various BLM permits and leases. Therefore, we have made
no changes in the final rule.
A number of comments supported the proposed provision in section
4110.3-3 for phasing in changes in active use greater than 10 percent
over 5 years. These comments stated that the provision would ensure
more orderly administration of grazing on BLM administered lands and
protect the resource better than the current regulations do. Others
agreed that it would improve the ability of local BLM
[[Page 39455]]
field managers to use the variety of rangeland management tools
available, including range improvements and changes in grazing
strategies, to accomplish resource objectives because of the additional
time allowed. Most of the supportive comments agreed that permittees
should be given the opportunity to make adjustments over a period of
time in order to incorporate the reductions into their entire
operation/business without unnecessary economic disruption.
Other comments opposed the provision allowing up to 5 years to
implement changes in active use greater than 10 percent. Some stated
that the provision is inconsistent with the regulatory objective: ``to
accelerate restoration and improvement of public rangelands to properly
functioning conditions.'' Others reasons given for opposing the
provision included concerns that it would allow unhealthy range
conditions to persist, delay range recovery, or lead to additional
range degradation, especially of riparian and wetland habitats. They
said the provision would have negative impacts on natural resources and
other uses of the land. Some of these comments stated that the
provision showed that BLM is more concerned with private financial
well-being of permittees than with managing publicly owned natural
resources in the public interest. One comment said that if the
condition of the natural resources on a grazing allotment is so bad
that a reduction in permitted livestock numbers in excess of 10 percent
is necessary, then the situation is probably so bad that delaying
implementation of the reductions would be tantamount to criminal
neglect. Others said that such delays would lead to continued petitions
for listing species under the ESA. One comment opposed this provision
because it would contradict the goal of increasing administrative
efficiency, negate the requirement for prompt action to address harmful
grazing practices, and limit the conditions under which BLM may revoke
a grazing permit. Others said that it would tend to weaken the ability
of the local BLM field offices to manage rangelands in a timely fashion
by adding considerable time before we can take action. Some comments
conceded that under some circumstances it may be possible to phase in
the needed changes in grazing over a 5-year period without compromising
long-term range sustainability, but stated that BLM range professionals
needed the ability to respond immediately and to the extent necessary
to avoid impacts on range condition or vegetation communities that may
take decades to reverse. Other comments expressed concern that the
proposed 5-year phase-in period may be inadequate to protect sensitive
species and their habitat. One comment requested clarification as to
whether the provision allow BLM to adjust livestock numbers over a
shorter period of time to protect wildlife and plants that are
candidates for listing as threatened or endangered or determined by BLM
to be sensitive, and whether the proposed rule was in compliance with
the requirements of the Endangered Species Act. (The sensitive species
designation is normally used for species that occur on BLM-administered
lands, and for which BLM can significantly affect their conservation
status through management. See BLM Manual 6840.06E (Release 6-121, 01/
19/01)).
We believe the final rule gives BLM sufficient discretion to handle
a wide range of circumstances. The rule does not change BLM's ability
to cancel a permit in whole or in part if necessary. The rule is
flexible enough to provide for immediate, full implementation of a
decision to adjust grazing use if continued grazing use poses an
imminent likelihood of significant soil, vegetation, or other resource
damage. The rule also allows BLM and the permittee to agree to a
shorter time frame for implementation. The rule allows BLM to initiate
necessary adjustments while giving the permittee an opportunity to make
changes in their overall business operation. The provision in the rule
allows us to begin reducing active use when necessary, while
considering the human aspect of the impacts of the reduction. Our
cooperative approach should lead to a decreased likelihood of appeal on
the part of the permittee or lessee. In turn, we expect this decreased
likelihood of appeal to result in implementing necessary grazing
reductions more quickly, thus allowing BLM to remedy resource problems
more efficiently. Recent experience (1998-2002) indicates that current
livestock grazing or level of use was a significant factor in not
meeting land health standards on only 16 percent of the allotments
evaluated, requiring adjustments in current livestock management. From
1998 to 2005, 15 percent of the evaluated allotments were determined to
be in this category. Most of these adjustments have been made in the
season of use, or movement and control of livestock, rather than in
levels of active use. An unknown, but likely small, portion of these
adjustments were changes of more than 10 percent in active use. Where
adjustments are needed to improve riparian or wetland condition, the
adjustments are rarely in active use, but are frequently adjustments in
season of use, or changes in length of time livestock are allowed
access to the riparian area (e.g., grazing might be changed from 6
weeks in the summer to 3 weeks in the spring). The rule contains an
exception, in section 4110.3-3(a)(ii), that allows changes in active
use in excess of 10 percent to be implemented in less than 5 years to
comply with applicable law, such as the Endangered Species Act. BLM
also has discretion under section 4110.3-3(b)(l)(i) and (ii) to
implement changes in active use immediately to handle a wide range of
circumstances. These circumstances may include fire, drought, the need
to protect soil, vegetation, or other resources, or if continued
grazing use poses an imminent likelihood of significant resource
damage.
BLM has the authority to implement grazing decisions immediately if
the authorized officer determines that soil, vegetation, or other
resources on the public lands require immediate protection because of
conditions such as drought, fire, flood, or insect infestation, or if
continued livestock grazing poses an imminent likelihood of significant
resource damage. BLM's responsibilities under the ESA and BLM special
status species policy are not affected by the final rule.
Several comments offered alternatives to the 10 percent threshold
and the 5 year implementation period. One comment proposed that the
threshold for changes that prompt a delay of 5 years in implementation
should be increased from 10 percent to at least 25 percent, reasoning
that small adjustments would result in ascertainable changes in
resource condition in a season or two. Another comment suggested that
the authorized officer implement changes in active use of 5 percent or
less in 1 year, 5 to 15 percent equally over 3 years, and in excess of
15 percent equally over 5 years. The comment stated that this
formulation would ensure equal, incremental decreases or increases in
active use over time, and accelerate decreases or increases in active
use when a relatively small change is made.
The 10 percent threshold and 5 year implementation period proved to
be a practical combination prior to being changed in the 1995 rules.
The lower threshold allows affected permittees to avoid rapid
adjustments in such significant numbers. However, the number of
permittees and allotments affected by this provision is not likely
[[Page 39456]]
to be large, given that over the last 5 years, most adjustments in
grazing management resulting from land health assessments have been
made in the season of use, or movement and control of livestock, rather
than in levels of active use. Again, recent experience (1998-2002)
indicates that current livestock grazing or level of use was a
significant factor in not meeting land health standards on only 16
percent of the allotments evaluated, requiring adjustments in current
livestock management. From 1998 to 2005, 15 percent of the evaluated
allotments were determined to be in this category. See Section 4.3.1 of
the EIS and page 33 of the EIS Addendum.
Comments expressed concern that annual conditions or fluctuations
in weather could require more than 10 percent reductions on an annual
basis, particularly in the arid southwest.
In practice, during prolonged drought conditions, ranchers
voluntarily reduce their livestock numbers because of the economics of
their industry. However, this section of the rules applies to
adjustments in the terms of the grazing permit, rather than in
temporary adjustments made on an annual basis. When temporary
adjustments need to be made because of annual conditions, BLM and the
permittee or lessee can respond by:
(1) Resorting to temporary changes in grazing use within the terms
and conditions of the permit or lease under section 4130.4(a);
(2) Electing temporary nonuse under section 4130.4(d);
(3) Decreasing active use through suspensions under section 4110.3-
2; or
(4) In more extreme cases of drought, fire, flood, or insect
infestation, closing or partially closing allotments under section
4110.3-3(b).
One comment stated that implementing stocking rate changes of more
than 10 percent over a 5-year period would only be significant for
large operators. For most small permit holders such changes would be a
nuisance and administrative burden for permit managers to implement
(citing an example of a 50 AUM permit). The comment stated that small
changes to existing permits should be implemented in 2 years or less,
since this would be more efficient for both permittee and public land
manager. For larger permits, the comment suggested that the phase-in of
changes should be dependent on situational conditions and their
relationship to the need for improving rangeland health and permittee
interests (up to 5 years).
The final rule is flexible enough to allow BLM and the permittee to
agree to a shorter time frame for implementation. The regulations allow
BLM to initiate necessary adjustments while giving permittees
opportunity to make changes in their overall business operations.
One comment pointed out that BLM has not reviewed many grazing
allotments for over a decade. The comment concluded that, considering
improvements in our knowledge of range science and of best management
practices for rangelands over the past 20 years, it is likely that
changes in active use in excess of 10 percent will be required on
numerous allotments.
BLM is evaluating current resource conditions in relation to land
health standards. By the end of 2003, we had evaluated 40 percent of
allotments, and plan to evaluate the remainder by the end of 2008. As
we stated earlier, based on results and changes made because of these
evaluations, most adjustments in grazing management are being made in
the season of use, or movement and control of livestock, rather than in
active use.
One comment cited situations when it would be desirable to increase
grazing in order to enhance habitat for ``federal trust species.'' The
comment also asked whether BLM needs permission from an allotment's
existing permittee before it could allow another grazing operator to
graze additional livestock on an allotment when desired to enhance
habitat for Federal trust species, and asked also whether such an
operator would need to meet mandatory qualifications.
It is advantageous at times to increase livestock numbers for weed
or vegetation management for purposes of enhancing habitat and reducing
brush cover for specific wildlife species (e.g., burrowing owl or
mountain plover). In these cases BLM has several options. The BLM would
first contact the existing permittee to discuss needs and options
feasible to the permittee. If the permittee is unable to increase
stocking numbers, BLM may advertise an available opportunity to
applicants qualified under section 4110.1, offer a free-use permit, or
contract to have vegetation reduced by goats, mechanical thinning, or
manual pulling and weeding.
One comment stated that slowing the response to unhealthy
rangelands seems to be inconsistent with the current Administration
policy of accelerating management responses to fire and the conditions
that lead to or exacerbate fires.
This comment is attempting to compare two situations that are not
comparable. Fires in the wrong locations threaten life and property,
and it is vital to accelerate management efforts to deal with these
threats. Rangeland degradation does not normally carry equivalent
threats. The regulations are flexible enough to allow accelerated
management to address range degradation that cannot wait for the phase-
in period provided in section 4110.3-3(a)(1). As stated earlier, the
rule at section 4110.3-3(b)(1)(i) allows BLM to remove or modify
livestock grazing when immediate protection is needed because of
conditions such as drought, fire, flood, or insect infestation. In
1994, BLM amended its grazing regulations to address the health of
public rangelands. These changes, including the standards and
guidelines for grazing administration, remain in the rule and continue
to contribute to improving the health of public rangelands. The changes
adopted in this final rule seek to refine, without altering the
fundamental structure of, the grazing regulations. In other words, we
are adjusting rather than conducting a major overhaul of the grazing
regulations.
One comment asked BLM to require that increases in active use be
implemented by decision, so that the action could be protested and
appealed, and to make it consistent with the requirement at section
4110.3-3(a)(2), which, the comment states, requires that decreases in
active use be implemented by decision. Another comment stated that BLM
should remove its authority at section 4110.3-3 to implement changes in
active use by decision, so that range improvements could be installed
in lieu of reducing active use.
This provision in section 4110.3-3 was not proposed for change in
the proposed rule. BLM believes that it is important to retain the
discretion to change preference by agreement or by decision, depending
on management circumstances that can vary greatly from instance to
instance, and not require the use of one method or the other. We would
use agreements in relatively simple management circumstances, such as
with the holder of a small allotment with relatively few management
issues. For example, an operator who agrees with the need for a change
in his forage allocation, and has no interested public, would be a
likely candidate for implementing a change in preference by agreement.
In contrast, decisions are more likely to be used in complex management
circumstances such as might be encountered, for example, when
addressing the needs of a large allotment that has several resource
issues, is permitted to several operators, and has several interested
publics, some of whom might dispute the need for, or
[[Page 39457]]
the appropriate level of, the preference change. Section 4110.3-3(a)(2)
does not require that decreases in active use be implemented by
decision. This section requires that when a reduction in permitted use
is implemented by decision, as opposed to by agreement, the decision
must first be issued as a proposed decision, except when immediate land
protection is needed because of circumstances such as drought, fire,
flood, or insect infestation, or when continued grazing use poses an
imminent likelihood of resource damage. There are times when the
installation of range improvements is an adequate substitute for
indefinite suspension of active use. For example, a new water
development may improve grazing distribution enough so that forage not
previously available becomes available for livestock use. However,
range improvements are not always the appropriate management response.
It is in the interest of sound management to provide BLM with the
flexibility to modify active use, or authorize range improvements,
depending on the circumstances.
One comment suggested rewriting sections 4110.3-2 and 4110.3-3 so
that they are clearer and don't cross-reference each other so much.
Each of the two sections specified in the comment contains one
cross-reference to the other section. We do not consider this an
unreasonable number of cross-references. We have reviewed the two
sections and do not see how they could be written more clearly and
still provide the information necessary.
One comment suggested making the 5-year phase in of changes in
active use greater than 10 percent discretionary with BLM, stating that
it would allow BLM to react in a timely manner if resource conditions
were in more immediate need of improvement, for whatever reason, and
result in greater benefits to wildlife.
The regulations, at section 4110.3-3, already allow BLM to act more
quickly to avoid significant resource damage by closing all or portions
of an allotment in the circumstances described in the comment.
One comment urged BLM to make adjustments when data indicates
livestock numbers are out of balance with the capacity of the land.
Estimates of stocking rates in plans do not necessarily reflect BLM's
willingness to reduce stocking levels. Another comment stated that
Federal rangeland health standards demand that the rule should focus
decisionmaking on management objectives stated in land use plans,
activity plans, and grazing decisions.
Stocking rates are best determined in the land use planning
process. However, as we stated earlier, the regulations contain
mechanisms for making changes in grazing use to avoid significant
resource damage. As provided in subpart 4180, we will use monitoring
and standards assessment to determine whether changes in management
practices are necessary.
Several comments suggested modifications of this section 4110.3-2
of the proposed rule. One was that BLM should consult with any base
property lienholder before closing allotments to grazing or modifying
grazing authorizations due to emergencies or when continued grazing use
will result in resource damage. Another was to include consultation
with county commissioners where downward adjustments in grazing use
levels are being planned, and that the reductions should be justified
by reasons that are documented in an allotment evaluation that is
conducted before the adjustments occur. A third suggested change was to
amend Sec. 4110.3-3(b)(1) and (b)(2) by replacing the term
``authorized grazing use'' with ``active use'' because there is no
definition of ``authorized grazing use'' in the regulations.
BLM is not changing the regulations in response to these comments.
BLM implements changes in active use by grazing decision or by
documented agreement. When changes are implemented by decision, our
regulations provide for sending such decisions to any lienholder of
record. If such lienholders requested ``interested public'' status,
they would also be able to provide input and comment on reports BLM
uses as a basis for making decisions to increase or decrease grazing
use. Given these opportunities for lienholder input to BLM's
decisionmaking process, there is no need for BLM to require itself to
consult specifically with lienholders before implementing changes in
active use. Further, in the pursuit of sound resource management, it
would be inappropriate to allow consideration of whether base property
is subject to a lien to affect or change a BLM decision to close
allotments to grazing or to modify grazing permits or leases due to
emergencies or when continued grazing use will result in resource
damage.
The state having lands or responsibility for managing resources in
the affected area may choose to include county commissioners' input as
part of the state's consultation with BLM. BLM may also consult
directly with county commissioners at its option. BLM believes that
these two avenues of consultation provide adequate opportunity for
county commissioners to make their views known to BLM regarding
management issues. BLM makes either downward adjustments in grazing use
levels temporarily in response to emergencies or indefinitely after it
has determined that livestock forage is insufficient on a sustained
yield basis to support grazing at levels that had been previously
authorized. In either case, the decision implementing the downward
adjustment provides the rationale for the action and is subject to
review upon appeal. In most cases of indefinite downward adjustments in
grazing use levels, such rationale relies upon analysis found in a
documented allotment evaluation.
Paragraphs 4110.3-3(b)(1) and (b)(2) allow BLM to modify authorized
grazing use in response to emergencies, including complete closure of
an area to grazing when necessary to provide immediate protection
because of conditions such as drought, fire, flood and insect
infestation. ``Active use'' refers to a number of AUMs of forage. The
term ``authorized grazing use'' is more expansive and refers to all the
terms and conditions of use authorized by a term permit or lease. These
terms and conditions include, at a minimum, the number of livestock
authorized, where they may graze, and the season of the year and period
that they may graze. Although BLM may modify ``active use'' in response
to emergency resource conditions, we may also modify the other
parameters of use (such as location, period, and season) in response to
these conditions.
One comment suggested removing the provision authorizing BLM to
close allotments to grazing or modify authorized grazing use when the
authorized officer determines that resources on public land require
immediate protection or continued grazing use poses an imminent
likelihood of significant resource damage (section 4110.3-3(b)(1)). The
comment stated that the provision is too vague and could be used as a
catch-all to eliminate grazing at any time.
We have not adopted this suggestion in the final rule. The phrase
``or where continued use poses an imminent likelihood of significant
resource damage'' is in fact a prerequisite that must occur or be found
to exist before BLM can take action. The phrase covers situations not
otherwise specified in the regulation (i.e. ``because of conditions
such as drought, fire, flood, or insect infestation''). It would be
impractical for BLM to list in the regulations all possible situations
where an immediate closure or modification of grazing may be needed.
All BLM decisions that close
[[Page 39458]]
or modify grazing use are supported by rationale stated in the
decision, and decisions may be appealed under subpart 4160 and part 4.
One comment stated that, because of the problems associated with
recurrent long term drought, the regulations should require that base
property provide forage or other means of sustaining livestock should
the necessity arise to remove livestock from the public lands.
Furthermore, the comment went on, the base property should be real fee
property of the permittee or lessee and not leased property from a
state or other private property owner.
In areas where land serves as base property, BLM specifies the
length of time that the property must be capable of supporting
authorized livestock during the year (see section 4110.2-1(b)), thus
including the concept that the base could be used to sustain the
livestock should the necessity arise to remove them from public lands.
This ``base property requirement'' differs depending on the BLM
jurisdiction, but generally ranges from 2 to 5 months. In the desert
southwest, where water or water rights can serve as base property, BLM
can close allotments or portions of allotments to grazing use
immediately to protect resources because of conditions such as drought.
BLM sees no need to require that base property must not be leased
property.
One comment identified an incorrect reference to 43 CFR 4.21 in
4110.3-3(b)(2). A stay relative to grazing is granted in accordance
with 43 CFR 4.472.
The final rule contains the correction.
Section 4110.4-2 Decrease in Land Acreage
In the proposed rule, we removed the term ``permitted use'' from
this section and replaced it with the term ``grazing preference'' for
the reasons explained previously. No public comments addressed this
specific change, and we have made no further changes in the final rule
as to this aspect of the proposed rule.
Several comments raised issues that are tied to this provision. One
comment suggested that BLM should be able to designate lands as not
available for grazing when this is needed to protect critical or
sensitive areas. Another comment stated that BLM should develop
regulations providing: (a) For the retirement or non-use of grazing
permits by conservation organizations; (b) that a voluntary permit
relinquishment automatically triggers the immediate permanent closure
an allotment to livestock grazing when that closure would benefit
conservation purposes; and (c) that at the request of the permittee,
BLM will promptly initiate a planning process to determine whether the
applicable land-use plan should be amended to provide that all or a
portion of an allotment will be made unavailable for grazing authorized
by FLPMA and PRIA. The comment stated that ``voluntary retirement'' of
grazing permits is sometimes the fastest, simplest, most effective, and
most amicable method of resolving disputes over livestock grazing in
environmentally-sensitive areas.
FLPMA directs BLM to develop and maintain land use plans to provide
for multiple use of the public lands, including livestock grazing use.
Land use plans, which are developed at the local office level with the
involvement of the general public, identify lands available and not
available for livestock use and management. In some land use plans, BLM
can and does designate lands as not available for grazing, and assigns
them to other uses. This results in reductions in land acreage
available for grazing, and BLM acts under section 4110.4-2 to implement
the reductions by canceling grazing preference.
BLM amends or revises land use plans under the planning regulations
(43 CFR part 1600) and the BLM land use planning handbook. An agreement
on voluntary relinquishment of a grazing permit (and preference) for
purposes of furthering a proposal to amend a land use plan to provide
for the retirement of an area from livestock grazing is not a permanent
contractual relationship between the entity relinquishing the permit
and BLM. Even if BLM amends the land use plan and effectively retires
the area from grazing for the immediate or foreseeable future, this
action can be amended or reversed under subsequent BLM planning and
decision processes.
One comment stated that, in addition to the permittee or lessee,
BLM also should give 2-year notification to any base property lien
holder before canceling a permit or lease when the lands under the
permit or lease will be devoted to a public purpose that precludes
livestock grazing as stated in 4110.4-2(b) because this will ``level
the playing field.''
This suggestion is consistent with existing BLM policy to provide
as a courtesy, upon request, notification to known base property lien
holders of actions that may affect the value of that property. BLM does
not believe, however, that it should require itself by regulation to
provide lienholder notice in this circumstance. Lenders normally
include provisions in their contracts with the borrower requiring the
borrower to notify them of actions that will affect the value of their
collateral.
Subpart 4120--Grazing Management
Section 4120.2 Allotment Management Plans and Resource Activity Plans
We amended paragraph (c) of this section in the proposed rule to
state BLM's internal procedural requirement more straightforwardly. The
current rule provides that the decision document following the
environmental analysis supporting proposed plans affecting the
administration of grazing is considered a proposed decision for
purposes of subpart 4160. This implies, but does not specify, that we
must issue such decision documents following the procedures of section
4160.1 on proposed decisions. The final rule merely makes it clear that
we issue these decisions in accordance with the procedures in section
4160.1.
No public comments addressed the changes in this section, and we
have made no changes in the final rule.
Section 4120.3-1 Conditions for Range Improvements
In the proposed rule we revised paragraph (f) for clarity and to
correct a citation to NEPA. No public comments addressed this section,
and we have made no changes in the final rule.
Section 4120.3-2 Cooperative Range Improvement Agreements
In the proposed rule we amended paragraph (b) to provide that,
subject to valid existing rights, cooperators and the United States
would prospectively share title to permanent structural range
improvements constructed under cooperative range improvement agreements
on public lands. Such structural improvements include wells, pipelines,
and fences constructed on BLM-managed public lands. BLM and cooperators
will share title to range improvements of public lands in proportion to
the value of their contributed labor, material, or equipment to make
on-the-ground structural improvements, subject to valid existing
rights. This returns the provision on how title for improvements
constructed under Cooperative Range Improvement Agreements is shared to
the regulation in place before 1995. The current regulations provide
that the United States has title to new permanent structural range
improvements.
Numerous comments opposed the change in section 4120.3-2 providing
for shared title to permanent range improvements by BLM and the
cooperators. One frequently expressed
[[Page 39459]]
concern was that a shared title creates potential ``takings'' issues if
the need to change from grazing to some other land use in an allotment
arises in the future. Comments asserted that a permittee or lessee with
shared title to a permanent structure on public land would demand
compensation for the lost value of his or her property if BLM proposed
changes in the land use that would reduce or discontinue grazing in an
allotment. Comments also stated that BLM would lack the funds needed to
compensate the permittee, and would be unable to take the management
actions needed to sustain rangeland health. Some comments stated that
the provision for the United States to hold title to range improvement
structures on public land was consistent with the TGA. One comment
stated that sharing title to range improvements may make it more
difficult to impose restrictions or modify grazing management because
of these issues regarding regulatory takings and access to private
property. A similar comment asserted that allowing shared title to
range improvements gives away some of the public rights on public
lands, making it more difficult for the public to redirect or
reallocate the use of public lands as priorities change. The comment
stated that public rights should not be ``given away'' and that they
would have to be purchased back at a later date as circumstances
change. Another comment questioned whether future rights or privileges
to access ``titled'' range improvements will be conveyed to those
holding the title that would not be extended to the general public. The
comment requested that we clarify whether any priority would be
conveyed to the ``titled'' holder for any land leases.
BLM is choosing to share title to range improvement projects
constructed in the future under Cooperative Range Improvement
Agreements to encourage greater private investment in range
improvements. This is not inconsistent with the TGA. Under the final
rule, permanent structural range improvements will be jointly owned by
the United States and permittees in proportion to their respective
investments. The final rule provides operators an opportunity to
maintain some asset value for their investments in range improvements,
and thereby encourages private investments in them. However, an
operator's interest in a permanent structural range improvement would
not reduce BLM's ability to manage or obtain access to public lands.
Sections 4120.3-1(e) and 4120.3-2(d), which are not changed in the
final rule, provide that a cooperative range improvement agreement
conveys no right, title, or interest in any lands or resources held by
the United States, and does not confer upon a cooperator or permittee
the exclusive right to use a range improvement or the affected public
lands. Under these provisions, cooperative range improvement agreements
would continue to include provisions that protect the interests of the
United States in its lands and resources, and ensure BLM's management
flexibility on public lands.
Title to range improvements has no bearing on whether or to what
extent BLM will allow access. Individuals would still have to seek
authorization for access to maintain range improvements, whether they
hold title to them or not. BLM gives no special privileges to
``titled'' holders of range improvements.
BLM disagrees that a joint title to range improvements creates
``takings'' issues. The full extent to which permittees and lessees may
be eligible for compensation is spelled out in the existing
regulations. The existing regulations already assure that permittees
and lessees are appropriately compensated for their investment in range
improvements that can no longer be used because of government action.
Section 4120.3-6(c) provides that ``whenever a grazing permit or lease
is canceled in order to devote the public lands covered by the permit
or lease to another public purpose, including disposal, the permittee
or lessee shall receive from the United States reasonable compensation
for the adjusted value of their interest in authorized permanent
improvements placed or constructed by the permittee or lessee on the
public lands covered by the permit or lease.'' The final rule does not
change this requirement for compensation. The regulations do not
address compensation for other types of cancellations. For example,
there is no provision addressing compensation where permits are
canceled for noncompliance. In another example, if a permittee or
lessee voluntarily sells his property and interest, he may negotiate
compensation with the new owner for the permittee's share of a range
improvement title. However, BLM would not be a party to that
transaction, except to decline to approve the transfer of the
preference in the event that the new owner has not agreed to compensate
the transferor, as described in section 4120.3-5.
Some comments concluded that the change in section 4120.3-2 gives
permittees and lessees exclusive title to new range improvements. Other
comments opposed the change because, they asserted, it could create an
interest in the land prohibited by the TGA. A related concern expressed
by comments was that BLM would be unable to take the management actions
needed to sustain rangeland health when range improvements were owned
by permittees, and that BLM's authority to manage its grazing
allotments would be limited. One comment took the opposite view that
the change in the rules was not necessary, because the ranchers already
have property rights on public lands.
The rule change does not create an exclusive right, title, or
interest in the public land, which is prohibited by the TGA. Section
4120.3-2(b) specifically states that shared title to range improvements
is ``[s]ubject to valid and existing rights.'' The regulations are
equally clear on the creation or the existence of an interest in the
land prohibited by the TGA. Holding a joint title to an improvement
does not create a permittee interest in the public land, and will not
limit BLM's ability to manage grazing allotments. Section 4120.3-1(e)
states, ``A range improvement permit or cooperative range improvement
agreement does not convey to the permittee or cooperator any right,
title, or interest in any lands or resources held by the United
States.'' Since the United States retains ownership of the land, and
shares ownership of the improvements, BLM management actions would not
be constrained by a permittee's interest in a range improvement.
One comment asked whether BLM would have independent authority to
remove, replace, or modify a structure, or if the cooperator's
permission would be required. Another comment expressed concern that
``sharing of titles on permanent structures'' may limit BLM's ability
to implement effective conservation measures for sage-grouse, or to
remove or modify structures, which may be negatively affecting sage-
grouse.
Cooperative range improvement agreements (which allow installation
of permanent structural range improvements) include provisions that
protect the interest of the United States and its lands and resources.
These provisions make it clear that the ownership of improvements does
not confer exclusive right to the permittee or cooperator to use the
improvement or the land affected by the range improvement work. Section
4120.3-1(a) provides that range improvements are to be installed, used,
maintained, and/or modified or removed in a manner consistent with
multiple use management. BLM retains authority to
[[Page 39460]]
specify the design, construction, and maintenance criteria for the
range improvement, and may require permittees or lessees to remove
range improvements if they no longer help achieve land use plan or
allotment goals and objectives.
Joint title to permanent range improvements will not limit BLM's
ability to take measures to protect sage-grouse. The Memorandum of
Understanding (MOU) the BLM, Forest Service, and FWS signed with the
Western Association of Fish and Wildlife Agencies (WAFWA) to conserve
the greater sage-grouse and its habitat states our commitment to
protect sage-grouse.
Several comments noted that the changes would be inconsistent with
common law or Forest Service regulations.
Nothing in the TGA ``denies the Secretary authority reasonably to
decide when or whether to grant title to those who make improvements.''
Public Lands Council v. Babbitt, 529 U.S. at 750. While we draw
parallels between Federal and common law rules in explaining the
rationale for existing section 4120.3-2, and note that the Forest
Service had a similar policy, BLM is not obligated to accept common law
rules or Forest Service statutes or policies in setting the terms for
ownership of range improvements on public lands.
One comment objected to joint title to range improvements because
it would increase BLM's administrative burden.
BLM disagrees that the proposed change will increase our
administrative costs. BLM is currently obligated to record and track
the value of contributions that cooperators provide for range
improvements, including the imputed value of their labor. This is
necessary under the current rules to meet our requirement that we
reasonably compensate a cooperator if the permit or lease is canceled
to devote public lands to another use or for other purposes. Thus, our
administrative responsibilities will exist whether BLM shares the title
to the improvement, or holds it solely in the name of the United
States. Consequently, the shared title does not result in an additional
administrative burden.
One comment expressed concern about how joint title would affect
Tribal consultation, cooperation, and coordination requirements and
whether BLM is abdicating control of these responsibilities.
BLM is responsible for consultation with the Tribes and will ensure
that the required consultation occurs for all appropriate activities on
public land. BLM does not believe that shared title with a cooperator
for a range improvement is mutually exclusive with consultation. We
again refer to section 4120.3-1(e), which states that establishing a
range improvement does not convey any right, title, or interest in any
lands or resources held by the United States. Under the final rule, BLM
retains control of when and where improvements are installed, and other
terms and conditions of the development (section 4120.3-1). Also, the
cooperators' title and interest are limited to the proportion of
structural improvements in which they invested. Considering these
factors, cooperative range improvements should have no effect on Tribal
consultations, BLM control of the land, or any Indian trust
responsibilities.
Several comments observed that evidence is absent or inconclusive
that joint ownership of title to improvements encourages permittees to
invest in further improvements, thereby improving range conditions, or
increases the permittee's ability to secure a loan.
State-by-state data on range improvements is shown in the EIS in
Table 3.4.3.1. It is clear from the data that the number of new range
improvements has declined since 1995 when the rule was last changed.
The number has declined in every state with grazing on public land. The
average decline is 38 percent. From 1982 to 1994, BLM authorized an
average of 1,945 range improvements per year. From 1995 to 2002, we
authorized an average of 1,210 per year. Several factors may be
contributing, but it is reasonable to conclude that some of that
decline may have been the result of the 1995 rule change. It is logical
to assume that sharing title among cooperators and the United States
provides the opportunity to maintain some asset value for investments
made, thereby encouraging and facilitating private investment in range
improvements. A permittee's or lessee's belief that sharing the title
to improvements in which he invests contributes to stable ranch
operations is also significant. Shared title to range improvements also
provides an opportunity for permittees and lessees to document
investment in their business enterprises, which is useful for securing
business capital and demonstrating value of their overall private and
public lands operations. Permittees and lessees perceive this
recognition of investment as crucial to their business and, therefore,
as an important factor when considering personal investment in range
improvements. Beyond ranch economics, range improvements are tools for
improving range conditions. Those benefits accrue to both public and
private land and resource managers. BLM may enter into a cooperative
range improvement agreement with any person, organization, or other
government entity to develop range improvements. The shared title to
such improvements is expected to serve as an incentive for all
potential cooperators to participate and partner with BLM in the
development of range improvements to assist in meeting management or
resource condition objectives.
Other comments were concerned that the impacts of shared title were
not sufficiently analyzed, including the impact of increased wildlife
use as range condition improves.
BLM analyzes the anticipated impacts of shared title in the FEIS on
pages 4-25, 4-31, 4-42, and 4-48. To the extent that shared title
provisions will stimulate investment in range improvements intended to
improve or enhance grazing management practices, or the quantity and
quality of forage, BLM expects that such actions will result in
improved habitat for wildlife. BLM considers improvement in wildlife
habitat that may result from range improvements, and subsequent upward
trend of overall watershed condition, to be benefits of the final rule.
However, the nature of the regulatory change does not lend itself to
broad analysis of the topic raised by comment. Anticipated impacts that
may result from increased wildlife use because of improvements,
regardless of whether they are constructed as a result of the shared
title provision, will be analyzed under NEPA on site-specific basis as
part of the preliminary work that precedes the construction of any
range improvement.
Some comments questioned the fairness of sharing title to
improvements with permittees and lessees. They regarded the assignment
of shared title as preferential treatment that is undeserved when terms
and conditions of permits or leases are violated. One comment
disapproved of shared ownership of improvements because they would be a
constraint on other permittees or lessees in a common allotment.
BLM's commitment to fairness is an important aspect of the joint
title to range improvements. A permittee's or lessee's share of the
title to a development in which he or she invests has no effect on
BLM's administration of terms and conditions of the grazing permit or
lease. Under section 4120.3-6(c), permittees and lessees are only
compensated for the adjusted value of their interest in range
improvements in
[[Page 39461]]
the event the permit or lease must be canceled to allow the land to be
devoted to another purpose. There is no compensation if there is no
remaining value of their interest in the improvement. BLM believes this
is an equitable approach. If a permittee or lessee loses his grazing
preference due to noncompliance with the permit or lease, there is no
compensation for range improvements that remain on the allotment.
However, he or she would be given the opportunity to remove
improvements unneeded by BLM. The former permittee or lessee would also
be responsible for restoration of the improvement site.
Regarding common allotments, planning and implementation of range
improvements on common allotments is an inclusive process involving all
permittees or lessees authorized to graze in the allotment. As provided
in section 4120.3-2(a), BLM enters into cooperative range improvement
agreements to achieve management or resource condition objectives and
does so through a collaborative process.
One comment suggested that all range improvements, not just
permanent improvements, should be eligible for shared title based on
contributions of the cooperator.
BLM currently allows title to temporary, removable range
improvements installed under range improvement permits to be held by
the permittee or lessee (section 4120.3-3). If the comment was
suggesting that BLM should share title to non-structural improvements
that cannot reasonably be removed from the land, such as a seeding or a
prescribed fire treatment, BLM rejects this suggestion because it is
impractical and would unduly complicate land administration. Where a
cooperator permittee or lessee has contributed to an improvement that
cannot be removed from the land, and BLM cancels the associated grazing
permit or lease to devote the land to another public purpose that
precludes livestock grazing, the permittee will be eligible for
compensation for the adjusted value of their interest in the
improvement, as documented in a cooperative agreement, under section
4120.3-6(c) and Sec. 402(g) of FLPMA (43 U.S.C. 1752(g)). BLM will
continue to hold 100 percent of the title to range improvements that
cannot be removed from the land.
One comment expressed concern about who would be liable if a public
land user was injured in connection with a privately owned improvement.
Based on our previous experience with joint Federal-private
ownership, we do not recognize any liability issues that should be
addressed in this rulemaking. Issues of liability generally are fact-
specific, and are best resolved on a case-by-case basis. Moreover,
cooperative range improvement agreements will continue to include
provisions that protect the interests of the United States in its lands
and resources.
One comment asked that we clarify agency and permittee
responsibilities under the Endangered Species Act (ESA) and NEPA for
shared range improvements. Another comment stated that if grazing
permittees share title to range improvements, they may be accountable
for any taking under ESA that occurs as a result of these improvements.
Another comment stated BLM should consider and allow modification of
range improvements if they are negatively affecting sensitive species.
In addition, this comment stated that modification may be necessary to
minimize the effects and ``avoid jeopardy to listed species.'' One
comment stated that, at a minimum, the rule should make it clear that
ESA section 7 consultation requirements and consideration of state-
listed or sensitive species would still be applicable to grazing
activities.
Additional clarification is not needed to set forth BLM's
responsibility to consult with the appropriate service agency pursuant
to the ESA when a discretionary BLM action triggers the application of
the ESA. BLM will continue to fulfill the requirements for consultation
in accordance with Section 7 of the ESA. Section 4120.3-1(f) provides,
and will continue to provide, that ``proposed range improvement
projects shall be reviewed in accordance with the requirements of
[NEPA].'' The fact that a permittee holds a joint title with BLM for a
range improvement has no effect on BLM's obligations under the ESA and
NEPA.
As part of NEPA analysis and the decision making process, BLM
considers potential impacts of the range improvements to special status
species (including listed species) and either avoids or mitigates them.
Listed species are protected by the ESA. Therefore, BLM is obligated to
make modifications as necessary to avoid jeopardy or to minimize
incidental take as directed by the FWS or the National Marine Fisheries
Service in a biological opinion.
BLM expects individuals to take steps to ensure they are in
compliance with the appropriate provisions of ESA. It is a prohibited
act under section 4140.1(b)(2) for any person to install, use,
maintain, modify, or remove range improvements on public lands without
BLM authorization. If any person did such an act without BLM
authorization and thereby violated the ESA, he or she would be liable
for the applicable penalties for violations of the grazing regulations
as well as those for any violation of the ESA.
An additional comment suggested that BLM should retroactively
provide for shared title to range improvements constructed under
cooperative range improvement agreements after the 1995 rules changes
took effect.
The Department has declined to make the proposed change retroactive
to 1995, since such retroactive changes have been discouraged by the
Supreme Court (Bowen v. Georgetown University Hospital, 488 U.S. 204
(1988)).
Section 4120.3-3 Range Improvement Permits
We modified paragraph (c) in this section of the proposed rule to
remove a reference to conservation use.
We received two comments recommending that BLM authorize permanent
range improvements under range improvement permits, noting that such
permits are allowed under Section 4 of the TGA.
Under Section 4 of TGA (43 U.S.C. 315), the Secretary has the
authority to determine whether to issue permanent range improvements
under range improvement permits or under cooperative range improvement
agreements. BLM believes it is in the best interests of the public to
authorize all permanent developments such as spring developments,
wells, reservoirs, stock tanks, and pipelines under cooperative range
improvement agreements to promote achievement of management and
resource objectives. We have not adopted this recommendation in the
final rule.
We received an additional comment suggesting that BLM consult with
all permittees associated with an allotment prior to approving
nonrenewable use, and require cooperation from all permittees or
lessees with the temporary operator.
Under section 4130.6-2, which addresses nonrenewable grazing
permits and leases, BLM is required to consult, cooperate, and
coordinate with all affected permittees or lessees, as well as the
state having lands or responsibility for managing resources within in
the area, before issuing a nonrenewable grazing permit or lease. If BLM
issues such a nonrenewable permit or lease, the preference permittee or
lessee shall cooperate with the temporary authorized use of forage by
another operator. BLM agrees that all preference permittees or lessees
in an allotment
[[Page 39462]]
with temporary use authorized should be consulted and should cooperate.
Therefore, we have amended section 4120.3-3(c) in the final rule by
adding a cross-reference to the section 4130.6-2 requirement.
One comment urged that we revise section 4120.3-3(c) to remove any
reference to the permittee or lessee cooperating with a temporary
authorized use of forage by another operator, stating that BLM should
not have the discretion to allow someone other than an allotment's
preference holder to graze in an allotment. Doing so, according to the
comment, could cause conflict among BLM, the preference holder, and the
temporary grazers.
BLM needs the discretion to authorize grazing use on public lands
when forage is available. We realize that there is potential for
conflict, as the comment describes. In the final rule, we have
rewritten Sec. 4120.3-3(c) to make it clear that BLM will consult with
the preference operator before authorizing such use.
Section 4120.3-8 Range Improvement Fund
We amended this section only to correct a misspelling. One comment
objected to the correction, but provided no reason. We have made no
changes in the final rule.
Section 4120.3-9 Water Rights for the Purpose of Livestock Grazing on
Public Lands
We proposed to amend this section by removing the requirement that
livestock water rights be acquired, perfected, maintained, and
administered in the name of the United States to the extent allowed by
the laws of the states where the rights would be acquired. We made this
change to provide BLM greater flexibility in negotiating arrangements,
within the scope of state processes, for construction of watering
facilities in states where the United States is allowed to hold a
livestock water right. BLM continues to have the ability to acquire the
water right to the extent allowed by state water law.
We received many comments objecting to the change in the water
rights provision. Most common were the general concerns that the
proposed change communicated less commitment by the United States to
hold the water rights on public land, which would result in more water
rights in the name of permittees or others, complicating multiple use
land management in a variety of ways. The identified complications
included clouding title, hindering land exchanges and transfers of
preference, encouraging takings claims by privatizing public resources,
and devaluing public land. The over-riding concern of these comments
was the supposed rejection by the proposed rule change of the
fundamental connection of water to the land.
We believe that the predicted complications that may be triggered
by removing the requirement that water rights for livestock use be held
in the name of the United States have a low probability of occurring.
First, an increase in the number of water rights for livestock use on
public lands held in the name of permittees or lessees is probable, but
we believe it unlikely to compromise our ability to manage public lands
effectively in accordance with FLPMA's requirement of multiple use
management. Use of water on public land for wildlife, recreation,
mining, and other uses will continue with rights for those uses usually
in the name of the United States. By removing the requirement that
water rights be acquired, perfected, maintained, and administered in
the name of the United States, BLM may be in a position to negotiate
better cooperative agreements, resulting in improved cooperation
between BLM, states, and permittees and lessees. Second, ownership of
water rights by permittees will have no effect on title to the land,
since land remains in the ownership of the United States (section
4120.3-1(e)). Third, complications in exchanges or preference transfers
resulting from permittee ownership of water rights for livestock use
could occur, although we do not expect them to be common. When they
occur, they can often be resolved through negotiated settlements among
all parties. Moreover, in most cases, BLM will not exchange or dispose
of large tracts of the public lands; thus, private party ownership of
water rights on these lands will have little impact. In addition, a
transfer of preference would likely involve a transfer or sale of a
permittee's base property or base water to a new permittee. A
settlement would have to be reached between transferor and transferee
on compensation for range improvements and water rights. BLM does not
believe that the necessity for this type of agreement will hinder
transfer. We disagree that private ownership of water rights on public
lands will lead to successful takings claims. A water right is a
property right that is distinct from title to the land managed by BLM.
Land management decisions do not affect title to water. Finally, we
disagree with the comment that the value of public land may be reduced
if BLM does not control the water rights. The value of the land and the
water right are two separate things. BLM also believes, however, that
any such decrease will not affect our ability to manage the public
lands.
Several comments anticipated a loss of incentive to comply with
grazing rules or consult and cooperate with BLM by permittees who own
the livestock water rights.
We disagree that this is likely to occur. Many water rights are
currently held by permittees, or jointly owned with BLM, and we have
not seen evidence that holding a water right discourages cooperation or
compliance with terms and conditions of grazing permits. BLM's
authority to take action under subparts 4140, 4150, and 4160 is not
affected by the name in which the water right is held.
Two comments observed that the proposed rule was inconsistent with
laws governing water rights ownership on most state land, on land
managed by the U.S. Forest Service, and on privately owned land.
BLM agrees that there is inconsistency among the laws and policies
governing water rights ownership in states and agencies throughout the
country. For example, the BLM grazing program is guided by different
laws, regulations, and policies than the Forest Service's program.
Further, states assign water rights under different state laws,
regulations, and policies. In this patchwork regulatory setting the
flexibility afforded by the proposed rule will benefit BLM in
cooperating with permittees and states. We believe that any
inconsistencies are unlikely to interfere with BLM land management.
Several comments questioned why permittees had any need for a water
right that was associated with a water development. One asked why water
right ownership would affect a permittee, as long as he had the water
needed for his operation. Another said that water right ownership by
the permittee was unnecessary now that the permittee has title of the
water development. Another stated that the water right should be
public, if BLM was investing public funds in the developments.
Although many water rights for livestock use are associated with
water developments, it is not always the case. Moreover, water rights
are separate and distinct from water developments. The water right
provides for appropriation of water for a specified beneficial use for
a specified season of use according to the applicable state law. A
cooperative range improvement agreement authorizes the development of
and provides the terms, specifications, and
[[Page 39463]]
conditions for the construction, maintenance, or abandonment of a water
development or other range improvements. The permittee or lessee and
BLM share the cost of and title to the development; not all the funds
used for a water development are public. Moreover, BLM does benefit
from water developments, regardless of funding, because water
developments improve grazing management and watershed conditions.
One comment urged BLM not to implement the proposed change because
it would encourage more livestock water developments to the detriment
of wildlife.
Ownership of water rights does not affect the approval of water
developments. Further, BLM disagrees that encouraging more livestock
water developments would harm wildlife. Water developments are
constructed to improve grazing management and watershed condition.
Before BLM authorizes a water development, the development is analyzed
in accordance with NEPA. Such analysis will consider the development's
impacts on wildlife, positive as well as negative, and the ultimate
authorization would include the mitigation measures necessary to limit
any negative impacts.
Several comments stated that BLM should not acquire or retain water
rights for livestock use on public lands.
BLM disagrees with this statement as contrary to current and
proposed regulations, and contrary to the intent of most state water
laws to put water to beneficial use by the senior appropriator and
claimant. Neither the current regulations nor this final rule prevents
BLM from filing on water rights now or prospectively, or filing jointly
with a permittee or lessee, when it is in the interest of good
rangeland management, supports meeting the objectives of BLM land use
and activity plans, and is in accordance with state law.
One comment stated that the changes made in the BLM grazing
regulations in 1995 that require livestock operators and BLM to use
cooperative agreements to authorize new permanent water developments
and direct the United States, if allowed by State water laws, to
acquire livestock water rights on public lands, should be retained in
the grazing rule.
The final rule requires BLM to use cooperative range improvement
agreements to authorize all new permanent water developments under
section 4120.3-2(b). The intent of the rule is to provide greater
flexibility to the United States in this regard.
One comment recommended that BLM better explain its need to pursue
water rights cooperatively with the permittee.
Under the current grazing regulations, BLM must seek to acquire,
perfect, maintain, and administer state-based livestock water rights in
the name of the United States, to the extent allowed by state law. BLM
therefore has little flexibility to seek alternative arrangements with
permittees. We expect that the increased flexibility allowing
cooperative pursuit of livestock water rights to stimulate greater
permittee and lessee support for the development of additional water
resources on public land in accordance with resource objectives found
in BLM land use plans, allotment management plans, activity plans, and
vegetation management plans. This will contribute to an overall
beneficial effect on vegetation resources. Having determined that
permittees and lessees can hold livestock water rights, BLM may be able
to negotiate better cooperative agreements, resulting in improved
cooperation among BLM, states, and permittees and lessees.
One comment recommended that BLM discuss the environmental
consequences to sensitive wildlife and plants if BLM were to retain the
existing provision on water rights, that is, solely acquire livestock
water rights from the state, without cooperatively sharing that right
with a permittee or lessee.
BLM has observed a significant decrease in the number of water-
related range improvements (especially reservoirs and wells) since
adopting the existing regulations in 1995. It is widely recognized that
water-related range improvements may be beneficial to sensitive
wildlife and plants. One reason BLM is proposing to change the existing
regulations is to provide an incentive for operators to install water-
related range improvements, and thereby potentially benefit sensitive
wildlife and plants.
Another comment stated that it is unclear whether BLM's ability to
make changes in livestock management to protect sensitive wildlife,
plants, and their habitat will be affected by the permittee or lessee
having shared water rights.
BLM's ability to make changes in livestock management to protect
sensitive wildlife, plants, or their habitat will not be affected by
permittee or lessee sharing ownership of livestock water rights. The
current grazing regulations, at section 4130.3-3, provide BLM with
authority to make changes to the terms and conditions of a grazing
permit or lease when management objectives are not being met or when
grazing does not conform to the provisions of subpart 4180
(Fundamentals of Rangeland Health and Standards and Guidelines). This
provision is not changed in the final rule. Permittee or lessee
ownership of livestock water rights does not affect BLM's management
discretion and authority.
Many livestock water rights are currently held by permittees or
lessees, or jointly owned with BLM. BLM has seen no evidence that
holding a livestock water right discourages cooperation or compliance
with the terms and conditions of grazing permits. Nor is there evidence
that BLM's ability to enforce and administer other provisions of the
grazing regulations is affected by a permittee or lessee holding a
livestock water right.
One comment recommended that BLM clarify its ability to control
water at a spring if the water rights are shared with a permittee or
lessee.
Shared livestock water rights are not expected to impair BLM's
ability to control water at a spring. In cases of jointly held water
rights, water cannot be moved from the source without the consent of
both owners, and neither owner can prevent usage of the water at its
source by the other owner.
Two similar comments stated it is extremely important for BLM to
seek ownership of water rights where allowed by state law, and that if
BLM authorizes a water development on public land, the associated water
rights should belong to the public. One of the commenters stated that
there is no more important resource for fish and wildlife in the arid
west than water. A third comment expressed a variation of this concern.
The BLM agrees that water is an important resource for fish and
wildlife in the West. The proposed rule does not mean BLM will not seek
ownership of livestock water rights when allowed by state law. Rather,
the proposed revision will allow BLM increased flexibility to seek
alternative approaches to ensuring that water developed on public lands
can be used to benefit multiple uses, including wildlife uses. Use of
water on public land for wildlife, recreation, mining, and other uses
will continue with rights for those uses usually in the name of the
United States.
A comment asserted the need for BLM to have flexibility in
cooperatively pursuing water rights with the permittee or lessee. The
comment stated that we should make it clear whether under a cooperative
water right BLM would have the senior water right.
The increased flexibility provided by the final rule may stimulate
greater permittee and lessee support for the
[[Page 39464]]
development of additional water resources on public land. These
resources would be developed in accordance with resource objectives
found in BLM land use plans, allotment management plans, activity
plans, and vegetation management plans, contributing to an overall
beneficial effect on vegetation resources. Agreeing that permittees and
lessees can hold livestock water rights should enable us to negotiate
better cooperative agreements, and in turn leading to improved
cooperation between BLM, states, permittees, and lessees.
Whether the United States holds a senior livestock water right in
joint-ownership situations would depend upon individual circumstances
and priority dates under applicable state water law. BLM's ability to
negotiate the terms of joint ownership agreements with permittees is
critical in being able to achieve acceptable settlement to avoid
litigation of water rights and to enhance accomplishment of federal
responsibilities in land management.
One comment asked whether removing the provision that BLM can
acquire livestock water rights would put the state in a position where
it could prevent BLM from holding livestock water rights. The comment
also asked whether this revised provision pertains only to livestock
waters, or also to BLM filings for wildlife, fish, or instream flow.
States control their water law procedures for granting,
adjudicating, and administering livestock water rights, independent of
the content of the Federal grazing regulations. Therefore, regardless
of whether the existing regulations remain in place or whether the
proposed rule is adopted, states may prevent BLM from holding livestock
water rights. In fact, after 1995, when the grazing regulations were
changed to require the United States to file for livestock water ``to
the extent allowed by State law,'' two states--Nevada and Arizona--
enacted laws to prevent BLM from claiming livestock water rights.
The grazing regulations address state water rights for livestock
watering purposes, not other purposes. The regulations therefore do not
affect other potential BLM filings, such as for fish, wildlife, or
instream flow.
One comment pointed out that BLM has authority and discretion to
apply penalties for specific prohibited acts. The comment stated that
BLM may withhold, suspend, or cancel a grazing permit, and recommended
clarification of the effect of sharing water rights if BLM needs to
impose a penalty for a prohibited act if the permittee had a shared
livestock water right on that allotment. The comment stated that a
state water right can be looked upon as a property right and asked
whether this could make it difficult for BLM to transfer a canceled
permit to a new permittee.
BLM's authority and discretion to impose penalties for prohibited
acts is independent of and unaffected by ownership of livestock water
rights. BLM's authority to take action under subpart 4140 (Prohibited
Acts), subpart 4150 (Unauthorized Grazing Use) and subpart 4160
(Administrative Remedies) is not affected by the name in which the
water right is held. Thus, when a permittee engages in a prohibited act
that triggers BLM's authority to suspend or cancel the grazing permit
(e.g., grazing in violation of the terms and conditions of the permit),
BLM may take appropriate action, regardless of who owns the water
right. Indeed, even where a permittee has sole ownership of a livestock
water right, BLM's authority to issue a new permit is unaffected.
(Contrary to the way the comment stated the question, BLM does not
transfer a canceled permit. BLM would issue a new permit, which may
have terms and conditions reflecting the availability of less water for
watering livestock within the allotment if the former permittee
retained the water rights, unless the new permittee has acquired the
water rights from the former permittee). The suspended or canceled
permittee may sell or otherwise transfer its water rights in the
absence of its ability to make use of the water right by grazing on
public lands.
Another comment stated that it is unclear how cooperative water
rights will affect BLM's ability to manage sensitive wildlife and
plants on an allotment, and suggested that BLM management would become
less flexible if water rights become cooperative.
The proposed water right policy changes would have no effect on
water resources as long as the water resources remain available for use
on public land. Also, the changes in the final rule should have no
effect on special status species, as the changes largely provide
clarification of the existing regulations or bring regulations into
compliance with court rulings.
BLM does not anticipate significant impacts on special status
species from the new livestock water rights policy for several reasons.
First, the number of new water developments on which permittees would
be able to claim livestock water rights will be very small relative to
the total number of water sources on public land. Before such
developments are constructed, BLM will analyze them under NEPA to
identify potential impacts on special status species, and impose terms
and conditions in the cooperative range improvement permit to protect
those species. Current land use management plans, activity plans,
grazing permits, right-of-way permits, and other land use
authorizations govern the usage of water sources that have already been
developed. They also govern usage of undeveloped water sources that
provide livestock water. A claim for a livestock water right by a
grazing permittee on existing undeveloped or developed water sources
would not be capable of changing on-the-ground management at the source
without explicit authorization from BLM.
One comment stated that ``giving up'' water rights inhibits BLM's
flexibility in making management decisions and has the potential for
impacts on water resources.
We disagree that BLM is ``giving up'' any of its water rights or
its ability to obtain new water rights under state law. Moreover, the
final rule will not result in less flexibility for water usage on
public lands. In accordance with FLPMA's requirement of multiple use
management, use of water on public land for wildlife, recreation,
mining, and other uses will continue with rights for those uses usually
in the name of the United States. Section 4130.3-3 provides BLM
authority to make changes in the terms and conditions of a grazing
permit or lease when it authorizes active use or a related management
practice that does not meet management objectives or otherwise does not
conform to the standards and guidelines established under subpart 4180.
Usage of public lands is also subject to BLM land use authorizations,
which contain appropriate terms and conditions to support continued
multiple uses on public lands. Thus, the number of AUMs in a grazing
permit or lease, or any other term or condition, is unrelated to the
extent of state-granted water rights. Also, many livestock water rights
are currently held by permittees, or jointly owned with BLM, and BLM
has not seen evidence that holding a livestock water right discourages
cooperation or compliance with terms and conditions of grazing permits.
One comment expressed concern that, although the rule stipulates
livestock water development, the holder of the water right could
subsequently request a transfer of use for some other purpose. The
comment stated that this policy sacrifices future public value and
multiple use opportunities that water might provide, such as in-stream
flows, wildlife habitat, and recreation use. The comment went on to say
that allowing
[[Page 39465]]
private acquisition of a water right gives ownership of a public
resource to a private entity in perpetuity, and concluded that, without
landowner control of water, public benefit and associated land
management opportunities will be severely restricted.
States have control over their own water law procedures regardless
of the content of Federal grazing regulations. The 1995 regulations
acknowledged this control by directing the United States to acquire
stock watering rights ``to the extent allowed by State law.'' Before
1995, permittees were able to file joint water rights applications with
the United States on livestock water sources.
The concerns raised in the comment related to removing the
requirement that water rights for livestock use be held in the name of
the United States are unlikely to occur. An increase in the number of
water rights for livestock use on public lands held in the name of
permittees or lessees is probable, but unlikely to compromise BLM's
ability to manage public lands in accordance with FLPMA's multiple use
mandate. Use of water on public land for wildlife, recreation, mining,
and other uses will continue with water rights for those uses usually
in the name of the United States. By agreeing that permittees and
lessees can hold livestock water rights, BLM anticipates that it will
be able to negotiate better cooperative agreements, resulting in
improved cooperation between BLM, states, and permittees and lessees.
Ownership of water rights by permittees will have no effect on title to
the land, since land remains in the ownership of the United States.
Exchanges or preference transfers resulting from permittee ownership of
water rights for livestock use could occur, although BLM does not
expect them to be common. When they occur, they can often be resolved
through negotiated settlements among all parties.
Section 4120.5-2 Cooperation With Tribal, State, County, and Federal
Agencies
We amended this section in the proposed rule by adding a new
paragraph (c) adding state, local, and county-established grazing
boards to those groups we routinely cooperate with in administering
laws and regulations relating to livestock, livestock diseases, and
sanitation. Field-level range improvement and allotment management
planning programs will benefit from the additional perspective that
locally established grazing advisory boards could provide.
In the final rule, we have amended paragraph (c) to add Tribal
grazing boards to the list of entities with which we are required to
cooperate. We also modified the language in paragraph (c) to make it
clear that BLM is required to cooperate only with Tribal, state,
county, or local grazing boards that are established under government
authority, as opposed to private organizations that assume the title
``grazing board.'' In addition, we amended the heading of the section
and the introductory text so that they refer to Tribal as well as the
other government agencies.
Many comments supported the addition of paragraph (c) to section
4120.5-2. These comments gave a variety of reasons.
A comment stated that the regulations should require agency
cooperation with state, county, and local grazing boards, because the
creation and use of such boards would give BLM land managers direct
resource-related information from subject matter experts in the local
areas, increasing our ability to devise appropriate strategies for
managing public lands under the multiple-use mandate. Another supported
the amendment because state and local governments and local citizens
have more at stake in the health of the land in their area than does
BLM. The comment said that where state and local governments have
established grazing advisory boards to provide for the health and
management of public lands in their jurisdiction, they should be given
maximum opportunity to do so. Other comments supported the proposed
provision because consultations between grazing boards and BLM
officials will provide for improved working relations on issues of
significant importance to all stakeholders, and the new provision also
fulfills statutory and regulatory requirements for consultation,
cooperation, and coordination. One comment stated that grazing advisory
boards can be used to help resolve conflicts between the agency and
allotment owners, while another said that local grazing advisory boards
allow for more efficient use of agency resources and money.
BLM intends cooperation with grazing boards to provide BLM land
managers local resource-related information from subject matter experts
in local areas, thus increasing BLM's ability to develop and recommend
appropriate strategies in developing allotment management plans and
planning range improvements. BLM agrees that cooperation with local,
county, and state agencies, governmental entities, and grazing boards
established by state, county, and local governments will help us in
considering how best to apply land management practices and spend range
improvement funds. Cooperation with all groups and individuals,
including Tribal entities, to achieve the objectives of grazing
management, is required in section 4120.5-1 of the existing grazing
regulations. Existing policy and law provides for the consultation,
cooperation, and coordination with these groups as well as others. BLM
recognizes that these entities have a high stake in promoting healthy
public lands in their areas. We therefore also intend the provision to
direct BLM field managers to cooperate with state, county, and local
government boards in carrying out the boards' functions. That is, we
will participate in their meetings, provide information on request when
it is legal and appropriate to do so, answer inquiries, provide advice,
and generally interact with the boards in a cooperative manner. The
amended regulations would formalize the role of grazing boards in
providing input and helping to avoid and/or resolve conflicts between
BLM and grazing permittees and lessees. However, it is not the intent
of the regulations to confer upon any grazing board cooperating agency
status.
One comment stated that BLM should provide an opportunity for local
collaborative groups to be creative and proactive in the management of
local public lands. The comment added that private lands adjacent to
the public lands--often the base property for permittees--are usually
the most important habitat (for example, critical winter range) for
many wildlife species.
BLM agrees that informal collaboration with local publics is
beneficial to management of public lands and recognizes that adjacent
private lands and land and water base properties often provide
important wildlife habitats, for the same reasons that historically
these lands were more likely to have been homesteaded or otherwise
converted from public domain to private ownership. Our regulations at
sections 4120.5-1 and 4120.5-2 require us to cooperate with individuals
and other local (along with Federal, state, and Tribal) entities, to
the extent appropriate and consistent with the applicable laws of the
United States, to achieve the objectives stated in the regulations.
However, the only requirement added in section 4120.5-2 is that we
cooperate with government and government-created boards, not informal
citizen groups, in the administration of laws and regulations relating
to livestock, livestock diseases, sanitation, and noxious weeds.
[[Page 39466]]
Many comments opposed the addition of paragraph (c) to section
4120.5-2. These comments also gave a variety of reasons.
One comment stated that the provision gives the impression that
grazing board concerns have greater weight than the interests of other
groups. The comment said that the perspectives of these other groups
can also be valuable to the BLM decisionmaking process. Others stated
that it will reduce BLM's role as an independent land management
agency, and that it will duplicate or supplant the current arrangement
BLM has with, and will undermine the efforts of, the RACs.
As a general matter, BLM considers the views of all stakeholders
providing input into BLM's decisionmaking process, but will not be
constrained in its management by input from grazing boards. This means
that, assuming we have the manpower, we will attend their public
meetings when invited, provide information when requested, and invite
their input when appropriate. BLM will cooperate with the boards to
facilitate their review of range improvements and allotment management
plans on public lands, but we will retain our independent
decisionmaking role.
The role of the RACs is broader, in that it also encompasses input
into and review of the standards and guidelines for grazing
administration under subpart 4180. There may be some overlap among
these groups in the discussion of grazing allotment management issues.
Nevertheless, this input will be valuable to BLM, broadening
perspectives as to the issues. As a result, we expect that our
decisionmaking process will be more effective and our data will be more
comprehensive. Of course, laws, regulations, policy, and a multitude of
other factors also guide and direct BLM's decisionmaking process.
A comment from a state wildlife management agency stated that
specific language should be added to paragraph (c) to address
appropriately the requirements for consultation with state wildlife
management agencies called for in several Federal laws, including the
TGA.
Section 4120.5-1 requires BLM to cooperate, to the extent
appropriate, with Federal, state, (including state wildlife management
agencies), Tribal, and local government entities, institutions,
organizations, corporations, associations, and individuals to achieve
the objectives of the regulations in part 4100. Section 7 of the ESA
requires formal consultation with FWS and/or NOAA Fisheries if a
federally-listed species may be adversely affected due to a proposed
action. Furthermore, the grazing regulations specifically require BLM
to consult with states having lands or responsibility for managing
resources within the area--
Before adjusting allotment boundaries,
Before apportioning additional livestock forage,
Before implementing changes in active use,
Before closing allotments or modifying grazing for
immediate protection of resources,
During the preparation of allotment management plans,
Before revising or terminating allotment management plans,
or issuing or renewing grazing permits or leases, including
nonrenewable permits, and
Before modifying the terms and conditions in permits or
leases.
No additional language is necessary in the grazing regulations to
ensure coordination with state wildlife management agencies.
One comment stated that paragraph (c) should be removed because
many states, counties, and local areas do not have any established
grazing boards. Another stated that it is not clear how these grazing
boards are defined or established, nor what it would take for a grazing
board to qualify as ``established.'' One comment stated that paragraph
(c) was tantamount to the reestablishment of grazing advisory boards,
the authority for which expired on December 31, 1985 (43 U.S.C.
1753(f)).
The establishment of grazing boards is at the discretion of state,
county, and local governments, and is not required or authorized by
BLM. This rule change formally recognizes the benefit of cooperating
with existing and any future Tribal, state, county, or local
government-established grazing boards in reviewing range improvements
and allotment management plans. Each specific grazing board, or the
governmental entity creating or authorizing it, determines the grazing
board's establishment, internal organization, and role.
One comment stated that BLM should include other groups and boards
representing various public land resource interests in the local area
(such as Tribal Associations) in section 4120.5-2(c), because many of
these groups and agencies utilize BLM lands.
In section 4120.5-2 of the grazing regulations, the authorized
officer is required to cooperate, to the extent consistent with
applicable laws of the United States, with the involved state, county,
and Federal governmental agencies in administering certain laws and
regulations. Section 4120.5-1 requires cooperation, to the extent
appropriate, with Federal, state, Tribal, and local entities, as well
as individuals, institutions, organizations, corporations, and
associations to achieve the objectives of grazing management.
Cooperation with grazing boards, where they exist, can give BLM land
managers resource-related information from local subject matter
experts, thus increasing our ability to develop appropriate strategies
for managing grazing allotments and developing range improvements under
the multiple-use mandate. We have added Tribal associations to
paragraph (c) of section 4120.5-2 in response to the comments.
One comment suggested that we expand the scope of paragraph (c) to
require cooperation with local grazing boards as to other elements of
rangeland management. The comment stated that these groups could assist
with the resolution of such issues as conflicts between permittees and
other users of the public lands and in designing monitoring programs.
Tribal, state, county, and local government-established grazing
boards are independent entities, set their own agendas, select their
own members, and determine the level of their interest in reviewing
allotment management plans and range improvements. Under this rule, BLM
will not establish, sanction, or direct the function of grazing boards.
BLM's role, as identified in the grazing regulations, is to weigh any
input from the grazing boards as well as from others as we consider
allotment management plans and range improvements. Under section
4120.5, BLM coordinates with Federal, state, Tribal, and county
government entities and RACs on a wide variety of public land
management issues and proposed actions.
One comment stated that grazing boards should be consulted but
should remain autonomous from RACs, as provided in the TGA. Another
stated that grazing boards comprised of members of the general public
may have personal concerns or pet issues that should not affect BLM
management practices.
Under the proposed grazing regulations, grazing boards established
by state, county, and local government and RACs will remain as distinct
organizations. The grazing advisory boards referred to in the TGA were
terminated in 1974 in accordance with Section 14 of the Federal
Advisory Committee Act of 1972 (5 U.S.C. App. 1), and should not be
confused with the grazing boards in the proposed grazing regulations.
These grazing boards are
[[Page 39467]]
neither established nor sanctioned by BLM. Partly in response to the
confusion and concerns demonstrated by these comments, we are amending
paragraph (c) in the final rule to add the word ``government'' after
the word ``local.'' This should make it clear that the grazing boards
referred to in the provision with which BLM must cooperate in
administering livestock laws are only those created or sanctioned by
state, county, Tribal, or local government entities.
One comment suggested that only affected permittees, and not
individuals from other locations, should be consulted regarding section
4120.5-2, ``Cooperation with State, county and Federal agencies.''
That section addresses cooperation with Tribal, state, county and
Federal agencies and thus does not include a consultation requirement
with the interested public, that is, individuals. The section does
require BLM to cooperate with Tribal, state, county, and other Federal
agencies regarding the administration of laws and regulations related
to livestock, livestock diseases, sanitation, and noxious weeds. No
changes were made in the final rule as a result of this comment. BLM
believes it is important to continue to work cooperatively with other
governmental authorities regarding the administration of laws and
regulations related to livestock, livestock diseases, sanitation, and
noxious weeds.
One comment expressed concern that the rule may lead to
inconsistency and inefficiency between BLM and the Forest Service in
the areas of water rights, management of ``federal trust'' resources,
range improvement ownership, temporary nonuse, prohibited acts, the
definition and role of the interested public, and the ability of the
agencies to ensure that fish and wildlife are managed in a sustainable
manner across administrative boundaries. One comment stated that,
although the FWS is not specifically mentioned in the FEIS,
consultation with the Service should occur as required under Section
7(a)(2) of the ESA (50 CFR 402.14).
BLM will coordinate and consult with the Forest Service and state
agencies when administering the grazing program. Consistency with the
Forest Service regulations, though desirable at times, is not necessary
for implementing effective rangeland management practices. Specific
inconsistencies between the regulations and policies of BLM and the
Forest Service related to fish and wildlife resources have not been
identified. In general, however, inconsistencies continue to exist
largely because the two agencies have different statutory requirements
that govern their regulations and policies. However, nothing in the
proposed revisions will preclude BLM and the Forest Service from
working across administrative boundaries to manage fish and wildlife in
a sustainable manner.
BLM consults with the FWS when an evaluation of a discretionary
action results in a determination that there may be an effect on an
endangered species. Although BLM coordinated with the FWS on various
aspects of the rule, ultimately BLM concluded that the rule will have
no effect. Consultation under Section 7(a)(2) of the ESA is not
required under 50 CFR part 402 on an action that has no effect on an
ESA-listed species.
One comment referred to an MOU that BLM, the Forest Service, and
the FWS signed with WAFWA to conserve the greater sage-grouse and its
habitat. The comment stated BLM should consider the commitments of the
MOU in the proposed revisions to grazing regulations.
The WAFWA MOU outlines the roles of state and Federal partners
throughout the 11 Western States in conservation of the currently-
occupied range of the sage-grouse. Our commitments under this MOU are
compatible with grazing management. Under the MOU, BLM will continue to
coordinate with the states and local working groups to develop state
and local conservation strategies. The administrative changes in the
final rule will have no effect on this coordination commitment. In
addition, and to complement the WAFWA MOU commitments, BLM released the
National Sage-Grouse Habitat Conservation Strategy in 2004. This
strategy describes agency actions necessary to conserve the sage-grouse
and its habitat on BLM land, and includes a detailed timeline of
actions that BLM is implementing through agency directives. The grazing
rule amendments will have no effect on BLM's implementation of the
sage-grouse strategy.
One comment urged BLM to include the FWS among the entities it must
consult before changing grazing allotment boundaries under 43 CFR
4110.2-4.
Where a proposal to undertake a discretionary action under the
grazing regulations, such as designating or adjusting an allotment
boundary under 43 CFR 4110.2-4, triggers ESA consultation requirements,
BLM will meet those requirements. However, BLM does not believe it
appropriate to list in its grazing regulations all instances where
discretionary action taken under the regulations may trigger ESA
consultation.
One comment encouraged BLM to consider how the rule would affect
the ability of local sage-grouse working groups to implement
conservation actions for this species.
The working groups and their commitments are outlined in the WAFWA
MOU, and are unchanged by the proposed regulations. Site-level
decisions remain within the purview and discretion of BLM field
offices, and address sage-grouse habitat needs in an allotment-level
assessment process outlined in the existing regulations, using local
working group recommendations. BLM's ability to identify and react to
sage-grouse habitat needs will not be affected by the proposed
administrative adjustments of the grazing regulations.
Section 4130.1-1 Filing Applications
In the proposed rule, we moved the provisions on determining
satisfactory record of performance from section 4110.1 to section
4130.1-1 on filing applications, where they more logically fit. We also
amended the provisions to clarify the factors that we take into account
in determining whether an applicant for a new permit has a satisfactory
record of performance. The rule deems applicants for issuance of a new
permit or lease to have a satisfactory record of performance if:
1. The applicant or affiliate has not had a Federal lease canceled
within the previous 36 months;
2. The applicant or affiliate has not had a state lease canceled,
for lands in the grazing district where they are seeking a Federal
permit, within the previous 36 months; or
3. The applicant or affiliate has not been legally barred from
holding a Federal grazing permit or lease by a court of competent
jurisdiction.
One comment urged BLM not to adopt the proposed rule provision
regarding satisfactory record of performance, stating that the proposed
wording is an attempt to show favoritism to someone with past recent
violations that did not occur on the allotment for which the applicant
is applying. Another comment stated that permittees could avoid
violations by timing applications to particular grazing allotments
where they had not committed a violation in the last 3-year period.
The changes made provide consistent direction on what constitutes a
satisfactory record of performance. Determining a satisfactory record
of performance is not limited to grazing permit or lease violations on
the particular allotment for which an
[[Page 39468]]
application is being made. Section 4130.1-1(b)(2)(i) states that the
authorized officer will consider applicants for a new or transferred
preference to have a satisfactory record of performance when the
applicant has not had any Federal grazing permit or lease canceled for
violation of the permit or lease within the 36 months preceding the
date of application.
One comment suggested that BLM should subject a permit applicant
who has a poor management record to a public hearing as part of its
process for determining whether the applicant has a satisfactory record
of performance. The author of the comment stated that legitimate users
of the land do not need to have someone who is known to ignore good
range management standards abusing the land or BLM's staff, and added a
request for open hearings so that the public interest could be heard.
BLM will determine whether applicants for renewal or issuance of
new permits and leases and any affiliates have a satisfactory record of
performance. BLM agrees that a poor operator who abuses public land is
detrimental to sound land management. BLM will not approve such renewal
or issuance unless the applicant and all affiliates have a satisfactory
record of performance, as provided in section 4130.1-1(b). BLM does not
believe that any useful purpose would be served by including a public
hearing as part of the process of determining whether an applicant for
a permit or lease has a satisfactory record of performance. If rejected
applicants appeal BLM's decision to deny them a permit or lease based
on an unsatisfactory record of performance, they would have the right
to a hearing of their appeal before an Administrative Law Judge under
43 CFR part 4, which would be open to the public.
Several comments urged BLM to remove section 4130.1-1(b)(2)(ii),
stating that cancellation of a state grazing permit should not be
grounds for determining that a permittee or applicant has an
unsatisfactory record of performance. The comments stated that some
state rules go beyond practices directly related to livestock grazing.
Another comment stated that the provision exceeds BLM's authority under
Section 302(c) of FLPMA (43 U.S.C. 1732(c)).
The provision in question provides standards for determining that
an applicant has a satisfactory record of performance. BLM will find a
record of performance satisfactory if the applicant has not had a state
permit or lease of lands within the allotment for which the applicant
seeks a Federal authorization, canceled for violation of its terms or
conditions within the preceding 36 months. Note that the threshold in
the regulations is cancellation, in whole or in part, for violation of
the state permit or lease rather than for other reasons under state
law, such as cancellation because the state declines to issue permits
for the particular time or land or the state has disposed of the land.
Section 302(c) states that any ``instrument'' authorizing the use of
public lands shall include a provision authorizing BLM to revoke or
suspend the instrument upon a final administrative finding of a
violation of any term or condition of such instrument. Section 302(c)
does not limit the scope of what BLM may require of an applicant.
One comment requested BLM to clarify whether a person has a
satisfactory record of performance if he is damaging the public lands,
but has not had a Federal permit or lease canceled, has not had a state
permit or lease canceled on the pertinent allotment, and has not been
barred from holding a Federal permit or lease by a court of competent
jurisdiction. On the other hand, another comment stated that requiring
a permittee to apply for renewal will increase the importance of the
performance review in the renewal process, but could lead to using the
performance review as an excuse not to renew a permit.
BLM will consider the question whether a person is damaging the
public lands in determining whether he is in substantial compliance
with the terms and conditions of his permit or lease and with the
regulations applicable to the permit or lease. Whether or not there has
been a cancellation, BLM may find a permittee not in substantial
compliance with permit or lease terms and conditions or with the
regulations, and consider this finding in determining whether to renew
the permit or lease. BLM will also consider whether the lack of
substantial compliance was due to circumstances beyond the control of
the permittee or lessee.
One comment suggested that section 4130.1-1(b)(2) also provide that
a party would not be considered to have a satisfactory record of
performance if he--
(1) Obstructs public access to public lands;
(2) Grazes livestock after the end of the grazing period;
(3) Removes water sources used by wildlife; or
(4) Poaches or kills wildlife.
A permittee or lessee who does things like those listed in the
comment may be found not in substantial compliance with the terms and
conditions of the permit or lease, and thus not to have a satisfactory
record of performance.
One comment stated that BLM should change its qualifications to
receive a grazing permit so that applicants with a criminal background
are barred from getting a permit.
We have considered the comment and decided that it would be
impractical for BLM to bar applicants with a criminal background from
getting a grazing permit, unless the criminal conviction was directly
related to the loss of a Federal or state grazing permits or leases due
to violations, or the applicant was barred from holding a Federal
grazing permit or lease by a court of competent jurisdiction as
provided in the final rule in section 4130.1-1 et seq. Furthermore, it
is not Federal or BLM policy to prevent a person who has been convicted
of a crime, served his sentence, and been rehabilitated, from obtaining
gainful employment.
One comment stated that BLM should consider increasing the
``statute of limitations'' on conditions for having a satisfactory
record of performance in section 4130.1-1(b)(2) to more than 3 years.
The 36-month period has been in the regulations since the
requirement to have a satisfactory record of performance was added in
the 1995 rule. We have no evidence that this threshold is not working,
and have not changed it in this final rule.
In the proposed rule we invited comments on whether we should
require an application for renewal of a grazing permit or lease (68 FR
68456). Several comments addressed this issue.
Several comments urged BLM to change section 4130.1-1(a) to provide
that only new applicants for grazing permits or leases need to submit a
formal application, so that it is clear that the holder of an expiring
10-year term permit or lease does not have to submit a formal
application for renewal of that permit or lease. These comments stated
that Section 402(c) of FLPMA provides that, so long as the lands under
the permit or lease remain available for livestock grazing, the holder
of the expiring permit has complied with applicable regulations and
accepts the terms and conditions of the new permit or lease, the holder
of the expiring permit must be given first priority for receipt of the
new permit or lease. They offered several policy reasons for not
requiring preference holders to reapply for permits every ten years,
stating that requiring such applications would allow the agency too
much discretion; be used by environmental groups as tools to
[[Page 39469]]
force review of environmental conditions on allotments; consume agency
resources; burden permittees and lessees; increase the importance of
performance reviews and perhaps lead to using the performance review as
an excuse to deny a new permit; have allowed or will allow agency
personnel to use the lease renewal process to extract inappropriate
concessions from, or impose inappropriate requirements, on permittees
and lessees on environmental and other issues. They stated that FLPMA
allows a preference holder the right to renew. One contended that, if
grazing allotments are designated in the land use plan, they should not
be considered discretionary activities requiring periodic review before
renewal.
One comment, however, felt that permittees and lessees should
submit an application for renewal when their permits or leases expire.
It stated that the renewal application should be thoroughly reviewed by
BLM before a decision is made to renew.
The first group of comments is correct in that BLM must give the
holder of an expiring permit or lease priority for receipt of a new
permit or lease, so long as the conditions of Section 402(c) of FLPMA
are met. However, there is administrative utility in requiring
application for the renewal of an expiring permit or lease. Therefore,
we have not adopted this suggestion in the final rule. The regulatory
text does not explicitly require an application, but by referring to
``the applicant'' it implies the requirement. Submitting a permit or
lease renewal application by the holders of an expiring permit or lease
documents their interest in their continued use of the permit or lease
and that they are aware that their permit or lease will be expiring and
must be renewed. Submitting an application for renewal also allows an
opportunity for the holders of the expiring permit or lease to apply
for changes in its terms and conditions that they may desire, and
provides them certainty under the APA (5 U.S.C. 558 (c)(2)) as to
continued use of their permit or lease in the event that its renewal is
delayed due to BLM's inability to process the application in a timely
manner. The application will also be a useful element of the
administrative record.
A comment stated that BLM should not renew grazing permits when
they expire. Ranchers should not be allowed to graze cattle for
personal gain on public land.
The TGA, FLPMA, and other laws authorize grazing on public land for
private business purposes.
Section 4130.1-2 Conflicting Applications
In the proposed rule we made no changes in this section, which
provides for how we resolve the situation when more than one qualified
applicant seeks a permit or lease for grazing use of the same public
lands or where additional forage or acreage becomes available. However,
questions raised in comments indicated a degree of confusion as to the
meaning of one paragraph of this section, and suggested that we should
change the wording for purposes of clarification.
Section 4130.1-2(d) provides that when BLM must decide among
conflicting applic |
