[Federal Register Volume 68, Number 235 (Monday, December 8, 2003)]
[Proposed Rules]
[Pages 68452-68474]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-30264]



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Part II





Department of the Interior





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Bureau of Land Management



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43 CFR Part 4100



Grazing Administration--Exclusive of Alaska; Proposed Rule

  Federal Register / Vol. 68, No. 235 / Monday, December 8, 2003 / 
Proposed 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: Proposed rule.

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SUMMARY: The Bureau of Land Management (BLM) proposes amending its 
regulations concerning how BLM administers livestock grazing on public 
lands. The proposed changes would: improve BLM's day-to-day grazing 
management efficiency; ensure BLM documents its considerations of the 
social, cultural, environmental, and economic consequences of grazing 
changes; provide that changes in grazing use be phased-in under certain 
circumstances; allow BLM to share title with permittees and lessees to 
range improvements in certain circumstances; make clear how BLM will 
authorize grazing if a BLM decision affecting a grazing permit is 
stayed pending administrative appeal consistent with court rulings; 
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 current grazing management does 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 fees. We intend these changes to improve 
working relationships with permittees and lessees, enhance 
administrative efficiency, and cost effectiveness, clarify the 
regulations and protect the health of rangelands.

DATES: You should submit your comments on or before February 6, 2004. 
The BLM may not necessarily consider comments postmarked or received by 
messenger or electronic mail after the above date in the decision-
making process on the final rule.
    Public meetings will be held on dates and at times and places to be 
announced in subsequent Federal Register documents.

ADDRESSES: Mail: Director (630), Bureau of Land Management, Eastern 
States Office, 7450 Boston Boulevard, Springfield, Virginia 22153, 
Attention: RIN 1004-AD42.
    Personal or messenger delivery: 1620 L Street NW., Suite 401, 
Washington, DC 20036.
    Direct Internet response: http://www.blm.gov/nhp/news/regulatory/index.htm. or http://www.blm.gov/grazing.
    E-mail: [email protected].

FOR FURTHER INFORMATION CONTACT: Ken Visser, Rangeland Management 
Specialist, Rangeland, Soils, Water and Air Group, (202) 452-7743, Ted 
Hudson (202) 452-5042 or Cynthia Ellis (202) 452-5012 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. Public Comment Procedures
II. Background
III. Why We Are Proposing This Rule
IV. Section-by-Section Analysis
V. Procedural Matters

I. Public Comment Procedures

A. How Do I File Comments?

    If you wish to comment, you may submit your comments by any one of 
several methods.
    [sbull] You may mail your comments to: Director (630), Bureau of 
Land Management, Eastern States Office, 7450 Boston Boulevard, 
Springfield, Virginia, 22153.
    [sbull] You may deliver comments to 1620 L Street NW., Suite 401, 
Washington, DC 20036.
    [sbull] You may comment via the Internet by accessing our automated 
commenting system located at www.blm.gov/nhp/news/regulatory/index.htm 
and following the instructions there.
    [sbull] You may comment via email at [email protected].
    Please make your comments on the proposed rule as specific as 
possible, confine them to issues pertinent to the proposed rule, and 
explain the reason for any changes you recommend. Where possible, your 
comments should reference the specific section or paragraph of the 
proposal that you are addressing.
    The Department of the Interior may not necessarily consider or 
include in the Administrative Record for the final rule comments that 
we receive after the close of the comment period (see DATES) or 
comments delivered to an address other than those listed above (see 
ADDRESSES).

B. May I Review Comments Others Submit?

    BLM intends to post all comments on the Internet. If you are 
requesting that your comment remain confidential, do not send us your 
comment at the Internet or e-mail address because we immediately post 
all comments we receive on the Internet. Also, comments, including 
names and street addresses of respondents, will be available for public 
review at the address listed under ADDRESSES: Personal or messenger 
delivery'' during regular business hours (7:45 a.m. to 4:15 p.m.), 
Monday through Friday, except holidays.
    Individual respondents may request confidentiality, which we will 
honor to the extent allowable by law. If you wish to withhold your name 
or address, except for the city or town, you must state this 
prominently at the beginning of your comment. We will make all 
submissions from organizations or businesses, and from individuals 
identifying themselves as representatives or officials of organizations 
or businesses, available for public inspection in their entirety.

II. Background

    The regulations on livestock grazing provide the framework for a 
public land use that has its roots in the settlement of West. The 
tradition of orderly use of public range in conjunction with private 
lands was recognized in law with the passage of the Taylor Grazing Act 
(TGA) in the 1930s, and again in 1976 with the Federal Land Policy and 
Management Act. The intent of the regulations has always been for the 
agency to consult and cooperate with the ranchers, private landowners, 
and other users of the public lands. Our shared purpose must be to 
sustain the open space, habitat, and watershed values that the public 
and private lands together can offer.
    Providing for livestock grazing is part of the BLM mission to 
sustain the health, diversity, and productivity of public lands. In 
part because of its long history, public land grazing is woven into the 
landscapes and cultures of the rural West, and contributes valuable 
landscape and culture elements. Our challenge is to establish a 
framework that helps us accomplish our shared stewardship purpose in a 
manner that works well in the social and economic context of affected 
communities.
    The ranching families of livestock permittees live and work in the 
heart of the Western rural landscapes. Their relationship with BLM 
needs to be more than regulatory if we are to engage in conservation of 
entire landscapes. Our goals must be to establish simple and

[[Page 68453]]

practical ways for permittees, lessees, affected state and local 
officials, and the interested public to engage with BLM in partnerships 
that will leave improved open space, watershed, and habitat conditions 
to the next generation.
    Without careful consideration of policy decisions affecting 
ranching, conversion of this rural West to something different is 
entirely possible. This conversion is frequently in evidence along the 
expanding urban interfaces of the West: development of ranchland into 
subdivisions, changes in water use and watershed characteristics, and 
changes in fire frequency and effects. Some of these changes are 
necessary as populations grow and shift, but also necessary is 
retaining large tracts of the rural West. A proper regulatory framework 
for managing grazing use can contribute to maintaining Western 
landscapes.
    Whenever BLM addresses changes in regulations, we engage in a 
public dialogue to ensure all points of view are considered. The 
changes proposed in this rule seek to strike a balance among competing 
goals, and to keep administrative processes as simple, understandable, 
and flexible as possible. Meaningful, positive, and sustainable change 
on the rangelands of the West can best be accomplished through 
cooperation.
    The proposed amendments of the grazing regulations were developed 
using three primary concepts:
    (1) Improving cooperation with all interested persons, especially 
with directly affected permittees and landowners;
    (2) Promoting practical mechanisms for assessing change in 
rangelands and protecting rangelands by increasing monitoring 
activities; and
    (3) Enhancing administrative efficiency and effectiveness, 
including addressing legal issues that need clarification.
    Applying these three concepts should strengthen the regulations and 
promote communication oriented toward seeking agreement and working 
together. Together we can gather more and better information on 
observed trends in the vegetation communities of the West. We can 
resolve some legal matters that have been barriers to meaningful 
dialogue about the issues we need to address. And we can sharpen the 
focus on the issues that truly need our attention as we seek to ensure 
proper grazing management as a part of conserving the rural landscapes 
of the West.
    BLM administers livestock grazing on BLM lands within the 
continental United States under the regulations found at 43 CFR 4100. 
Statutory authorities supporting these regulations include 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 (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.
    BLM land use plans guide and direct public lands resource 
management under the multiple-use mandate of the Federal Land Policy 
and Management Act of 1976. Land use plans specify 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, and the grazing regulations.
    Since the first set of grazing regulations was issued after passage 
of the TGA in 1934, they have 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. Changes made to 
the rules in 1995 include the following:
    1. 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 authorized by grazing permits or leases;
    2. Removed the requirement that one must be engaged in the 
livestock business to qualify for grazing use on public lands;
    3. Required applicants for a new or renewed grazing permit to have 
a satisfactory record of performance;
    4. Provided that BLM could issue a conservation use permit to 
authorize permittees not to graze their permitted allotments;
    5. Limited authorized temporary nonuse to 3 years;
    6. Required grazing fee surcharges for permittees who do not own 
the cattle that graze under their permits;
    7. Provided that the United States holds 100 percent of the vested 
title to permanent range improvements, constructed under cooperative 
agreements, rather than proportionately sharing title with the 
cooperators;
    8. Required livestock operators and the BLM to use cooperative 
agreements to authorize new permanent water developments, instead of 
allowing some water developments to be authorized under range 
improvement permits;
    9. Provided that after August 21, 1995, the United States, if 
allowed by state water laws, would acquire livestock water rights on 
public lands;
    10. Authorized BLM to approve non-monetary settlement of non-
willful grazing trespass under certain circumstances;
    11. Expanded the list of prohibited acts applicable to grazing 
activities;
    12. Established Fundamentals of Rangeland Health; and
    13. 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.
    The Public Lands Council sought judicial review with respect to a 
number of these provisions. The court upheld all provisions except 
conservation use (see 4, above) (Public Lands Council v. Babbitt, 929 
F.Supp. 1436 (D. Wyo. 1996), rev'd in part and aff'd in part, 167 F.3d 
1287 (10th Cir. 1999), aff'd, 529 U.S. 728 (2000)).

III. Why We Are Proposing This Rule

    The current regulations, issued in 1995, require amending to comply 
with court decisions, improve working relationships with permittees and 
lessees, enhance administrative procedures and business practices, and 
promote conservation of public lands.
    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 on March 3, 2003, (68 FR 9964-66 and 
10030-

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10032). These notices requested public comment and input to assist BLM 
with the scoping process for this 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. The meetings were held during 
March 2003 in Albuquerque, New Mexico; Reno, Nevada; Billings, Montana; 
and Washington, DC.
    We received approximately 8,300 comments on the ANPR and the NOI. 
The majority of these were varying types of form letters. In response 
to the ANPR, the majority of commenters opposed allowing livestock 
operators to temporarily lock gates on public lands in order to protect 
private property in specific limited situations. We have dropped this 
proposal from this proposed rule. Many commenters also opposed making 
any changes to the 1995 grazing regulations and several questioned why 
BLM was proposing amendments to the grazing regulations so soon after 
the 1995 changes. Some members of the ranching industry commented that 
they supported allowing categorical exclusions for routine activities 
during National Environmental Policy Act (NEPA) compliance; however, 
this is outside the scope of the rulemaking and is not addressed in 
today's proposed rule. Many commenters urged BLM to consider increasing 
monitoring efforts on grazing allotments. Some commenters recommended 
raising the grazing fees to reflect current market values for 
livestock. BLM is not addressing grazing fees in today's proposed rule.
    We will distribute the Draft EIS (DEIS) on approximately December 
19, 2003. Copies will be available on the Internet at http://www.blm.gov/grazing, and at the Department of the Interior Library, C 
Street Lobby, 1849 C Street, NW, Washington, DC 20240. Copies of the 
DEIS will also be available at BLM State Offices. BLM will publish a 
Notice of Availability of the DEIS in a separate publication in the 
Federal Register. The DEIS examines the impact of the proposed 
regulatory changes and alternatives for improving the management of the 
Nation's public rangelands.
    This proposed rule would make changes in several sections of BLM's 
existing regulations, including revising and creating definitions for 
key terms pertinent to the grazing administration program. Such changes 
would include modifying the public participation requirements relating 
to some day-to-day grazing management matters, and removing provisions 
authorizing conservation use permits to comply with a Federal Court 
decision.
    The 1995 rule greatly expanded the list of situations in which BLM 
solicits public comment on pending grazing management decisions. This 
has led to BLM focusing scarce staff resources and time primarily on 
managing the public participation process, including organizing and 
updating mailing lists and handling mailings, rather than on conducting 
necessary day-to-day grazing management work such as monitoring 
resource conditions. BLM proposes to retain the interested public 
consultation requirements for the following specific BLM actions:
    1. Apportioning additional forage on BLM managed lands;
    2. Development or modification of a grazing activity plan and other 
BLM land use plans;
    3. Planning of the range development or improvement program; and
    4. Reviewing and commenting on grazing management evaluation 
reports.
    Also retained in the regulations will be the requirement that BLM 
provide the interested public with copies of proposed and final grazing 
decisions and allow them respectively to protest and appeal such 
grazing decisions.
    Although this proposed rule would remove the requirement that BLM 
consult with the interested public about the following administrative 
day-to-day actions, BLM could still consult voluntarily on these 
matters before:
    1. Adjusting allotment boundaries,
    2. Changing grazing preference,
    3. Issuing emergency closures,
    4. Renewing or issuing a grazing permit or lease,
    5. Modifying permits and leases, or
    6. Issuing temporary and non-renewable grazing permits.

    BLM may also consult with permittees and lessees, state and local 
officials, and the interested public on any other matter where the 
authorized officer finds that such consultation would facilitate 
management of grazing on the public lands.
    This change would require consultation with the interested public 
where such input would be of the greatest value, such as when deciding 
vegetation management objectives in an allotment management plan, or 
preparing reports evaluating range conditions. BLM in cooperation with 
the grazing operator, would retain the discretion to determine and 
implement the most appropriate on-the-ground management actions to 
achieve the objectives and/or respond to the conditions. BLM values 
productive consultation with the interested public. However, BLM needs 
some flexibility in order to take responsive, timely, and efficient 
management action without being required to first undertake mandatory 
consultation.
    We received comments asking BLM to remove the term ``interested 
public'' from the regulations and replace the term with ``affected 
interests'' as it appeared prior to the 1995 grazing regulation 
changes. Commenters stated that the involvement of ``interested 
public'' is more appropriate for the broader land use plan process and 
that increased participation from the interested public in day-to-day 
grazing management matters created more work for BLM and resulted in 
substantial program-related backlogs. As discussed above, our proposal 
attempts to address these issues through a change to the definition and 
modifications in requirements to consult with the interested public.
    In order to comply with the 10th Circuit Court of Appeals decision 
in Public Lands Council v. Babbitt, 929 F.Supp. 1436 (D. Wyo. 1996), 
rev'd in part and aff'd in part, 167 F.3d 1287 (10th Cir. 1999), aff'd, 
529 U.S. 728 (2000) the proposed rule would remove language from the 
1995 regulations that allowed BLM to issue conservation use permits. 
The court ruled that the TGA does not authorize BLM to grant 
conservation use permits.
    BLM issues grazing permits and leases to authorize livestock 
grazing on public lands. In contrast, conservation use permits allowed 
a permittee to elect not to graze allotments for the duration of the 
permit, which is typically 10 years. The TGA requires BLM to issue a 
grazing permit expecting a permittee or lessee to use it to graze 
livestock. (167 F.3d at 1307-1308). If the permittee or lessee does not 
plan to graze livestock, BLM can cancel the permit and issue one for 
that allotment to someone who will use it for its intended purpose. 
There are circumstances, however, where it is desirable to allow the 
land to be rested from grazing to protect or improve the condition of 
resources or to allow relatively short periods of nonuse for the 
personal or business needs of the operator.
    The Tenth Circuit Court's decision in Public Lands Council v. 
Babbitt affects another regulatory provision related to ``not grazing 
under a permit.'' BLM can authorize, on an annual basis, permittees and 
lessees to graze less than what is provided for in their permit, 
including not grazing at all. BLM calls

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this practice ``authorized temporary nonuse'' and can allow it for 
purposes of conservation and protection of the public lands, or for 
reasons associated with business or personal needs of the permittee. 
The current regulation limits authorized temporary nonuse to 3 
consecutive years, after which the permittees must graze as much as 
they are authorized in their permit or risk losing the unused portion.
    The 3 consecutive year temporary nonuse limitation rule was 
intended to work in conjunction with the regulation that provided for 
conservation use permits. For example, if the permittee wanted 
authorized temporary nonuse for more than 3 consecutive years, and BLM 
agreed that continuing not to graze the allotment(s) was necessary to 
protect or enhance resources, BLM could replace his ``regular'' permit 
with a conservation use permit. However, because of the 10th Circuit 
Court decision, we no longer have that option, and BLM is limited to 
issuing ``regular'' permits only. The current regulations limit 
authorized temporary nonuse to 3 consecutive years. Therefore, BLM must 
require permit holders to use the grazing permit at the end of the 3 
years even if both the permittee and BLM wish to continue the nonuse 
for resource stewardship purposes. BLM proposes not to require grazing 
use of a permit when both the BLM and permittee agree that temporary 
nonuse is needed for resource stewardship reasons. Although we propose 
to remove the 3-consecutive-year limitation on authorized nonuse if the 
purpose of the nonuse is for resource stewardship reasons, we realize 
that some may wish to acquire a permit and not use it indefinitely, 
despite the 10th Circuit Court's decision that BLM cannot issue grazing 
permits not to graze. Where land use plans provide that an acceptable 
use of the public lands is domestic livestock grazing, then BLM will 
manage those lands for grazing in accordance with the land use plan.
    Failing to ``make substantial grazing use as authorized for two 
consecutive fee years'' is prohibited under current grazing 
regulations. BLM does not propose to amend this provision in this rule. 
BLM may deny nonuse of a permit if the permittee cannot justify that 
nonuse is for resource stewardship or personal or business reasons. If 
BLM denies nonuse, and the permittee does not graze livestock as 
allowed under the permit for two years in a row, the permit or portion 
of the permit that is not used is subject to cancellation and would be 
available for awarding to another applicant. (These same principles 
pertain to leases.) The changes to nonuse provisions that BLM is 
proposing today would provide that BLM could authorize nonuse for no 
longer than one year at a time, but could repeat such annual 
authorizations for more than 3 consecutive years.
    We considered many of the substantive issues that were raised 
during the scoping period and have incorporated several of these as 
alternatives in the draft EIS. We did not address, however, some of the 
issues that commenters raised because they are either beyond the scope 
of the document, did not meet the basic purposes of these proposed 
changes to the regulations, or BLM decided we could better address the 
issues through policy.
    The following are issues we considered but do not address in this 
proposed rule:
    [sbull] Increasing grazing fees and restructuring grazing based on 
market demand are outside the scope of this proposed rule.
    [sbull] Reestablishing BLM grazing advisory boards to provide local 
advice and recommendations to BLM on grazing issues is not addressed 
because BLM grazing advisory boards were ``sunset'' on December 31, 
1985, by FLPMA. This proposed rulemaking, however, would provide that 
BLM cooperate with state, county or locally established grazing boards 
in reviewing range improvements and allotment management plans on 
public lands. This review would supplement the counsel of Resource 
Advisory Councils that BLM established in 1995 to advise BLM and 
recommend strategies for managing public lands under our multiple-use 
mandate.
    [sbull] Modifying management of wild horses and burros or making 
any changes to The Wild Horse and Burro Act or its implementing 
regulations are outside the authority and scope of this proposed rule. 
Issues involving allocation of forage are addressed in land use plans.
    [sbull] Counting 7 sheep, rather than the current 5, as the 
equivalent of one animal unit for the purposes of calculating grazing 
fee billings are not addressed because matters involving the grazing 
fee are outside the scope of this proposed rule.
    [sbull] Establishing and managing Reserve Common Allotments is not 
addressed in this proposed rule. In the ANPR, BLM stated that we were 
considering proposing provisions to define, establish a regulatory 
framework, and otherwise support the creation of Reserve Common 
Allotments. BLM has decided not to proceed with developing Reserve 
Common Allotments at this time. During BLM's public scoping period many 
commenters expressed concern about adding special provisions for 
Reserve Common Allotments in the grazing regulations. Many commenters 
said they did not think such regulatory provisions were warranted. 
Ranching interests indicated they would rather have ``normal'' 
allotments while environmental interests questioned whether this would 
be the best use of the land. After considering the reception to this 
concept, BLM determined it was not in the public interest to proceed 
with this provision through regulations. BLM will continue to examine 
the concept of forage reserves through policy-making processes.
    [sbull] Removing the grazing fee surcharge is not addressed in this 
proposed rule. The 1995 regulations added a grazing fee surcharge to 
address the concerns raised by the General Accounting Office and Office 
of the Inspector General regarding the potential for rancher ``windfall 
profits'' arising from BLM's practice of allowing for the subleasing of 
public land grazing privileges. Some BLM grazing permittees enter 
pasturing agreements allowing them to take temporary control of a third 
party's livestock and graze them under their permit or lease. The 
permittee pays the federal grazing fee and charges the third party an 
amount negotiated between them for the forage and care of the 
livestock. BLM assesses a fee surcharge in this circumstance that 
equals 35 percent of the difference between the current Federal grazing 
fee and private grazing land lease rates with one exception. BLM does 
not assess the surcharge when the livestock that are grazed under the 
permit or lease under a pasturing agreement belong to children of the 
permittee or lessee under certain circumstances set out under section 
4130.7(f). BLM is not proposing to alter the existing surcharges for 
the following reasons:
    1. BLM continues to believe that the surcharge is an equitable 
manner in which to address the issue of potential windfall profits to 
BLM permittees and lessees who choose to enter into pasturing 
agreements, and
    2. BLM does not want to open issues related to grazing fees at this 
time.
    [sbull] Assigning burden of proof to the BLM for appeals is not 
addressed in this proposed rule. BLM considered including a provision 
in the proposed rule requiring the BLM to assume the burden of proof 
for all appeals before the Office of Hearings and Appeals. The burden 
of proof has been clarified by the Supreme Court to mean the ``burden 
of persuasion'' which refers to ``the notion that if evidence is evenly 
balanced, the

[[Page 68456]]

party who bears the burden of persuasion must lose.'' (Director, Office 
of Workers' Compensation Programs, Department of Labor v. Greenwich 
Collieries, 512 U.S. 267, 272 (1994)). Often, the burden of proof had 
been confused with the ``burden of production,'' which refers to a 
party's obligation to come forward with evidence to support its claim. 
The burden of proving a fact remains where it started, but once the 
party with this burden establishes a prima facie case, the burden to 
produce evidence shifts. The burden of persuasion, on the other hand, 
does not shift except in the case of affirmative defenses. Decisions of 
the Interior Board of Land Appeals (IBLA) hold that a party appealing a 
BLM decision has the burden of showing the error in the agency's 
decision. If, for example, the agency denies a permit or lease to a new 
grazing applicant, that applicant would be expected to point out the 
error in BLM's decision. Because each case must be analyzed on its own 
facts, BLM is not proposing to change our regulations to assign the 
burden of proof for all appeals.
    [sbull] Changing the definition of monitoring and the process for 
conducting monitoring is not addressed in this proposed rule. Few 
comments directly addressed the definition of ``monitoring'' and those 
we did receive did not recommend any substantive changes in the 
definition. Therefore we are not proposing changes to the definition of 
monitoring. Many comments contained recommendations on how BLM should 
conduct monitoring. We received many comments from the livestock 
industry, and environmental and conservation groups, asking BLM to 
increase monitoring efforts on public lands. BLM considered including 
new regulatory language regarding monitoring that would have contained 
explicit direction on the development of allotment-specific resource 
management objectives and short and long term monitoring programs in 
consultation with the permittee or lessee. The current regulations, 
however, already allow BLM to develop resource management objectives 
and monitoring plans as part of its allotment management plans. As a 
result, we determined that establishing monitoring methodologies and 
working with permittees and lessees in collecting and interpreting data 
and developing monitoring reports are more appropriately handled 
through BLM's own policy guidance in Manuals and Handbooks. Therefore, 
BLM has decided not to incorporate details on how to monitor in the 
proposed rule. We have, however, added a requirement for monitoring in 
making determinations on rangeland health.
    [sbull] Requiring permittees or lessees to submit an application 
for renewal of their permit or lease when their permits or leases 
expire is not explicitly addressed in the current regulations nor 
incorporated in the proposed regulations. We are especially interested 
in public comment on this issue.
    [sbull] Adding another opportunity for administrative remedy by 
allowing a protesting party to appeal a BLM field office decision to 
the BLM State Director was recommended by several commenters during 
scoping. Such a provision would allow the BLM State Director to stay a 
decision pending further review. BLM determined it was not advisable to 
include this provision in the proposed rule. Such authority could cause 
the appeals process to become too cumbersome and result in more delays 
in the decision-making process.
    [sbull] Providing for permittees and lessees to have control of 
water developments authorized under a range improvement permit was 
recommended by commenters during scoping. The current regulations do 
not allow for water developments to be authorized under a range 
improvement permit. Other commenters suggested that the rule should 
propose that BLM allow the permittee or lessee to enter into a 
Memorandum of Understanding with the BLM allowing the improvements to 
be used other than by livestock owned or controlled by the permit 
holder. BLM does not believe these regulatory changes are necessary and 
therefore will not address them in this proposed rule. We believe we 
can better address these issues in BLM policy and guidance.
    [sbull] Establishing criteria for BLM's use of full force and 
effect decision authority was recommended by some commenters during 
scoping. BLM believes that full force and effect decisions are fact-
specific, so that it would be impossible to establish criteria to 
address each conceivable new decision. We disagree that developing 
criteria is necessarily helpful or relevant to the decision to issue a 
full force and effect decision to protect resources.
    [sbull] Allowing for exchange of use agreements across allotments 
was recommended during scoping. Under the existing regulations, an 
exchange-of-use situation occurs where the permittee owns or controls 
unfenced private lands within the allotment where he grazes or wishes 
to graze. The permittee may request to graze additional livestock on 
the allotment to reflect the amount of forage on the private land. If 
BLM authorizes the additional grazing, all the authorized livestock may 
graze anywhere within the allotment, and BLM will not charge grazing 
fees for the extra livestock. BLM received comments requesting that BLM 
expand this authority to accommodate a transaction called ``trade of 
use'' by removing the requirement that private lands in the exchange-
of-use situation be located in the same allotment being permitted for 
grazing. This kind of case might arise in the situation where one 
permittee or lessee owns or controls unfenced intermingled private 
lands that are not within his allotment, but rather, within a second 
permittee's allotment.
    The first permittee cannot derive economic gain from the grazing 
use made on his private lands by the second permittee, unless either--
    (1) The first permittee acts to control use of his own land, by 
means of fencing or through sale of the land or assignment of the land 
lease for a consideration to the second permittee; or
    (2) BLM manages the second permittee's grazing on the first 
permittee's private land, which BLM currently does not have regulatory 
authority to do.
    A commenter urged that BLM facilitate the ``trade-of-use'' between 
these permittees by collecting a grazing fee from the second permittee 
for grazing use of lands owned by the first permittee but located in 
the second permittee's allotment, and crediting the fees collected from 
the second permittee for these lands to the first permittee's grazing 
fee billing. BLM believes that this type of arrangement is best handled 
by private arrangement between the permittees, but we encourage 
additional comments as to whether BLM should set up a separate process 
for such ``trade of use'' arrangements, or act as a broker between 
grazers on such transactions affecting private lands, perhaps for a 
service charge.
    [sbull] Allowing BLM to have unrestricted discretion to determine 
circumstances that would warrant non-monetary settlement of a non-
willful grazing trespass was recommended by a commenter during scoping. 
The current regulations identify the following four conditions--all of 
which must be satisfied before BLM can approve a non-monetary 
settlement for non-willful unauthorized livestock use:
    1. Evidence that unauthorized use occurred through no fault of the 
operator.
    2. The forage used was insignificant.
    3. Public lands have not been not been damaged.

[[Page 68457]]

    4. Non-monetary settlement is in the best interest of the United 
States.

    We believe this continues to be a reasonable approach, and 
therefore BLM has decided not to change this provision.
    [sbull] Removing the requirement for Secretarial approval of 
amendments to regional standards for healthy rangelands was not 
addressed in this proposed rule. BLM received a comment urging that we 
revise the process for approving standards for rangeland health to 
allow approval of revisions to the standards by BLM State Directors. 
BLM believes that the requirement for Secretarial approval of standards 
that BLM State Directors develop ensures that the basic components of 
rangeland health are reflected in the regionally developed standards. 
We are not proposing any changes to the applicable provisions of the 
current regulations.
    [sbull] Allowing grazing operators, when authorized by BLM, to 
temporarily lock gates on public lands when necessary to protect 
private property or livestock was initially considered for 
incorporation in this proposed rule. Comments during the scoping were 
nearly unanimously in opposition to this suggestion. This proposed rule 
does not include this provision.
    [sbull] Using competitive bidding for assigning permits and leases 
in place of the current system for allocating grazing preference, 
assigning grazing permits and the present grazing fee formula was 
recommended by several commenters. This recommendation would require 
legislative action and is therefore beyond the scope of this proposed 
rule.
    [sbull] Requiring the posting of a bond before filing an appeal was 
recommended by several commenters. BLM considered the implications and 
potential challenges to such a provision, and determined that such a 
provision would burden the general public as well as permittees and 
lessees. Therefore, it is not included in the proposed rule.
    [sbull] Moving the general requirements in section 4180 related to 
the fundamentals of rangeland health and public land health standards 
and guidelines to BLM's planning regulations at 43 CFR 1610 was 
recommended during scoping. BLM did not consider such an expansion of 
the scope of this rulemaking appropriate at this time, and therefore it 
is not included in the proposed rule.
    Whenever BLM proposes changes to these regulations, we are 
continuing a public dialogue. These proposed changes seek to keep 
administrative processes as simple, understandable, and flexible as 
possible.
    When we developed proposed changes to the grazing regulations, we 
considered whether each specific change facilitates any of the 
following:
    1. Promoting cooperation, especially with directly affected 
permittees and landowners;
    2. Promoting practical mechanisms for protecting rangeland health; 
and
    3. Improving administrative efficiency.
    By incorporating these criteria, BLM can improve the regulations 
while creating a climate for communication and cooperation. Working 
together, BLM, and the public we serve, can obtain better information 
about observed trends in the vegetative communities of the West. BLM 
can improve some of the administrative processes so that we can sharpen 
our focus on the issues that are truly in need of attention as we seek 
to conserve the rural landscapes of the West.

IV. Section-by-Section Analysis

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 delegation of authority to perform the 
duties described in this proposed rule.

Section 4100.0-2 Objectives

    The proposed rule would remove reference to 43 CFR part 1720, 
subpart 1725, to reflect changes made to the regulations in 1994 (59 
F.R. 29206). Today's proposal acknowledges that the Public Rangelands 
Improvement Act (PRIA) contributes to the objectives of the 
regulations. These are technical and editorial corrections.

Section 4100.0-3 Authority

    The proposed rule would make 3 editorial corrections to this 
section. These are non-substantive and would not change the existing 
regulations.

Section 4100.0-5 Definitions

    During the scoping period, BLM received public comments addressing 
specific definitions. Several commenters asked BLM to keep all current 
terms consistent with their use, definition, and intent in the TGA. The 
following describes the proposed changes in definitions and the 
rationale for each change.
    Active use: BLM proposes amending this definition to make clear 
that the term refers to a forage amount based on the carrying capacity 
of, and resource conditions in, an allotment. The term does not refer 
to forage that had been allocated in the past but which BLM has 
determined is no longer present. We now consider such forage to be in 
suspension, not in active use. The current definition of ``active use'' 
includes ``current authorized use including livestock grazing and 
conservation use.'' BLM must remove conservation use from the 
definition because of the 1999 10th Circuit Court decision in Public 
Lands Council v. Babbitt.
    The 1995 final rules defined conservation use as ``authorized 
active use,'' in contrast to ``nonuse'' and ``suspended use'' even 
though the term conservation use did, by definition, exclude livestock 
grazing. The 1995 definition used the term livestock grazing to 
distinguish between ``active'' authorized grazing use and ``active'' 
authorized conservation use. Removing conservation use from this 
definition eliminates the need for this distinction. We propose that 
the amended definition of active use refer to that portion of grazing 
preference (see proposed definition, this section) that is now 
available for livestock grazing use based on the known livestock 
carrying capacity of the rangeland and the resource conditions in an 
allotment under a permit or lease. The definition would make it plain 
that ``suspended use'' is not active use.
    Conservation use: The proposed rule would remove the term 
conservation use, from the definition of ``active use,'' and anywhere 
else it appears in the existing regulations, in keeping with the 10th 
Circuit Court decision discussed above. Removing the term conservation 
use includes revising the definitions of grazing lease and grazing 
permit to remove all references to conservation use.
    Grazing lease: In addition to removing conservation use, BLM 
proposes editorial changes to this definition to make it easier to 
read. These changes will not substantively change the current 
regulations. Several commenters stated that the original meaning of 
``grazing lease'' comes from the TGA and has been subsequently changed 
and therefore, BLM should restore it. The definition is consistent with 
the TGA. We intend only to make it clear that BLM issues grazing leases 
to authorize grazing on lands that are not within grazing districts 
established under the

[[Page 68458]]

TGA, and that these leases include both mandatory terms and conditions 
(livestock number, place of use, period of use, and amount of forage 
removal), and other terms and conditions of grazing use.
    Grazing permit: In addition to removing conservation use, BLM 
proposes editorial changes in this definition to make the section 
easier to read. BLM intends to make it clear that BLM issues grazing 
permits authorizing grazing within grazing districts established under 
the TGA. These permits include both mandatory terms and conditions 
(livestock number, place of use, period of use and amount of forage 
removal), and other terms and conditions of grazing use. Several 
environmental and conservation advocacy groups said this term was 
adequately addressed in the last rulemaking effort and they do not 
think BLM is justified in changing it now. As with the term ``grazing 
lease,'' this change is only to clarify and standardize, not 
substantively change, this definition. We are not making substantive 
changes to this definition other than removing the term conservation 
use.
    Grazing preference or preference: BLM is proposing to define 
``grazing preference'' or ``preference'' as: ``the total number of 
animal unit months (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. Grazing preference includes active use 
and use held in suspension. Grazing preference holders have a superior 
or priority position against others for the purpose of receiving a 
grazing permit or lease.''
    This definition is similar to the definition in the grazing 
regulations in 1978, which was used until the 1995 rule changes. The 
1995 definition, which changed preference from a term having a 
quantitative meaning (number of AUMs) to a qualitative meaning 
(superior position), has proven to be confusing. We believe that 
returning to its long standing meaning will provide greater clarity 
throughout the regulations.
    The concept of grazing preference, as we would define it in this 
rulemaking, includes two elements:
    1. Livestock forage allocation on public lands.
    2. Priority for receipt of that allocation, as determined through 
ownership or control of attached base property.
    BLM is proposing to define grazing preference as the total number 
of AUMs within a grazing allotment that BLM has allocated for livestock 
use. This forage amount would include ``active use,'' use that is 
currently available, and ``suspended use,'' that is, use that had been 
allocated and used by the permittee or lessee, or a predecessor, but 
that currently is not available and therefore the subject of a BLM 
suspension. These apportioned forage amounts would be attached to base 
property. Base property, in turn, is land or water owned or controlled 
by a permittee, lessee, or party who holds or has applied for a permit 
or lease.
    Ownership or control of base property gives the owner or person 
controlling the property a preference for receiving a grazing permit or 
lease authorizing grazing use to the extent of the active preference 
already ``attached'' to that property, and priority for receipt of 
forage that BLM may later determine to be available for livestock 
grazing to the extent of any suspended preference that may be attached 
to that property. Attaching or associating a public land forage 
allocation to or with base property provides a reliable and predictable 
way to connect ranch property transactions with the priority for use of 
the public land grazing privileges that BLM associates with that 
property. This has been the basis for BLM's system of tracking who has 
priority for receipt of public land grazing privileges since the 
enactment of the TGA.
    The ranch property transaction alone, however, does not provide 
absolute assurance of receiving the privileges, for two reasons:
    (1) TGA provides that only certain parties qualify for grazing use 
on public lands. Therefore, if an unqualified party acquires a base 
property, BLM would not issue the party a term grazing permit or lease, 
regardless of the preference for public land grazing use associated 
with the base property that the party acquired; and
    (2) The forage amount available for livestock grazing use on public 
lands can fluctuate because of changed resource conditions or changed 
administrative or management circumstances. When necessary, BLM may 
adjust the amount of forage available for livestock grazing. Case law 
has determined that BLM land use planning decisions may adjust 
livestock forage allocations made before enactment of the Federal Land 
Policy and Management Act of 1976 to change grazing use to meet 
objectives specified in land use plans (see, for example, Public Lands 
Council v. Babbitt, 529 U.S. 728, 739-744 (2000)).
    The 1978 definition of ``grazing preference'' was crafted to meet a 
specific need. Pre-FLPMA public land livestock forage allocations were 
linked to base property productivity. This means that among applicants 
competing for grazing privileges on public lands BLM would not grant 
privileges to support livestock in excess of the number that they could 
support on their base property during the time that their livestock 
were not allowed on public lands. The connection between this base 
property productivity, called ``commensurability,'' and the amount of 
grazing privileges granted on public lands was severed by the 1978 
regulation change (the same change that defined, for the first time, 
the term ``grazing preference''). The 1978 rule provided that BLM would 
associate public land grazing privileges with private base properties 
on a pro-rata acreage basis, rather than on base property productivity.
    This change simplified BLM's record-keeping needs. However, the 
commensurability requirement served as a guidepost for fair and 
consistent allocation of available forage. To ensure that the record of 
allocation was preserved, BLM defined the term ``grazing preference.'' 
Attaching Federal grazing privileges to base properties has been and 
continues to be the foundation for adjudicating these privileges. BLM 
has always had the authority and discretion to adjust grazing levels on 
public lands. The proposed change will once again associate the term 
``preference'' with an amount of allocated forage on public land.
    Today's proposed change would ensure that the term ``preference'' 
is used consistently. For example, 43 CFR 4110.2-3 (4) states, 
regarding the transfer of preference, that ``The transferee shall file 
an application for a grazing permit or lease to the extent of the 
transferred preference * * *'' although preference is defined in the 
same regulations as a ``priority position,'' that is, a singular 
quality. One either has a priority position or one does not. It is not 
possible to define the ``extent'' of a ``priority position'' in terms 
of anything but a level or amount, and in the context of the remainder 
of the rule, that would mean a level or amount of forage.
    Another inconsistency arises if one considers the circumstance of a 
parcel of base property owned by one party, giving that party a 
priority position (preference), which is subdivided and half sold to 
another party. Then, the single ``preference'' accorded the sole owner 
now is split into two ``preferences'' because the second party now is 
accorded preference due to its ownership of base property. The proposed 
change to this definition and

[[Page 68459]]

its usage throughout the rule should provide a consistent framework for 
the efficient administration of the public rangelands.
    Interested public: BLM proposes amending the present definition to 
mean an individual, group, or organization that has:
    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
    2. Followed up that request by commenting on or otherwise 
participating in the decision-making process as to the management of a 
specific allotment if there has been an opportunity for such 
participation, or
    3. Submitted written comments to the authorized officer regarding 
the management of livestock grazing on a specific allotment, as part of 
the process leading to a BLM decision on the management of livestock 
grazing on the allotment.
    Permitted Use: BLM proposes removing the definition of ``permitted 
use'' and replacing this term wherever it occurs in the regulations 
with either ``grazing preference'' or ``preference,'' or ``active use'' 
depending on the regulatory context. ``Permitted use'' was introduced 
as a term in the 1995 regulations change to define an amount of forage 
allocated by a land use plan for livestock grazing in an allotment. It 
is expressed in AUMs and includes ``active use'' (which was further 
divided into ``livestock use'' and conservation use) and ``suspended 
use.'' As discussed above, BLM is proposing to return to using the term 
``grazing preference'' or ``preference'' to refer to that same 
livestock forage allocation. Therefore, there is no need for the term 
``permitted use.'' Grazing preference would have two components:
    1. ``Active use,'' or use currently available on a sustained yield 
basis, and
    2. ``Suspended use,'' or use that had been allocated and available 
for livestock grazing at some point in the past, but is now in 
suspension until BLM determines that an increased amount of forage is 
available on a sustained yield basis for allocation to livestock 
grazing.
    Although the connection between land use plans and grazing 
preference would not be stated in the definition of ``grazing 
preference'' or ``preference'' as it is being proposed today, the 
regulatory text would reflect the relationship between ``active use'' 
and land use plans at Sec. Sec.  4110.2-2, 4110.3(a)(3), and 4110.3-1 
and between grazing permits and leases and land use plans at Sec.  
4130.2.
    Suspension: BLM proposes to remove the word ``temporary'' from the 
current definition because the word is superfluous. The status of 
suspended preference is not affected.
    Temporary nonuse: BLM proposes making it clear that ``temporary 
nonuse'' would mean that portion of active use that BLM allows a 
permittee or lessee not to use. The permittee or lessee must apply for 
temporary nonuse.

Subpart 4110--Qualifications and Preference

Section 4110.1 Mandatory Qualifications

    We revised this section by moving parts of paragraph (b) and all of 
paragraph (c), which relate to procedure as opposed to qualifications, 
to section 4130 and redesignating paragraph (d) as paragraph (c).

Section 4110.2-1 Base Property

    The proposed rule makes editorial changes to this section.

Section 4110.2-2 Specifying Grazing Preference

    BLM proposes removing the term ``permitted use'' wherever it occurs 
in this section and replacing it with the term ``grazing preference'' 
or ``preference'' for the reasons previously explained. BLM does not 
establish a grazing preference in designated ephemeral or annual 
rangelands because the forage production on these lands can vary 
greatly from year to year. On these rangelands, BLM bases the 
authorized forage removal amount on the availability of forage in that 
year. As stated earlier, BLM also proposes that grazing preference 
would include active use and any suspended use.

Section 4110.2-3 Transfer of Grazing Preference

    The proposed rule would make editorial changes to this section to 
conform the rule to the definition of ``grazing preference.''

Section 4110.2-4 Allotments

    BLM proposes to remove 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. BLM 
would provide the interested public an opportunity to comment on the 
action as part of the NEPA process. The interested public would also 
receive a copy of the proposed and final decisions, including those on 
allotment boundary adjustments, and would be able to protest and appeal 
such decisions. This change would contribute to administrative 
efficiency as discussed above under changes to section 4100.0-5, 
Definitions.

Section 4110.3 Changes in Grazing Preference

    BLM proposes to remove the term ``permitted use'' wherever it 
occurs in this section and replace it with the term ``grazing 
preference'' for the reasons explained previously. BLM also proposes to 
simplify this section by dividing the existing text into two paragraphs 
and adding a third paragraph to clarify that our NEPA documentation 
addressing changes in grazing preference would include our 
consideration of the effects of changes in grazing preference on 
relevant social, economic, and cultural factors.
    Generally, BLM managers routinely consider the possible effects of 
their decisions on these factors through the NEPA process. Public 
officials use the NEPA process to understand the environmental 
consequences of potential decisions affecting the human environment. 
NEPA (42 U.S.C. 4321 et seq.) requires Federal agencies to utilize a 
systematic, interdisciplinary approach to ensure the integrated use of 
the natural and social sciences and the environmental design arts in 
planning and in decision-making. In the proposed rule, BLM would 
analyze and, if appropriate, document the relevant social, economic and 
cultural effects of the proposed action. BLM is proposing the change to 
ensure that our managers document their consideration of relevant 
social, economic, and cultural factors when they comply with NEPA.

Section 4110.3-1 Increasing Active Use

    In the 1995 rule, section 4110.3-1 addressed ``permitted use.'' 
This proposed amendment addresses that portion of the livestock forage 
allocation that is ``active use'' as explained in the discussion of its 
definition. This change is necessary to link the proposed definitions 
of ``preference'' and ``suspended use.'' BLM proposes to remove the 
term ``permitted use'' from this section wherever it appears and 
replace it with the term ``active use'' for the reasons explained 
previously.
    Because the regulation would affect how we regulate available 
forage, we are asking the public to comment on whether BLM should use 
the term ``available forage'' instead of ``active use.''
    BLM is also asking for specific comments relating to this section 
to help determine whether there have been

[[Page 68460]]

situations in which the ability of permittees or lessees to obtain 
loans was adversely affected by having some of their forage allocation 
suspended.
    BLM also proposes to reorganize this section to describe how we 
would authorize increased grazing use when additional forage is 
available either temporarily, or on a sustained yield basis. BLM 
proposes to add two new paragraphs, (a) and (b), that would clarify who 
gets priority when we grant additional grazing use because livestock 
forage has become available on either a nonrenewable basis or a 
sustained yield basis. This change would clarify existing language and 
does not substantially depart from the requirements of the existing 
regulations.

Section 4110.3-2 Decreasing Active Use

    BLM proposes replacing the term ``permitted use'' with the term 
``active use'' wherever it occurs in this section. BLM is proposing to 
clarify this section by amending paragraph (a) to provide that BLM will 
document its observations that support the need for temporary 
suspension of active use and by amending 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. BLM wants to 
ensure that it clearly documents the justification for the suspension 
and believes that it is important to maintain a complete record of 
forage allocation actions so that it may fairly remove suspensions upon 
future range recovery.

Section 4110.3-3 Implementing Changes in Active Use

    BLM proposes changing the title of this section to reflect that it 
pertains to both increases and decreases grazing use and to add 
language to this section to modify how BLM would implement changes in 
active use. This section would provide that BLM would phase in changes 
in active use of more than 10 per cent over a 5-year period unless 
either the affected permittee or lessee agrees to a shorter period or 
the changes must be made before the end of 5 years to comply with 
applicable law. When possible, the 5-year phase-in period for changes 
in active use would provide time for gradual operational adjustments by 
grazing permittees or lessees to lessen sudden adverse economic impacts 
that may arise from a reduction, or to allow time to build their herd 
in the event of an increase. The phase-in period also allows for 
ongoing monitoring in order to determine whether the initial decision 
needs to be adjusted. This 5-year phase in period is similar to that 
specified by the regulations in effect before 1995.
    BLM also proposes amending paragraphs (a) and (b) by removing the 
phrase ``the interested public'' from this section. Any change in 
active use would be preceded by reports, including NEPA documents, that 
analyze data that BLM would use to support the change. Under section 
4130.3-1, BLM would provide the interested public the opportunity to 
comment on these reports. Under section 4160.1 BLM would provide 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.

Section 4110.4-2 Decrease in Land Acreage

    BLM proposes removing the term ``permitted use'' from this section 
and replacing it with the term ``grazing preference'' for the reasons 
explained previously.

Subpart 4120--Grazing Management

Section 4120.2 Allotment Management Plans and Resource Activity Plans

    BLM proposes to revise paragraph (c) for clarity only.

4120.3 Range Improvements

4120.3-1 Conditions for Range Improvements

    BLM proposes to revise paragraph (f) for clarity and to correct a 
citation to NEPA. The change is not substantive.

4120.3-2 Cooperative Range Improvement Agreements

    BLM proposes to revise paragraph (b) to provide that, subject to 
valid existing rights, cooperators and the United States would share 
title to permanent structural range improvements constructed under 
cooperative range improvement agreements on public lands. Such 
structural improvements include wells, pipelines, or fences constructed 
on BLM managed public lands. BLM is proposing to revise the regulations 
to allow contributors to share title to range improvements of public 
lands proportionate to the value of their contributed labor, material, 
or equipment to make on-the-ground structural improvements, subject to 
valid existing rights. This would return the provision on how title for 
improvements constructed under Cooperative Range Improvement Agreements 
is shared to that in place before 1995.
    During scoping, BLM received comments supporting and opposing the 
revision. Some opponents to the revision commented that, by re-
instituting shared title to range improvements, BLM would be allowing 
private property rights on public lands. Some commenters supported the 
provision, stating that it gives livestock operators, who pay for and 
construct improvements, incentive to invest funds, time, and effort in 
their allotments.
    The current regulations provide that the United States has title to 
new permanent structural range improvements. BLM has the discretion in 
administrating the public rangelands to determine where title to range 
improvements should lie. 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. Granting title to a structural 
improvement on public lands does not grant title to the underlying 
lands. Cooperative Range Improvement Agreements will 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.

Section 4120.3-3 Range Improvement Permits

    BLM must remove the term conservation use from this section to 
comply with the decision of the Tenth Circuit Court of Appeals.

Section 4120.3-8 Range Improvement Fund

    BLM is proposing to amend this section only to correct a 
misspelling.

Section 4120.3-9 Water Rights for the Purpose of Livestock Grazing

    BLM proposes to amend this section by removing the reference date 
in the first sentence and the second sentence in total. This would 
remove 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. The proposed amendment would 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. In those 
states, BLM would continue to have the option of acquiring the water

[[Page 68461]]

right as long as we do so in compliance with state water law.

Section 4120.5-2 Cooperation with State, County, and Federal Agencies

    BLM proposes amending this section by making an editorial 
correction and adding a new paragraph (c) to specify that BLM would add 
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. Currently BLM's 
Resource Advisory Councils provide advice to BLM on the broad range of 
multiple use activities on public lands including grazing management. 
Field-level range improvement and allotment management planning 
programs would also benefit from the additional perspective that 
locally established grazing advisory boards could provide.
    Many states have state, county, or locally established grazing 
advisory boards whose function is to provide guidance on range 
improvements on public lands. Section 401(b)(1) of FLPMA states that a 
portion of the grazing fees BLM collects are set aside for range 
betterment. BLM is authorized to use one-half the amount collected from 
the area in which the moneys were derived. BLM may direct these funds 
after consulting with local area user representatives, to implement on-
the-ground range rehabilitation, protection, and improvements on the 
lands.
    Grazing interests and state and local governments expressed concern 
that BLM has not used state, county, and locally established grazing 
advisory boards effectively. They commented that these grazing advisory 
boards are underutilized, yet are a valuable tool for gathering local 
input for BLM's decision-making processes related to range improvements 
and allotment management planning. This proposed rule would require BLM 
to cooperate with state, county, or locally established grazing 
advisory boards when reviewing range improvements and allotment 
management plans on public lands. A requirement for BLM to cooperate 
with such boards would ensure a consistent community-based decision-
making process throughout the BLM.

Subpart 4130--Authorizing Grazing Use

Section 4130.1-1 Filing Applications

    The existing regulations are somewhat unclear as to the 
circumstances under which BLM will consider an applicant for a new 
permit or lease not to have a satisfactory record of performance.
    The existing regulations state that we deem applicants for renewals 
of permits and leases not to have a satisfactory record of performance 
if:
    1. They have had a Federal lease canceled within the previous 36 
months;
    2. They have 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. They have been legally barred from holding a grazing permit or 
lease.
    Under the proposed regulations BLM would limit the number of 
possible infractions that we would take into account for determining 
whether an applicant for a new permit has a satisfactory record of 
performance. The proposed rule would deem 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.
    In addition, BLM proposes moving provisions specifying what we 
consider to be ``satisfactory performance'' by an applicant for a 
permit or lease from section 4110.1 to this section to better organize 
the regulations.

Section 4130.2 Grazing Permits or Leases

    BLM proposes revising this section to make it clear that the 
grazing permit or lease is the document BLM uses to authorize grazing 
use for those who hold grazing preference on BLM-managed lands. BLM has 
been questioned about what we consider to be the fundamental document 
authorizing preference holders' grazing use. This section makes it 
clear that it is the permit or lease that authorizes such grazing use 
and no other document. An example of such a non-authorizing document is 
a paid grazing fee billing. Although not paying a fee when it is due is 
a prohibited act, the document upon which BLM bases fees, either a 
permit or lease, is the document that authorizes the grazing use, not 
the billing. BLM also uses ``other grazing authorizations'' such as 
free use permits, exchange-of-use permits, and crossing permits to 
authorize grazing for preference and non-preference holders in limited 
circumstances. These are addressed in Sec. Sec.  4130.5 and 4130.6.
    We propose removing the phrase ``types and levels of use 
authorized'' from paragraph (a) and replacing it with the term 
``grazing preference'' because the level of use, the forage amount 
expressed in AUMs, and the ``type'' of use, whether active or 
suspended, are embodied in the term ``grazing preference.''
    We also propose removing the requirement in paragraph (b) that BLM 
would consult, cooperate, and coordinate with the interested public 
prior to the issuance or renewal of grazing permits and leases because 
this consultation is redundant to consultation that already would have 
occurred as part of the process of completing NEPA analysis and other 
documentation that is pre-requisite to permit or lease issuance or 
renewal.

Section 4130.3 Terms and Conditions

    BLM proposes adding a new paragraph to this section to specify that 
when BLM offers a permit or lease, the terms and conditions may be 
protested and appealed unless the terms and conditions are not subject 
to OHA appeals (e.g. terms and conditions mandated by a biological 
opinion issued under the Endangered Species Act) or terms and 
conditions that are part of a permit or lease offered for grazing use 
on additional land acreage (see 4110.1). The proposed rule further 
states that if those terms and conditions are stayed, BLM could 
authorize grazing use in accordance with section 4160.4. By adding this 
language, BLM seeks to clarify that we are providing the opportunity to 
protest and appeal decisions that specify the terms and conditions of 
the permit or lease we are offering.

Section 4130.3-2 Other Terms and Conditions

    BLM proposes removing paragraph (h) from this section because it is 
unnecessary. There is no need to disclose on the permit or lease the 
requirement that the permittee or lessee provide administrative access 
to BLM. The absence of such disclosure under the proposed rule would 
not affect the underlying requirement. In 1999 IBLA held that 
administrative access is an implied condition of a grazing permit 
whenever administrative access is necessary in order for BLM to carry 
out its statutory responsibilities on the public lands. (IBLA 98-180R; 
98-404R)

[[Page 68462]]

Section 4130.3-3 Modifications of Permits or Leases

    BLM proposes to amend this section to make it clear that BLM may 
modify terms and conditions of a permit or lease if we determine that 
either the active use or related management practice is no longer 
meeting the management objectives specified in the land use plan, an 
allotment management plan, or an applicable decision issued under 
section 4160.3. In addition, BLM is removing the regulatory requirement 
that we consult with the interested public on any decisions to modify 
terms and conditions on a permit or lease for the reasons discussed 
previously.
    In the proposed rule the interested public retains, to the extent 
practical, the opportunity to review and provide input on reports 
supporting BLM's decisions to increase or decrease grazing use. In 
clarifying this provision, BLM recognizes that the interested public, 
permittees and lessees, and the state should all have opportunity to 
review and submit input to Biological Assessments when they are used to 
supplement grazing management evaluations.
    BLM also proposes to reorganize this section for the sake of 
clarity and logical flow.

Section 4130.4 Authorization of Temporary Changes in Grazing Use Within 
the Terms and Conditions of Permits and Leases

    BLM is proposing to amend section 4130.4 to provide additional 
detail on what is meant by the phrase ``within the terms and conditions 
of the permit or lease.'' BLM proposes that when we refer to 
``temporary changes within the terms and conditions of the permit or 
lease,'' we mean changes to the number of livestock and period of use 
that BLM may grant in any one grazing year. We would authorize such 
changes in response to annual variations in growing conditions that 
arise from normal year-to-year fluctuations in temperature and the 
timing and amounts of precipitation and to meet locally established 
range readiness criteria. Under the proposed regulations, ``within the 
terms and conditions of a permit or lease'' means that grazing use 
will:
    1. Not result in removing more forage than the ``active use'' 
specified by the permit or lease;
    2. Begin no earlier than 14 days before the grazing begin date 
specified by the permit or lease, and end no later than 14 days after 
the grazing end date specified by the permit or lease.
    Providing for temporary changes allows sufficient flexibility to 
BLM land managers, permittees, and lessees to address seasonal and 
annual changes, thereby supporting efficient and responsive management 
of public rangelands.
    Livestock periods of use established by the grazing permits are 
based on the anticipated average dates that the range is ``ready'' to 
be grazed. ``Range readiness'' is the stage of plant growth at which 
grazing may begin without doing permanent damage to the vegetation 
community or the soil. The point where the range is ``ready'' for 
grazing use can and does vary from year to year around a long-term 
average date of readiness. A 14-day flexibility period on either side 
of the grazing begin and end dates specified by the permit or lease is 
a reasonable way to allow for minor adjustments in grazing use in 
response to these variations to better correspond grazing use to 
rangeland conditions. BLM would consider applications for changes in 
grazing use ``within the terms and conditions of the permit or lease'' 
on a case-by-case basis. If BLM approves the change, no formal action 
other than the issuance and payment of a relevant grazing fee billing 
would be required. The change would not constitute a formal permit or 
lease modification. In other words, a temporary change that BLM allowed 
in one year to respond to the conditions of that year would not be 
carried forward to the next year. BLM would not consider an application 
for grazing use that falls outside of this flexibility ``within the 
terms and conditions'' of the authorizing permit or lease.
    BLM proposes to move provisions addressing approval of ``temporary 
nonuse'' from section 4130.2 to this section and amend them to allow 
BLM to have the discretion to approve applications on a year-to-year 
basis for temporary nonuse of all or part of the grazing use authorized 
by a permit or lease when the nonuse is warranted by rangeland 
conditions or the personal or business needs of the permittee or 
lessee. Events such as drought, fire or less than average forage growth 
typically result in ``rangeland conditions'' that will prompt the need 
for temporary nonuse of all or part of the grazing use allowed by the 
permit or lease.
    When rangeland conditions are such that less grazing use would be 
appropriate, BLM encourages operators, if they have not done so 
already, to apply for nonuse for ``conservation and protection of 
rangeland resources.'' This is the simplest way to achieve temporary 
reduced use to respond to rangeland condition needs. In some cases, 
approval of an application for temporary nonuse precludes the need for 
BLM to issue a decision to temporarily suspend use under section 
4110.3-3(b), although BLM retains the discretion to do this. ``Personal 
and business needs'' of the grazing operator refer to actions operators 
take in the course of managing their business, such as livestock sale, 
that result in temporary herd size reductions.
    Paragraph (e) of this section (paragraph 4130.2(h) in the existing 
regulations, as revised for clarity) would continue BLM's current 
discretion to issue a nonrenewable authorization to other qualified 
applicants to use the forage that became temporarily available as a 
result of nonuse approved for business or personal reasons. When BLM 
approves nonuse because we agree that rangeland conditions would 
benefit from temporary nonuse, we would not authorize another operator 
to use it. We propose moving the current paragraph (a) to the end of 
this section and redesignating it as paragraph (f). In newly designated 
paragraph (f), BLM makes several editorial changes.
    BLM also proposes to remove the current three-consecutive-year 
limit on temporary nonuse. In the ANPR we stated that we would be 
considering increasing the number of consecutive years that we could 
authorize temporary nonuse from 3 years to 5 years. In response, BLM 
received numerous comments on this topic. Some commenters appeared to 
be confused about this provision as presented in the ANPR because they 
did not distinguish between the permittee-initiated action of applying 
for nonuse in proposed section 4130.3 and a BLM initiated action to 
change preference in proposed section 4110.3. Other commenters asked 
BLM to allow longer periods of temporary nonuse, and some expressed 
concerns that extending the authorized nonuse could have impacts on a 
permittee's ability to retain water rights. We are proposing that BLM 
have the same discretion to approve temporary nonuse as existed before 
the 1995 rule changes, to provide us with management flexibility needed 
to respond to the common occurrence of site-specific fluctuations in 
available forage levels that may occur for a variety of reasons as 
explained above.

Section 4130.5 Free-Use Grazing Permits

    The proposed rule would remove reference to conservation use in 
paragraph (b)(1) of this section to conform the regulation to the 
decision of the Tenth Circuit Court of Appeals. We also propose to 
remove the word ``authorize'' to keep the rule internally consistent.

[[Page 68463]]

Section 4130.6-2 Nonrenewable Grazing Permits and Leases

    The proposed changes to this section would remove the requirement 
that BLM consult with the interested public before issuing nonrenewable 
permits and leases. BLM issues nonrenewable permits and leases to allow 
grazing use of additional forage that is temporarily available. One 
circumstance under which we would apply this is when BLM has approved 
an application for nonuse for personal or business reasons as described 
above. Another circumstance where this regulation might apply is to 
manage grazing use authorized on ``cheatgrass'' ranges.
    Cheatgrass (Bromus tectorum), a nonnative introduced annual, is 
established on vast acreages in the intermountain west. Its growth 
characteristics are such that under favorable growing conditions, 
ranges dominated by cheatgrass may produce 5 times or more forage than 
what that same range produces in a year experiencing average growing 
conditions. Its value as forage, however, is limited (hence the common 
name) because its nutritional value diminishes rapidly by summer, when 
it dries and becomes highly flammable. Grazing permits issued for use 
of ``cheatgrass range'' specify stocking rates on the number of 
livestock that can be supported in the ``average'' growth year, and 
provide generally that we allow use during the spring, when the 
cheatgrass can meet livestock nutritional needs. When the growth year 
is favorable, cheatgrass range provides more forage, and in some cases 
considerably more forage, than that which is allowed to be grazed under 
the term grazing permit. When this occurs, BLM must be able to respond 
rapidly to applications for temporary and nonrenewable grazing use 
because forage quality declines rapidly as the season progresses. 
Because BLM provides full opportunity for the interested public to 
comment during the NEPA and planning processes, and because 
consultation can be a time-consuming process, not generally conducive 
to the ``rapid response'' needed to take advantage of situations that 
would give rise to approval of an application for temporary and 
nonrenewable use, BLM is proposing to remove the additional public 
consultation requirement before issuing temporary and nonrenewable 
grazing permits or leases.

Section 4130.8-1 Payment of Fees

    BLM is proposing editorial changes to this section to make it 
easier to read and corrects a cross-reference in the existing 
regulations in paragraph (f) (paragraph (h) in the proposed rule) to 
subpart 4160.

Section 4130.8-3 Service Charge

    The proposed rule would remove the reference to conservation use in 
this section to conform to the Tenth Circuit decision.
    BLM is authorized under FLPMA to assess a service charge that 
reflects our processing costs. The current regulations provide for 
periodic fee adjustments as costs change. BLM has not adjusted our 
service charges in many years. When BLM does make changes, the current 
regulations require public notification in the Federal Register.
    Except when BLM initiates an action, we are proposing to increase 
service charge fees as shown in the following table:

------------------------------------------------------------------------
                                                       Current  Proposed
                       Action                          service   service
                                                       charge    charge
------------------------------------------------------------------------
Issue Crossing Permit...............................       $10       $75
Grazing Preference Transfer.........................        10       145
Canceling and replacing grazing fee billing.........        10        50
------------------------------------------------------------------------

    As required by Section 304(b) of FLPMA, the service fees on this 
chart represent BLM's average cost of processing these applications 
less the estimated portion of the cost incurred for the benefit of the 
general public interest rather than for the exclusive benefit of the 
applicant.

Subpart 4140--Prohibited Acts

    The current regulations specify a number of prohibited acts. Some 
of the prohibited acts apply only to grazing permittees or lessees 
while others apply to anyone who commits those acts while on BLM lands. 
There are 3 different categories of prohibited acts in the current 
regulations.
    The first category of prohibited acts is set forth in section 
4140.1(a) which provides that permittees and lessees who perform any of 
the 6 prohibited acts listed under this section may be subject to civil 
penalties under Sec.  4170.1 (e.g., withholding issuance, suspending, 
or canceling a permit or lease.) Examples of prohibited acts in this 
category include: violations of special terms and conditions of permits 
or leases and refusing to remove range improvements when BLM directs 
their removal. In this category, BLM is proposing to clarify the 
provision which prohibits the placement of supplemental feed on public 
lands without authorization. Under the proposed regulation, we are 
proposing to add that placement of supplemental feed without 
authorization ``or contrary to the terms and conditions of the permit 
or lease'' is a prohibited act. This will further clarify the intent of 
this section to ensure strict compliance with the terms and conditions 
of the permit or lease.
    A second category of prohibited acts is set forth in section 
4140.1(b). Any person (not just a permittee or lessee) who performs one 
of the 11 prohibited acts in this section is subject to civil and 
criminal penalties under sections 4170.1 and 4170.2. Examples of the 
prohibited acts identified in this section include: allowing livestock 
or other privately owned or controlled animals to graze on or be driven 
across public lands without a permit or lease; destroying vegetation; 
and damaging property owned by the United States. BLM is proposing to 
clarify that a violation of any of the prohibited acts set forth in 
Sec.  4140.1(b) must occur on BLM-administered lands to be considered a 
violation. BLM is also proposing to modify and clarify one of the 
prohibited acts in this section. The current rule at Sec.  
4140.1(b)(1)(i) states that it is a prohibited act to graze livestock 
without a permit or lease and ``an annual grazing authorization.'' This 
paragraph would be revised to state that it is a prohibited act to 
graze without a permit or lease or other grazing use authorization and 
``timely payment of grazing fees.'' This revision would more accurately 
characterize the relationship between the document that authorizes 
grazing, the permit or lease, and the requirement to pay grazing fees 
as stated in Section 3 of the Taylor Grazing Act. Section 3 states:

    The Secretary of the Interior is * * * authorized to issue * * * 
permits to graze livestock * * * to settlers, residents and other 
stock owners * * * upon the payment annually of reasonable fees * * 
*.

    The requirement to pay fees annually has led to the 
characterization of a paid grazing fee billing as an ``annual grazing 
authorization'' for the purposes of applying other provisions of the 
regulations such as requirements for consultation, the ability to 
protest and appeal grazing decisions, and what grazing use BLM may 
authorize if a grazing permitting decision is stayed. This change is 
intended to make this regulation consistent with the regulation at 
section 4130.2 which provides that the grazing permit or lease is the 
document that authorizes grazing use on public lands.
    The third category of prohibited acts is set forth in section 
4140.1(c). Under this provision, the BLM may take civil

[[Page 68464]]

action under section 4170.1 against a grazing permittee or lessee that 
violates any of the prohibited acts identified in this section. For 
this category of prohibited acts, unlike the first two categories, the 
primary responsibility for enforcement generally rests with a Federal 
or state agency other than BLM. Three sets of prohibited acts are 
identified in this section. The first set consists of Federal or State 
laws or regulations pertaining to 6 different activities. Examples 
include: placement of poisonous bait or hazardous devices designed for 
the destruction of wildlife; pollution of water resources; and illegal 
removal or destruction of archeological or cultural resources. The 
second set of prohibited acts in this section identifies as prohibited 
acts the violation of specific laws and regulations including the Bald 
Eagle Protection Act, Endangered Species Act, and any provision of the 
regulations concerning wild horses and burros. The third set of 
prohibited acts in this section identifies as prohibited acts the 
violation of State livestock laws or regulations relating to branding 
and other livestock related issues. BLM proposes to retain the 
provisions in the third category of prohibited acts which allow us to 
withhold, suspend, or cancel all or part of a grazing permit if the 
lessee or permittee is convicted of violating any of the prohibited 
acts. The proposed rule would, however, clarify and limit BLM's 
enforcement authority by limiting its application to prohibited acts 
performed by a permittee or lessee on his allotment where he is 
authorized to graze under a BLM permit or lease. This change is 
intended to further ensure that the performance of the prohibited act 
is related to the permit or lease under which the violator is 
operating.
    In the ANPR, BLM announced that it was considering which ``non-
permit related'' violations BLM may take into account in penalizing a 
permittee. BLM received numerous comments opposing and supporting 
changes to this section. Many affiliates of the livestock industry 
characterized the current rule's provisions as a form of ``double 
jeopardy.'' BLM does not believe that violation of the Federal or state 
laws listed in section 4140.1 violates the Double Jeopardy Clause of 
the Fifth Amendment of the Constitution when a civil sanction, such as 
suspending or canceling a permit after conviction for violating 
environmental laws on an allotment where an individual has a permit or 
lease to graze, furthers the legitimate objective of encouraging 
responsible stewardship of public rangelands. Therefore, section 4140.0 
is not a punitive measure that can be viewed as causing multiple 
punishments for the same offense. Furthermore, both the Endangered 
Species Act (ESA) and the Bald Eagle Protection Act (BEPA) provide for 
grazing sanctions. The ESA provides that if a Federal grazing permittee 
or lessee is convicted for a criminal violation of the Act, the agency 
may suspend, modify, or revoke the permit or lease. The BEPA provides 
that the head of a Federal agency that issues a grazing permit or lease 
may immediately cancel such permit or lease when a person who holds it 
is convicted of violating the Act. Commenters who opposed any changes 
in the prohibited acts section of the regulations urged BLM to retain 
current authority to cancel, suspend, or deny permits when the 
violation is related to environmental protection.

Subpart 4150--Unauthorized Grazing Use

Section 4150.3 Settlement

    Existing paragraph (e) of this section has been modified to correct 
the reference to subpart 4160. We also propose adding a new paragraph 
(f) to this section to specify that if a permittee or lessee obtains a 
stay of a decision that demands payment or cancels or suspends a 
grazing authorization, BLM will allow him to graze under his existing 
authorization pending resolution of the appeal. This proposed change 
clarifies existing procedures and will ensure consistent implementation 
of the regulations.

Subpart 4160--Administrative Remedies

Section 4160.1 Proposed Decisions

    BLM proposes to amend this section to specify that a biological 
evaluation or biological assessment that BLM prepares for purposes of 
the Endangered Species Act (16 U.S.C. 1531-1544) (ESA) is not a 
proposed decision for purposes of a protest to BLM, or a final decision 
for purposes of an appeal to the Office of Hearings and Appeals under 
the Taylor Grazing Act. This provision would prospectively supersede 
the decision of the Interior Board of Land Appeals (IBLA) in Blake v. 
BLM, 145 IBLA 154, 166 (1998) aff'd, 156 IBLA 280 (2000), holding that 
the protest and appeal provisions of 43 CFR subpart 4160 apply to a 
biological evaluation or biological assessment.
    A Federal agency prepares a biological assessment or biological 
evaluation when it considers action that may affect species or habitats 
that are protected under the ESA and are located on land managed by the 
Federal agency. A biological assessment or biological evaluation 
necessarily identifies what action an agency is considering, so that 
the U.S. Fish and Wildlife Service (FWS) or the National Marine 
Fisheries Service (NMFS) can prepare a biological opinion pursuant to 
section 7 of the ESA (16 U.S.C. 1536). In addition, a description of 
the contemplated action would be necessary under proposed section 
4130.3-3(b), which would provide for consultation with the interested 
public and others during the preparation of biological assessments or 
biological evaluations, to the extent practical. However, biological 
assessments and biological evaluations are tools that the FWS and the 
NMFS use to decide whether to initiate formal consultation under 
section 7 of the ESA. Therefore, they are not proposed grazing 
decisions that may be protested to BLM, or final grazing decisions 
appealable to OHA. If formal consultation is not required upon 
completion of the biological assessment, BLM will issue a proposed 
decision, such as the issuance of a permit or lease, that may be 
protested and appealed. If formal consultation is required, upon 
completion of the Section 7 consultation process BLM will issue a 
decision that may be the subject of protest and appeal.

Section 4160.3 Final Decisions

    In order to reconcile statutory directives found in the 
Administrative Procedure Act, 5 U.S.C. 701-706 (APA), TGA and FLPMA, 
BLM proposes to amend this section by--
    [sbull] Cross-referencing the Department's administrative appeals 
regulations,
    [sbull] Clarifying the requirement that one must exhaust 
administrative remedies, and
    [sbull] Defining what grazing is authorized while an administrative 
appeal is pending.
    Current paragraph (c) states the 30-day deadline for filing an 
appeal of a final grazing decision or of a proposed decision that has 
become final ``by default'' because no party protested it. The proposed 
rule would move this text to section 4160.4 on Appeals, where it more 
properly belongs. BLM believes that the proposed revision would avoid 
duplication and more clearly cross-reference procedures applicable to 
grazing decision appeals in the regulations at 43 CFR 4.470. Paragraph 
(f) of this section would be redesignated paragraph (c) and edited for 
clarity.
    Current paragraphs (d) and (e) describe what grazing is authorized 
if a petition for stay of a final grazing

[[Page 68465]]

decision is granted by the Office of Hearings and Appeals. Additional 
discussions related to those paragraphs appear in section 4160.4, 
below.

Section 4160.4 Appeals

    The proposed rule would amend this section by adding language 
clarifying how the appeal of a BLM grazing decision, and a petition for 
a stay of the decision pending appeal, affect the effectiveness of the 
decision and the continuity of ongoing grazing operations, if any. The 
current provision merely states the procedural requirements for filing 
appeals, and defers to the Department of the Interior regulations at 43 
CFR 4.470, which do not address the issues of whether and to what 
degree ongoing activities should continue in the face of an appeal or 
stay.
    The APA provides a right of action against agencies and officers of 
the United States to persons adversely affected or aggrieved by agency 
action. However, such action may be sought in a federal court only when 
a decision is ``final.'' 5 U.S.C. 704. An agency action is not 
considered final where the agency requires by rule that an 
administrative appeal to a superior agency authority be filed and 
provides that the agency action is inoperative while the appeal is 
pending. The Department's administrative appeals regulations recognize 
the requirement that a party must first exhaust administrative remedies 
before resorting to Federal Court: ``No decision which at the time of 
its rendition is subject to appeal to the Director or an Appeals Board 
shall be considered final so as to be agency action subject to judicial 
review under 5 U.S.C. 704, unless a petition for a stay of decision has 
been timely filed and the decision being appealed has been made 
effective. * * *'' 43 CFR 4.21(c).
    Under the Department's administrative appeals regulations, unless 
the authorized officer, the Director of OHA, or IBLA places a decision 
in immediate effect, a BLM grazing decision is ineffective until the 
30-day appeal period expires. If a petition for stay is filed within 
the appeal period, the decision is not in effect for 45 days after the 
expiration of the appeal period or until OHA acts on the stay petition, 
whichever occurs first. If the stay is not granted, the party has 
exhausted his administrative remedies and may seek review in federal 
court. If a stay is granted, the decision, with exceptions discussed 
below, is inoperative while the appeal is pending, and thus under the 
APA a party must exhaust his administrative remedies before resorting 
to federal court.
    There are instances, however, where grazing may continue even 
though an appeal has been filed and a stay of the decision has been 
granted. These situations do not, however, present a conflict with the 
``finality'' requirement found in the APA. The first example occurs 
when a party appeals, but does not seek a stay of the decision. In such 
a case the decision will be in effect after the 30-day appeal period, 
but it is not considered ``final'' for purposes of the APA since the 
party did not exhaust his administrative remedies. Under the current 
regulations, grazing is allowed even after the decision is stayed when 
there was no valid permit or lease in effect at the time of the 
appealed decision. BLM regulations provide that in such a situation, 
grazing would be allowed consistent with the appealed decision even 
when the decision is stayed. In such a case, a party would have fully 
complied with OHA's regulations pertaining to exhaustion of 
administrative remedies, but grazing would be allowed. BLM believes it 
is necessary to allow grazing even if a stay is granted because the OHA 
regulations do not establish time frames for resolution of appeals. To 
do otherwise would potentially eliminate grazing and deny a user the 
ability to graze the lands for years awaiting an administrative 
decision. As a result, a party could seek judicial review of the 
decision since the decision would be effective during the appeal. In 
cases such as these, the BLM is attempting to find a balance between 
the exhaustion of administrative remedies under the APA and its 
responsibilities under FLPMA and TGA to:
    [sbull] Manage lands for multiple use and sustained yield,
    [sbull] Regulate the occupancy and use of the rangelands,
    [sbull] Safeguard grazing privileges,
    [sbull] Preserve the public rangelands from destruction or 
unnecessary injury, and
    [sbull] Provide for the orderly use, improvement, and development 
of the range.
    BLM proposes to set forth the kinds of grazing decisions that would 
be rendered inoperative by the granting of a stay of a BLM grazing 
decision:
    [sbull] Those that modify terms and conditions of a permit or lease 
during its current term or during the renewal process; and
    [sbull] Those that offer a permit or lease to a preference 
transferee with terms and conditions that are different from the 
previous permit or lease terms and conditions.
    It is proposed that if a stay of either of these kinds of decisions 
is granted, the immediately preceding grazing authorization would not 
expire and the affected permittee, lessee, or preference applicant 
would continue grazing under the immediately preceding grazing 
authorization, subject to any applicable provisions of the stay order 
and subject to the provisions of proposed section 4130.3(b).
    As a result, the appealed decision is inoperative. Nonetheless, 
grazing under the prior grazing authorization would continue under the 
APA provision at 5 U.S.C. 558 requiring that ``a license with reference 
to an activity of a continuing nature'' does not expire until an agency 
makes a new determination. Thus, a permittee or lessee who has made 
timely and sufficient application for a renewal or a new license in 
accordance with part 4100 would not have his permit or lease expire 
until the application has been finally determined by the Department of 
the Interior (5 U.S.C. 558(c)). This approach reconciles the exhaustion 
provision of the APA and the expectation set forth in the APA that a 
permittee will continue to operate under the immediately preceding 
authorization in order to ensure security of tenure.
    Where a party has no valid grazing authorization at the time that 
the decision is rendered, there is a reduction in area available for 
grazing use, or the applicant is seeking use of ephemeral or annual 
rangelands, BLM could not authorize use based on the previous year's 
authorization. Thus, under the proposed rule, grazing would continue 
pursuant to the decision even in the case of a stay when a decision:
    [sbull] Modifies a permit or lease because of a decrease in public 
land acreage available for grazing;
    [sbull] Affects an application for grazing use of BLM-designated 
ephemeral or annual rangeland;
    [sbull] Affects an application for additional forage temporarily 
available;
    [sbull] Affects an application for a grazing permit or lease that 
is not made in conjunction with a preference transfer application.
    In these cases, BLM would authorize grazing consistent with the 
final decision that has been stayed, and affected parties could resort 
to the Federal Courts without exhausting administrative remedies.
    BLM specifically invites comment on this section regarding how it 
might effectively incorporate both the exhaustion and ``activity of a 
continuing nature'' requirements of the APA, and ensure that the public 
land grazing is managed in such a way as to meet the direction of the 
TGA and FLPMA.

[[Page 68466]]

Subpart 4170--Penalties

Section 4170.1-2 Failure To Use

    BLM proposes to remove the term ``permitted use'' from this section 
and replace it with the term ``active use.'' This is consistent with 
our proposed definitions.

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

Section 4180.1 Fundamentals of Rangeland Health

    BLM proposes revising the introduction to provide that BLM will 
take action to change grazing management so that it will assist in 
achieving the fundamentals, only if there are no applicable standards 
and guidelines in place.
    In the preamble to the final rule for the 1995 grazing regulation 
amendments, the fundamentals of rangeland health were identified as the 
basic components of rangeland health and were intended to serve as 
overarching principles to be supplemented by the standards and 
guidelines. Stated another way, the standards and guidelines were to be 
developed under the umbrella of the fundamentals. As such, the 
standards and guidelines serve as more locally specific measures of 
rangeland health and acceptable management practices consistent with 
intent of the fundamentals.
    Under the existing regulations at section 4180.1, BLM is required 
to take appropriate action upon determining that existing grazing 
management needs to be modified to ensure that the four conditions, 
which make up the fundamentals of rangeland health, exist. In addition, 
under the existing regulations at section 4180.2, BLM is required to 
take appropriate action upon determining that existing management 
practices or levels of grazing use on public lands are significant 
factors in failing to achieve the standards and conform to the 
guidelines for grazing administration. Where regionally specific 
standards and guidelines have been developed and approved, there is no 
need for BLM managers to make two separate determinations as suggested 
by the existing rule. An evaluation of standards attainment and 
guidelines conformance to determine whether existing grazing management 
practices or levels of grazing use are significant factors in failing 
to achieve the standards and conform with the standards and guidelines 
will effectively satisfy the requirement for an evaluation to determine 
if existing grazing management needs to be changed to ensure the 
existence of the conditions as defined by the fundamentals. Thus, an 
evaluation relating to the fundamental of rangeland health is necessary 
only in those circumstances where standards and guidelines have not 
been developed and approved.
    BLM proposes revising the introduction also to change the amount of 
time BLM would need to take action to ensure that resource conditions 
conform to the requirements of this section. The deadline would change 
from not later than the start of the next grazing year to not later 
than the start of the grazing year following BLM's completion of 
action, including consultation under sections 4110.3-3 and 4130.3-3. 
This change will provide time for BLM to complete relevant and 
applicable requirements of law and regulation, such as NEPA compliance 
documentation, consultation under ESA if applicable, and required 
consultation under sections 4110.3-3 and 4130.3-3. BLM is doing this 
because some decisions must address complex resource management 
circumstances and require time to determine the most appropriate course 
of action.
    BLM received few comments on this provision in response to the 
ANPR. The ANPR stated that we are considering whether to amend the 
provision stating when BLM will implement action that changes grazing 
management after determining that the allotments used by a permittee or 
lessee are not meeting or significantly progressing toward meeting land 
health standards. Most of the comments BLM received asked us to 
implement stricter adherence to the already existing standards and to 
establish time frames for compliance and consequences for not achieving 
those time frames. We believe the current framework is effective and 
achieves compliance. Other commenters asked that we move the 
fundamentals of rangeland health provisions to Subpart 1610, Resource 
Management Planning. At this time we plan to leave the health standards 
in the grazing portion of our regulations.

Section 4180.2 Standards and Guidelines for Grazing Administration

    BLM proposes revising paragraph (c) to provide that we would 
require both assessments of standards attainment and monitoring to 
support a determination that grazing practices are a significant factor 
in failing to achieve, or not making significant progress towards 
achieving rangeland health standards. BLM's current policy is to use 
all available relevant information, including monitoring data when 
available, to assess standards attainment.
    The change proposed by this rule would require that BLM support 
standards attainment determinations with assessment and monitoring 
data.
    We would also revise paragraph (c) to provide that within 24 months 
following a determination that current grazing practices are a 
significant factor in failing to achieve or make progress towards 
achievement of standards, BLM would, in compliance with applicable law 
and with consultation requirements, analyze, formulate, and propose 
appropriate action intended to remedy the failure to meet the 
standards. Under the current rule, following the determination BLM must 
take appropriate action ``before the start of the next grazing year.''
    The new provision states that these requirements would be met upon 
execution of an agreement or issuance of a final decision to implement 
appropriate action. Following the agreement or decision, and resolution 
of any appeals to the decision, BLM would be required to implement the 
appropriate action before the start of the next grazing year.
    BLM also proposes removing the phrase ``Category 1 or 2'' with 
respect to the designation of special status to candidate threatened 
and endangered (T&E) species because the FWS no longer uses these 
designations.
    These changes are being proposed for several reasons. BLM 
recognizes that one of the thrusts of ``Rangeland Reform `94'' was to 
require BLM to implement timely and responsive remedial action upon 
determining that existing grazing practices were preventing achievement 
of rangeland health standards. Since the implementation of this rule, 
BLM has found that in many cases, requiring our field offices to take 
action ``before the start of the next grazing year,'' i.e. within a 
maximum of 12 months of the determination, is insufficient time to 
complete the governmental processes involved in making a reasoned 
choice regarding the appropriate action, and it does not allow for 
operation adjustments by the affected grazing operators that are not 
unduly economically disruptive.
    Arriving at a proposed remedial response that requires gathering 
and analyzing relevant information and necessary coordination takes 
time. BLM must then consider the appropriate action and document 
reasonable alternatives in accordance with NEPA. Consultation under 
ESA, which can be time-consuming, may be required at this stage. Then, 
BLM must develop a proposed grazing decision that

[[Page 68467]]

implements the action, which is subject to protest and appeal. Should 
the final decision be stayed pending appeal, further time is consumed. 
In practice, implementing appropriate action within 12 months of 
determining that grazing practices need to be changed is unrealistic in 
many cases. BLM proposes to extend its self-imposed deadline to 24, 
rather than 12 months in which to complete these processes. BLM 
believes that this will allow the necessary time to deliberate and 
implement responsive, reasonable, and lasting remedies.

V. Procedural Matters

Executive Order 12866, Regulatory Planning and Review

    The Office of Management and Budget determined that these proposed 
regulations are a significant regulatory action and therefore subject 
to review under Executive Order 12866. These proposed regulations would 
not have an effect of $100 million or more on the economy. The proposed 
regulatory changes would not adversely affect, in a material way, the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities.
    The proposed rule would not create a serious inconsistency or 
otherwise interfere with an action taken or planned by another agency. 
BLM is aware that there are differences between its grazing program and 
the program administered by the U.S. Forest Service (USFS). For 
example, the USFS regulations and procedures do not include a temporary 
suspension category, unlike the BLM proposal in section 4110.3-2. The 
USFS regulations at 36 CFR 222.9(b)(2) provide that title to permanent 
structural range improvements on National Forest System lands such as 
pipelines and water troughs remains with the United States, unlike the 
BLM proposal in section 4120.3-2 that allows for the sharing of the 
title for some improvements with permittees and lessees. The USFS 
regulations may provide for a more streamlined process to modify 
grazing permits, particularly in situations where grazing activities 
need to be restricted.
    Despite these and other differences, BLM believes that any 
inconsistencies between BLM's grazing program and USFS' are not serious 
and will not interfere with actions taken or planned by the agencies. 
They merely represent differences in management approach and 
philosophy. However, we specifically invite public comment on whether 
any inconsistencies between the regulations and practices of the two 
agencies interfere with the operations of any BLM lessees or 
permittees, or otherwise inconvenience them or any other stakeholders.
    These proposed regulations do not alter the budgetary effects of 
entitlements, grants, user fees, or loan programs or the right or 
obligations of their recipients; nor do they raise novel legal issues. 
However, the proposed rule raises novel policy issues by reversing or 
otherwise changing policy established in a 1995 rule.

Regulatory Flexibility Act

    Congress enacted the Regulatory Flexibility Act (RFA) of 1980, as 
amended, 5 U.S.C. 601-612, to ensure that Government regulations do not 
unnecessarily or disproportionately burden small entities. The RFA 
requires a regulatory flexibility analysis if a rule would have a 
significant economic impact, either detrimental or beneficial, on a 
substantial number of small entities. BLM prepared an Initial 
Regulatory Flexibility Act Analysis to address changes we are 
considering in this proposed rule and has concluded that this proposed 
rule will not have significant economic impact, either detrimental or 
beneficial, on a substantial number of small entities. This document is 
available for review at 1620 L Street NW., Washington, DC 20036 and on 
the Internet at http://www.blm.gov.grazing.
    The proposed rule would not create a serious inconsistency or 
otherwise interfere with an action taken or planned by another agency. 
The proposed change would not alter the budgetary effects of 
entitlements, grants, user fees, or loan programs or the rights or 
obligations of their recipients; nor does it raise novel legal or 
policy issues, except as discussed in the previous section of the 
preamble.

Small Business Regulatory Enforcement Fairness Act

    This proposed rule is not a ``major rule'' as defined at 5 U.S.C. 
804(2). The changes BLM is proposing to the current grazing regulations 
would not result in an effect on the economy of $100 million or more, 
in an increase in costs or prices, or in significant adverse effects on 
competition, employment, investment, productivity, innovation or on the 
ability of United States-based enterprises to compete with foreign-
based enterprises in domestic and export markets.
    The changes BLM proposes are intended to clarify existing 
requirements and qualifications. These changes would positively affect 
all applicants, whether small entities or not.

Unfunded Mandates Reform Act

    This amendment of 43 CFR Part 4100, as proposed, would not result 
in any unfunded mandate to state, local, or tribal governments, or to 
the private sector, in the aggregate, of $100 million or more. The rule 
would continue and strengthen requirements for BLM to consult with all 
of these governmental and other entities whenever they would likely be 
affected by our actions relating to livestock grazing.

Executive Order 12630, Governmental Actions and Interference With 
Constitutionally Protected Property Rights

    The proposed rule does not represent a government action capable of 
interfering with constitutionally protected property rights. The 
relevant statutes and regulations governing grazing on Federal land and 
case law interpreting these statutes and regulations have consistently 
recognized grazing on Federal land as a revocable license and not a 
property interest. Therefore, the Department of the Interior has 
determined that the rule would not cause a taking of private property 
or require further discussion of takings implications under this 
Executive Order.

Executive Order 13132, Federalism

    The proposed rule would not have a substantial direct effect on the 
states, on the relationship between the national government and the 
states, or on the distribution of power and responsibilities among the 
various levels of government. BLM's inability to issue conservation use 
grazing permits neither hinders nor enhances authority vested in states 
or local governments. The rule would continue and strengthen 
requirements for BLM to consult with all of these governmental and 
other entities whenever they would likely be affected by our actions 
relating to livestock grazing. Therefore, in accordance with Executive 
Order 13132, BLM has determined that this proposed rule does not have 
sufficient Federalism implications to warrant preparation of a 
Federalism Assessment.

Executive Order 13175 Consultation and Coordination With Indian Tribal 
Governments

    In accordance with Executive Order 13175, we have determined that 
this rule does not include policies that have tribal implications. The 
rule expressly does not apply to, and these rules

[[Page 68468]]

expressly exclude, Indian lands set aside or held for the benefit of 
Indians from the effects of the rule.

Executive Order 12988, Civil Justice Reform

    Under Executive Order 12988, the Office of the Solicitor has 
determined that this proposed rule would not unduly burden the judicial 
system and that it meets the requirements of sections 3(a) and 3(b)(2) 
of the Order.

Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35), 
BLM must consider whether this proposed rule will create any additional 
collection, paperwork, or record keeping burdens on the public. These 
burdens are permissible only when BLM can justify the practical utility 
of the information collected under the rule. Office of Management and 
Budget (OMB) approval is required of any new requirements for a 
collection of information imposed on 10 or more persons, and a valid 
OMB control number must be obtained for any covered paperwork.
    The information collection requirements contained in Group 4100 
have been approved by the OMB under 44 U.S.C. 3501 et seq. and assigned 
the following clearance numbers: 1004-0005, 1004-0019, 1004-0020, 1004-
0041, 1004-0047, 1004-0051, 1004-0068. The information would be 
collected to permit BLM to determine whether an application to utilize 
public lands for grazing or other purposes should be approved.
    Today's proposed rule will necessitate some modifications of terms 
in the forms used to collect information. However, there will be no 
change in the reporting burden as a result of today's proposed rule. 
Therefore, these regulations do not contain information collection 
requirements that OMB must approve.

National Environmental Policy Act

    The BLM has determined that these proposed regulations constitute a 
major Federal action significantly affecting the quality of the human 
environment under section 102(2)(C) of the National Environmental 
Policy Act of 1969, 42 U.S.C. 4332(2)(C). BLM and all Federal agencies 
are required by the National Environmental Policy Act (NEPA) to prepare 
an EIS if a proposed action has potential for significant environmental 
impacts. BLM has prepared a draft environmental impact statement (DEIS) 
which will be on file and available to the public in the BLM 
Administrative Record at the address specified in the ADDRESSES 
section. The Draft Environmental Impact Statement will also be 
available at http://www.blm.gov/grazing. The draft document considers 
the impacts of this proposed rulemaking to amend the regulations 
governing livestock grazing on public lands. You may comment on the EIS 
via the interactive ePlanning Web site, at http://www.blm.gov/grazing.

Executive Order 13211, Action Concerning Regulations That Significantly 
Affect Energy Supply, Distribution, or Use

    In accordance with Executive Order 13211, BLM finds that this 
proposed rule is not likely to have a significant adverse effect on the 
supply, distribution, or use of energy. The distribution of or use of 
energy would not be unduly affected by this proposed rule.

Clarity of the Regulations

    Executive Order 12866 requires each agency to write regulations 
that are simple and easy to understand. We invite your comments on how 
to make these proposed regulations easier to understand, including 
answers to questions such as the following: (1) Are the requirements in 
the proposed regulations clearly stated? (2) Do the proposed 
regulations contain technical language or jargon that interferes with 
their clarity? (3) Does the format of the proposed regulations 
(grouping and order of sections, use of headings, paragraphing, etc.) 
aid or reduce their clarity? (4) Would the regulations be easier to 
understand if they were divided into more (but shorter) sections? (A 
``section'' appears in bold type and is preceded by the symbol 
``Sec. '' and a numbered heading, for example ``Sec.  4160.4.'') (5) Is 
the description of the proposed regulations in the SUPPLEMENTARY 
INFORMATION section of this preamble helpful in understanding the 
proposed regulations? How could this description be more helpful in 
making the proposed regulations easier to understand?
    Please send any comments you have on the clarity of the regulations 
to the address specified in the ADDRESSES section.

Author

    The principal author of this rule is Ken Visser, Rangeland 
Management Specialist; Rangeland, Soil, Water and Air Group, assisted 
by Ted Hudson and Cynthia L. Ellis of the Regulatory Affairs Group.

List of Subjects in 43 CFR Part 4100

    Administrative practice and procedure, Grazing lands, Livestock, 
Penalties, Range management, Reporting and record keeping requirements.

    For the reasons stated in the Preamble, and under the authorities 
cited below, we propose to amend Title 43, Subtitle B, Chapter II, 
Subchapter D, Part 4100, as follows:

    Dated: November 18, 2003.
J. Steven Griles,
Deputy Secretary of the Interior.

PART 4100--GRAZING ADMINISTRATION--EXCLUSIVE OF ALASKA

    1. The authority citation for part 4100 continues to read as 
follows:

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

Subpart 4100--Grazing Administration--Exclusive of Alaska; General

    2. Amend Sec.  4100.0-2 by redesignating the first sentence as 
paragraph (a) and the second sentence as paragraph (b), and by revising 
newly designated paragraph (b) to read as follows:


Sec.  4100.0-2  Objectives.

* * * * *
    (b) These objectives will be realized in a manner consistent with 
land use plans, multiple use, sustained yield, environmental values, 
economic and other objectives stated in the Taylor Grazing Act of June 
28, 1934, as amended (43 U.S.C. 315, 315a-315r); section 102 of the 
Federal Land Policy and Management Act of 1976 (43 U.S.C. 1701) and the 
Public Rangelands Improvement Act of 1978 (43 U.S.C. 1901(b)(2)).
    3. Amend Sec.  4100.0-3 by revising paragraphs (c), (d), and (f) to 
read as follows:


Sec.  4100.0-3  Authority.

* * * * *
    (c) Executive orders that transfer land acquired under the 
Bankhead-Jones Farm Tenant Act of July 22, 1937, as amended (7 U.S.C. 
1012), to the Secretary and authorize administration under the Taylor 
Grazing Act.
    (d) Section 4 of the Oregon and California Railroad Land Act of 
August 28, 1937 (43 U.S.C. 1181d);
* * * * *
    (f) Public land orders, Executive orders, and agreements that 
authorize the Secretary to administer livestock grazing on specified 
lands under the Taylor Grazing Act or other authority as specified.

[[Page 68469]]

    4. Amend Sec.  4100.0-5 by removing the definitions of 
``conservation use'' and ``permitted use'', and revising the 
definitions of ``active use'', ``grazing lease'', ``grazing permit'', 
``grazing preference or preference'', ``interested public'', 
``suspension'', and ``temporary nonuse'', and adding a definition of 
``preference'', to read as follows:


Sec.  4100.0-5  Definitions.

* * * * *
    Active use means that portion of the grazing preference that is:
    (1) Available for livestock grazing use under a permit or lease 
based on rangeland carrying capacity and resource conditions in an 
allotment; and
    (2) Not in suspension.
* * * * *
    Grazing lease means a document that authorizes grazing use of the 
public lands under Section 15 of the Act. A grazing lease specifies 
grazing preference and the terms and conditions under which lessees 
make grazing use during the term of the lease.
    Grazing permit means a document that authorizes grazing use of the 
public lands under Section 3 of the Act. A grazing permit specifies 
grazing preference and the terms and conditions under which permittees 
make grazing use during the term of the permit.
    Grazing preference or preference means the total number of animal 
unit months on public lands apportioned and attached to base property 
owned or controlled by a permittee, lessee, or an applicant for a 
permit or lease. Grazing preference includes active use and use held in 
suspension. Grazing preference holders have a superior or priority 
position against others for the purpose of receiving a grazing permit 
or lease.
    Interested public means an individual, group, or organization that 
has:
    (1) (i) 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
    (ii) 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, as part of 
the process leading to a BLM decision on the management of livestock 
grazing on the allotment.
* * * * *
    Preference means grazing preference (see definition of ``grazing 
preference'').
* * * * *
    Suspension means the withholding from active use, through a 
decision issued by the authorized officer or by agreement, of part or 
all of the grazing preference specified in a grazing permit or lease.
    Temporary nonuse means that portion of active use that the 
authorized officer authorizes not to be used, in response to an 
application made by the permittee or lessee.
* * * * *
    5. Revise Sec.  4100.0-9 to read as follows:


Sec.  4100.0-9  Information collection.

    The information collection requirements contained in Group 4100 
have been approved by the Office of Management and Budget under 44 
U.S.C. 3501 et seq. The information is collected to enable the 
authorized officer to determine whether to approve an application to 
utilize public lands for grazing or other purposes.

Subpart 4110--Qualifications and Preference

    6. Amend Sec.  4110.1 by removing paragraphs (b)(1), (b)(2), and 
(c), by redesignating paragraph (d) as paragraph (c), and by revising 
paragraph (b) to read as follows:


Sec.  4110.1  Mandatory qualifications.

* * * * *
    (b) Applicants for the renewal or issuance of new permits and 
leases and any affiliates must be determined by the authorized officer 
to have a satisfactory record of performance under Sec.  4130.1-1(b).
* * * * *
    7. Amend Sec.  4110.2-1 by redesignating paragraphs (d) and (e) as 
paragraphs (e) and (f), respectively, and by redesignating the last two 
sentences of paragraph (c) as paragraph (d).
    8. Revise Sec.  4110.2-2 to read as follows:


Sec.  4110.2-2  Specifying grazing preference.

    (a) All grazing permits and grazing leases will specify grazing 
preference, except for permits and leases for designated ephemeral 
rangelands, where BLM authorizes livestock use based upon forage 
availability, or designated annual rangelands. Preference includes 
active use and any suspended use. 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 under Sec.  
4110.3-3, except, in the case of designated ephemeral or annual 
rangelands, a land use plan or activity plan may alternatively 
prescribe vegetation standards to be met in the use of such rangelands.
    (b) The grazing preference specified is attached to the base 
property supporting the grazing permit or grazing lease.
    (c) The animal unit months of grazing preference are attached to:
    (1) The acreage of land base property on a pro rata basis, or
    (2) Water base property on the basis of livestock forage production 
within the service area of the water.
    9. Amend Sec.  4110.2-3 by revising paragraph (b) to read as 
follows:


Sec.  4110.2-3  Transfer of grazing preference.

* * * * *
    (b) If base property is sold or leased, the transferee shall within 
90 days of the date of sale or lease file with BLM a properly executed 
transfer application showing the base property and the grazing 
preference being transferred in animal unit months.
* * * * *
    10. Revise Sec.  4110.2-4 to read as follows:


Sec.  4110.2-4  Allotments.

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


Sec.  4110.3  Changes in grazing preference.

    (a) The authorized officer will periodically review the grazing 
preference specified in a grazing permit or lease and make changes in 
the grazing preference as needed to:
    (1) Manage, maintain, or improve rangeland productivity;
    (2) Assist in restoring ecosystems to properly functioning 
conditions;
    (3) Conform with land use plans or activity plans; or
    (4) Comply with the provisions of subpart 4180.
    (b) The authorized officer will support these changes by 
monitoring, documented field observations, ecological site inventory, 
or other data acceptable to the authorized officer.
    (c) Before changing grazing preference, the authorized officer will 
undertake the appropriate analysis as

[[Page 68470]]

required by the National Environmental Policy Act of 1969 (42 U.S.C. 
4321 et seq.). The authorized officer will analyze and, if appropriate, 
document the relevant social, economic, and cultural effects of the 
proposed action.
    12. Revise Sec.  4110.3-1 to read as follows:


Sec.  4110.3-1  Increasing active use.

    BLM may apportion additional forage to qualified applicants for 
livestock grazing use consistent with multiple-use management 
objectives specified in the applicable land use plan.
    (a) Additional forage temporarily available. When the authorized 
officer determines that additional livestock forage is temporarily 
available, he may authorize its use on a nonrenewable basis in the 
following order:
    (1) To permittees or lessees who have preference for grazing use in 
the allotment where the forage is available, in proportion to their 
active use; and
    (2) To other qualified applicants under Sec.  4130.1-2.
    (b) Additional forage available on a sustained yield basis. When 
the authorized officer determines that additional forage is available 
on a sustained yield basis, he will apportion it in the following 
manner:
    (1) First, to remove all or a part of the suspension of preference 
of permittees or lessees with permits or leases in the allotment where 
the forage is available; and
    (2) Second, if additional forage remains after ending all 
suspensions, the authorized officer will consult, cooperate, and 
coordinate with the affected permittees or lessees, the state having 
lands responsibility for managing resources within the area, and the 
interested public, and apportion it in the following order:
    (i) Permittees or lessees in proportion to their contribution to 
stewardship efforts that result in increased forage production;
    (ii) Permittee(s) or lessee(s) in proportion to the amount of their 
grazing preference; and
    (iii) Other qualified applicants under Sec.  4130.1-2.
    13. Revise Sec.  4110.3-2 to read as follows:


Sec.  4110.3-2  Decreasing active use.

    (a) The authorized officer may suspend active use in whole or in 
part on a temporary basis due to reasons specified in Sec.  4110.3-
3(b)(1), or to facilitate installation, maintenance, or modification of 
range improvements.
    (b) When monitoring or documented field observations show grazing 
use or patterns of use are not consistent with the provisions of 
subpart 4180, or grazing use is otherwise causing an unacceptable level 
or pattern of utilization, or when use exceeds the livestock carrying 
capacity as determined through monitoring, ecological site inventory, 
or other acceptable methods, the authorized officer will reduce active 
use, otherwise modify management practices, or both. To implement 
reductions under this paragraph, BLM will suspend active use.
    14. Revise Sec.  4110.3-3 to read as follows:


Sec.  4110.3-3  Implementing changes in active use.

    (a)(1) After consultation, cooperation, and coordination with the 
affected permittee or lessee and the state having lands or managing 
resources within the area, the authorized officer will implement 
changes in active use through a documented agreement or by a decision. 
The authorized officer will implement changes in active use in excess 
of 10 percent over a 5-year period unless:
    (i) After consultation with the affected permittees or lessees, an 
agreement is reached to implement the increase or decrease in less than 
5 years, or
    (ii) The changes must be made before 5 years have passed in order 
to comply with applicable law.
    (2) Decisions implementing Sec.  4110.3-2 will be issued as 
proposed decisions pursuant to Sec.  4160.1, except as provided in 
paragraph (b) of this section.
    (b)(1) After consultation with, or a reasonable attempt to consult 
with, affected permittees or lessees and the state having lands or 
responsibility for managing resources within the area, the authorized 
officer will close allotments or portions of allotments to grazing by 
any kind of livestock or modify authorized grazing use notwithstanding 
the provisions of paragraph (a) of this section when the authorized 
officer determines and documents that--
    (i) The soil, vegetation, or other resources on the public lands 
require immediate protection because of conditions such as drought, 
fire, flood, insect infestation; or
    (ii) Continued grazing use poses an imminent likelihood of 
significant resource damage.
    (2) Notices of closure and decisions requiring modification of 
authorized grazing use may be issued as final decisions effective upon 
issuance or on the date specified in the decision. Such decisions will 
remain in effect pending the decision on appeal unless the Office of 
Hearings and Appeals grants a stay in accordance with Sec.  4.21 of 
this title.
    15. Amend Sec.  4110.4-2 by revising the first sentence of 
paragraph (a)(2) to read as follows:


Sec.  4110.4-2  Decrease in land acreage.

    (a) * * *
    (2) Grazing preference may be canceled in whole or in part. * * *
* * * * *

Subpart 4120--Grazing Management

    16. Amend Sec.  4120.2 by revising the final sentence of paragraph 
(c) to read as follows:


Sec.  4120.2  Allotment management plans and resource activity plans.

* * * * *
    (c) * * * The decision document following the environmental 
analysis will be issued in accordance with Sec.  4160.1.
* * * * *
    17. Amend Sec.  4120.3-1 by revising paragraph (f) to read as 
follows:


Sec.  4120.3-1  Conditions for range improvements.

* * * * *
    (f) The authorized officer will review proposed range improvement 
projects as required by the National Environmental Policy Act of 1969 
(42 U.S.C. 4321 et seq.). The decision document following the 
environmental analysis shall be issued in accordance with Sec.  4160.1.
    18. Amend Sec.  4120.3-2 by revising paragraph (b) to read as 
follows:


Sec.  4120.3-2  Cooperative range improvement agreements.

* * * * *
    (b) Subject to valid existing rights, cooperators and the United 
States share title to permanent structural range improvements such as 
fences, wells, and pipelines where authorization is granted after 
February 6, 2004 in proportion to their contribution to on-the-ground 
project development and construction costs. The authorization for all 
new permanent water developments, such as spring developments, wells, 
reservoirs, stock tanks, and pipelines, shall be through cooperative 
range improvement agreements. The authorized officer will document a 
permittee's or lessee's interest in contributed funds, labor, and 
materials to ensure proper credit for the purposes of Sec. Sec.  
4120.3-5 and 4120.3-6(c).
* * * * *
    19. Amend Sec.  4120.3-3 by revising the introductory text of 
paragraph (c) to read as follows:


Sec.  4120.3-3  Range improvement permits.

* * * * *

[[Page 68471]]

    (c) Where a permittee or lessee cannot make use of the forage 
available for livestock and an application for temporary nonuse has 
been denied or the opportunity to make use of the available forage is 
requested by the authorized officer, the permittee or lessee shall 
cooperate with the temporary authorized use of forage by another 
operator, when it is authorized by the authorized officer following 
consultation with the preference permittee(s) or lessee(s).
* * * * *
    20. Amend Sec.  4120.3-8 by removing the misspelling ``whith'' from 
where it appears in the last sentence of paragraph (b) and adding in 
its place the word ``which''.
    21. Revise Sec.  4120.3-9 to read as follows:


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

    Any right that the United States acquires to use water on public 
land for the purpose of livestock watering on public land will be 
acquired, perfected, maintained, and administered under the substantive 
and procedural laws of the state within which such land is located.
    22. Amend Sec.  4120.5-2 by removing the word ``and'' after the 
semicolon at the end of paragraph (a), removing the period at the end 
of paragraph (b) and adding in its place a semicolon and the word 
``and'', and adding paragraph (c) to read as follows:


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

* * * * *
    (c) State, local, or county-established grazing boards in reviewing 
range improvements and allotment management plans on public lands.
    23. Revise Sec.  4130.1-1 to read as follows:


Sec.  4130.1-1  Filing applications.

    (a) Applications for grazing permits or leases (active use and 
nonuse), free-use grazing permits and other grazing authorizations 
shall be filed with the authorized officer at the local Bureau of Land 
Management office having jurisdiction over the public lands involved.
    (b) The authorized officer will determine whether applicants for 
the renewal or issuance of new permits and leases and any affiliates 
have a satisfactory record of performance. The authorized officer will 
not approve such renewal or issuance unless the applicant and all 
affiliates have a satisfactory record of performance.
    (1) Renewal of permit or lease.
    (i) The authorized officer will deem the applicant for renewal of a 
grazing permit or lease, and any affiliate, to have a satisfactory 
record of performance if the authorized officer determines the 
applicant and affiliates to be in substantial compliance with the terms 
and conditions of the existing Federal grazing permit or lease for 
which renewal is sought, and with the rules and regulations applicable 
to the permit or lease.
    (ii) The authorized officer may take into consideration 
circumstances beyond the control of the applicant or affiliate in 
determining whether the applicant and affiliates are in substantial 
compliance with permit or lease terms and conditions and applicable 
rules and regulations.
    (2) New permit or lease. The authorized officer will deem 
applicants for new permits or leases, and any affiliates, to have a 
record of satisfactory performance when--
    (i) The applicant or affiliate has not had any Federal 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
    (ii) The applicant or affiliate has not had any state grazing 
permit or lease, for lands within the grazing allotment for which a 
Federal permit or lease is sought, 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
    (iii) A court of competent jurisdiction does not bar the applicant 
or affiliate from holding a Federal grazing permit or lease.
    (c) In determining whether affiliation exists, the authorized 
officer will consider all appropriate factors, including, but not 
limited to, common ownership, common management, identity of interests 
among family members, and contractual relationships.
    24. Amend Sec.  4130.2 as follows:
    A. By adding the word ``and'' after the semicolon at the end of 
paragraph (e)(2);
    B. By removing paragraphs (g) and (h) and redesignating paragraphs 
(i) and (j) as paragraphs (g) and (h), respectively;
    C. In redesignated paragraph (g), by revising the reference ``(see 
Sec.  4130.3-2)'' to read ``(see Sec.  4130.3-2(g))''; and
    D. By revising paragraphs (a), (b), and (f) to read as follows:


Sec.  4130.2  Grazing permits and leases.

    (a) Grazing permits and leases authorize use on the public lands 
and other BLM-administered lands that are designated in land use plans 
as available for livestock grazing. Permits and leases will specify the 
grazing preference, including active and suspended use. These grazing 
permits and leases will also specify terms and conditions pursuant to 
Sec. Sec.  4130.3, 4130.3-1, and 4130.3-2.
    (b) The authorized officer will consult, cooperate, and coordinate 
with affected permittees and lessees, and the state having lands or 
responsibility for managing resources within the area, before issuing 
or renewing grazing permits and leases.
* * * * *
    (f) A permit or lease is not valid unless both the BLM and the 
permittee or lessee have signed it.
* * * * *
    25. Amend Sec.  4130.3 by redesignating the existing text as 
paragraph (a) and adding paragraphs (b) and (c) to read as follows:


Sec.  4130.3  Terms and conditions.

* * * * *
    (b) Upon a BLM offer of a permit or lease, the permit or lease 
terms and conditions may be protested and appealed under part 4 and 
subpart 4160 unless:
    (1) The terms and conditions of the permit or lease, such as terms 
and conditions mandated by a biological opinion prepared under the 
Endangered Species Act, are not subject to review by the Office of 
Hearings and Appeals; or
    (2) The offer of permit or lease responds to an application for a 
permit or lease for grazing use on additional land acreage (see Sec.  
4110.4-1).
    (c) If any of the terms and conditions of a BLM-offered permit or 
lease are stayed pending appeal, BLM will authorize grazing use as 
provided in Sec.  4160.4.
    26. Amend Sec.  4130.3-2 by adding the word ``and'' after the 
semicolon at the end of paragraph (f), by removing the semicolon and 
the word ``and'' at the end of paragraph (g) and adding in their place 
a period, and by removing paragraph (h).
    27. Revise Sec.  4130.3-3 to read as follows:


Sec.  4130.3-3  Modification of permits or leases.

    (a) Following consultation, cooperation, and coordination with the 
affected lessees or permittees and the state having lands or 
responsibility for managing resources within the area, the authorized 
officer may modify terms and conditions of the permit or lease when the 
active use or related management practices:
    (1) Do not meet management objectives specified in:
    (i) The land use plan;
    (ii) The pertinent allotment management plan or other activity 
plan; or

[[Page 68472]]

    (iii) An applicable decision issued under Sec.  4160.3; or
    (2) Do not conform to the provisions of subpart 4180.
    (b) To the extent practical, during the preparation of biological 
assessments or biological evaluations prepared under the Endangered 
Species Act, and other reports that evaluate monitoring and other data, 
that the authorized officer uses as a basis for making decisions to 
increase or decrease grazing use, or to change the terms and conditions 
of a permit or lease, the authorized officer will provide review 
opportunity and opportunity to provide input to:
    (1) Affected permittees or lessees;
    (2) States having lands or responsibility for managing resources 
within the affected area; and
    (3) The interested public.
    28. Revise Sec.  4130.4 to read as follows:


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

    (a)(1) The authorized officer may authorize temporary changes in 
grazing use within the terms and conditions of the permit or lease to:
    (i) Respond to annual fluctuations in timing and amount of forage 
production; or
    (ii) Meet locally established range readiness criteria.
    (2) The authorized officer will consult, cooperate and coordinate 
with the permittees or lessees regarding their applications for changes 
within the terms and conditions of their permit or lease.
    (b) For the purposes of this subpart, ``within the terms and 
conditions of the permit or lease'' means temporary changes in 
livestock number, period of use, or both, that would result in grazing 
use that:
    (1) Results in forage removal that does not exceed the amount of 
active use specified in the permit or lease; and
    (2) Occurs either 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.
    (c) Permittees and lessees must apply if they wish--
    (1) Not to use all or a part of their active use by applying for 
temporary nonuse under paragraph (d) of this section;
    (2) To activate forage in temporary nonuse; or
    (3) To use forage that is temporarily available on designated 
ephemeral or annual ranges.
    (d)(1) Temporary nonuse is authorized--
    (i) Only if the authorized officer approves in advance; and
    (ii) For no longer than one year at a time.
    (2) Permittees or lessees applying for temporary nonuse use must 
state on their application the reasons supporting nonuse. The 
authorized officer will authorize nonuse to provide for:
    (i) Natural resource conservation, enhancement, or protection, 
including more rapid progress toward meeting resource condition 
objectives or attainment of rangeland health standards; or
    (ii) The business or personal needs of the permittee or lessee.
    (e) Under Sec.  4130.6-2, the authorized officer may authorize 
qualified applicants to graze forage made available as a result of 
temporary nonuse approved for the reasons described in paragraph 
(d)(2)(ii) of this section. The authorized officer will not authorize 
anyone to graze forage made available as a result of temporary nonuse 
approved under paragraph (d)(2)(i) of this section.
    (f) Permittees or lessees who wish to apply for temporary changes 
in grazing use within the terms and conditions of their permit or lease 
should file an application with BLM. The authorized officer will assess 
a service charge under Sec.  4130.8-3 to process applications for 
changes in grazing use that require the issuance of a replacement or 
supplemental billing notice.
    29. Amend Sec.  4130.5 by removing the words ``authorized'' and 
``or conservation use'' from where they appear in paragraph (b)(1).
    30. Amend Sec.  4130.6-2 by revising the second sentence to read as 
follows:


Sec.  4130.6-2  Nonrenewable grazing permits and leases.

    * * * The authorized officer shall consult, cooperate, and 
coordinate with affected permittees or lessees, and the state having 
lands or responsibility for managing resources within the area, before 
issuing nonrenewable grazing permits and leases.
    31. Amend Sec.  4130.8-1 by redesignating paragraphs (d), (e), and 
(f) as paragraphs (f), (g), and (h), respectively, by revising 
paragraph (c), adding new paragraphs (d) and (e), and revising the last 
sentence of redesignated paragraph (h), to read as follows:


Sec.  4130.8-1  Payment of fees.

* * * * *
    (c) Except as provided in Sec.  4130.5, the full fee will be 
charged for each animal unit month of grazing use. For the purposes of 
calculating the fee, an animal unit month is defined as a month's use 
and occupancy of range by 1 cow, bull, steer, heifer, horse, burro, 
mule, 5 sheep, or 5 goats:
    (1) Over the age of 6 months at the time of entering the public 
lands or other lands administered by BLM;
    (2) Weaned regardless of age; or
    (3) Becoming 12 months of age during the authorized period of use.
    (d) BLM will not charge grazing fees for animals that are less than 
6 months of age at the time of entering BLM-administered lands, 
provided that they are the progeny of animals upon which fees are paid, 
and they will not become 12 months of age during the authorized period 
of use.
    (e) In calculating the billing, the authorized officer will prorate 
the grazing fee on a daily basis and will round charges to reflect the 
nearest whole number of animal unit months.
* * * * *
    (h) * * * Failure to make payment within 30 days may be a violation 
of Sec.  4140.1(b)(1) and will result in action by the authorized 
officer under Sec.  4150.1 and subpart 4160.
    32. Revise Sec.  4130.8-3 to read as follows:


Sec.  4130.8-3  Service charge.

    (a) Under Section 304(a) of the Federal Land Policy and Management 
Act of 1976, the service charge BLM assesses will reflect processing 
costs. BLM will adjust the charge periodically as costs change, and 
will inform the public of the changes by publishing a notice in the 
Federal Register.
    (b) Except when BLM initiates an action, the authorized officer 
will assess a service charge for each of the following actions as shown 
on the table below--

------------------------------------------------------------------------
                                                                 Service
                            Action                               charge
------------------------------------------------------------------------
Issue crossing permit.........................................       $75
Transfer grazing preference...................................       145
Cancel and/or replace a grazing fee billing...................        50
------------------------------------------------------------------------

Subpart 4140--Prohibited Acts

    33. Amend Sec.  4140.1 by--
    a. Removing the introductory text; and
    b. Revising paragraphs (a)(2), (a)(3), the introductory text of 
paragraph (b), paragraph (b)(1)(i), and paragraph (c) to read as 
follows:


Sec.  4140.1  Acts prohibited on public lands.

    (a) * * *
    (2) Failing to make substantial grazing use as authorized for 2 
consecutive fee years. This does not include approved temporary nonuse 
or use temporarily suspended by the authorized officer;

[[Page 68473]]

    (3) Placing supplemental feed on these lands without authorization, 
or contrary to the terms and conditions of the permit or lease;
* * * * *
    (b) Persons performing the following prohibited acts on BLM-
administered lands are subject to civil and criminal penalties set 
forth at Sec. Sec.  4170.1 and 4170.2:
    (1) * * *
    (i) Without a permit or lease or other grazing use authorization 
(see Sec.  4130.6) and timely payment of grazing fees;
* * * * *
    (c)(1) A grazing permittee or lessee performing any of the 
prohibited acts listed in paragraphs (c)(2) or (c)(3) of this section 
on an allotment where he is authorized to graze under a BLM permit or 
lease may be subject to the civil penalties set forth at Sec.  4170.1-
1, if:
    (i) The permittee or lessee performs the prohibited act while 
engaged in activities related to grazing use authorized by his permit 
or lease;
    (ii) The permittee or lessee has been convicted or otherwise found 
to be in violation of any of these laws or regulations by a court or by 
final determination of an agency charged with the administration of 
these laws or regulations; and
    (iii) No further appeals are outstanding.
    (2) Violation of Federal or state laws or regulations pertaining to 
the:
    (i) Placement of poisonous bait or hazardous devices designed for 
the destruction of wildlife;
    (ii) Application or storage of pesticides, herbicides, or other 
hazardous materials;
    (iii) Alteration or destruction of natural stream courses without 
authorization;
    (iv) Pollution of water sources;
    (v) Illegal take, destruction or harassment, or aiding and abetting 
in the illegal take, destruction or harassment of fish and wildlife 
resources; and
    (vi) Illegal removal or destruction of archeological or cultural 
resources.
    (3) (i) Violation of the Bald Eagle Protection Act (16 U.S.C. 668 
et seq.), Endangered Species Act (16 U.S.C. 1531 et seq.), or any 
provision of part 4700 of this chapter concerning the protection and 
management of wild free-roaming horses and burros; or
    (ii) Violation of State livestock laws or regulations relating to 
the branding of livestock; breed, grade, and number of bulls; health 
and sanitation requirements; and violating State, county, or local laws 
regarding the stray of livestock from permitted public land grazing 
areas onto areas that have been formally closed to open range grazing.

Subpart 4150--Unauthorized Grazing Use

    34. Amend Sec.  4150.3 by revising the second sentence of paragraph 
(e) and adding paragraph (f) to read as follows:


Sec.  4150.3  Settlement.

* * * * *
    (e) * * * The authorized officer may take action under subpart 4160 
to cancel or suspend grazing authorizations or to deny approval of 
applications for grazing use until such amounts have been paid. * * *
    (f) Upon a stay of a decision issued under paragraph (e) of this 
section, the authorized officer will allow a permittee or lessee to 
graze in accordance with this part pending resolution of any appeal.

Subpart 4160--Administrative Remedies

    35. Amend Sec.  4160.1 by adding paragraph (d) to read as follows:


Sec.  4160.1  Proposed decisions.

* * * * *
    (d) A biological assessment or biological evaluation prepared for 
purposes of an Endangered Species Act consultation or conference is not 
a decision for purposes of protest or appeal.
    36. Amend Sec.  4160.3 by removing paragraphs (c), (d), and (e), by 
redesignating paragraph (f) as paragraph (c), and by revising 
redesignated paragraph (c) to read as follows:


Sec.  4160.3  Final decisions.

* * * * *
    (c) Notwithstanding the provisions of Sec.  4.21(a) of this title 
pertaining to the period during which a final decision will not be in 
effect, the authorized officer may provide that the final decision 
shall be effective upon issuance or on a date established in the 
decision, and shall remain in effect pending the decision on appeal 
unless a stay is granted by the Office of Hearings and Appeals when the 
authorized officer has made a determination in accordance with Sec.  
4110.3-3(b) or Sec.  4150.2(d). Nothing in this section shall affect 
the authority of the Director of the Office of Hearings and Appeals, 
the Interior Board of Land Appeals, or an administrative law judge, to 
provide that the decision becomes effective immediately as provided in 
Sec.  4.21(a)(1) of this title.
    37. Revise Sec.  4160.4 to read as follows:


Sec.  4160.4  Appeals.

    (a) Those who wish to appeal or seek a stay of a BLM grazing 
decision must follow the requirements set forth in Sec.  4.470 et seq. 
of this title. The appeal or petition for stay must be filed with the 
BLM office that issued the decision within 30 days after its receipt or 
within 30 days after the proposed decision becomes final as provided in 
Sec.  4160.3(a).
    (b) When OHA stays implementation of a decision described in 
paragraph (b)(1) or (b)(2) of this section, the immediately preceding 
authorization and any terms and conditions therein will not expire, and 
the permittee, lessee, or preference applicant may continue to graze 
under the immediately preceding grazing authorization, subject to any 
relevant provisions of the stay order and Sec.  4130.3(b), and except 
as provided in paragraph (c) of this section. This paragraph applies to 
decisions that:
    (1) Change the terms and conditions of a permit or lease during the 
current term;
    (2) Offer a permit or lease to a preference transferee with terms 
and conditions that are different from the permit or lease terms and 
conditions that are most recently applicable to the allotment or 
portion of the allotment in question; or
    (3) Renew a permit or lease with changed terms and conditions.
    (c) When OHA stays implementation of a decision described in 
paragraphs (c)(1) through (c)(4) of this section, the authorized 
officer, notwithstanding paragraph (b) of this section, will authorize 
grazing consistent with the final decision when the decision:
    (1) Modifies a permit or lease because of a decrease in public land 
acreage available for grazing (see Sec.  4110.4-2);
    (2) Affects an application for grazing use of BLM-designated 
ephemeral or annual rangeland;
    (3) Affects an application for additional forage temporarily 
available under Sec.  4110.3-1(a); or
    (4) Affects an application for a grazing permit or lease that is 
not made in conjunction with a preference transfer application (see 
Sec.  4110.2-3(d)).

Subpart 4170--Penalties

    38. Revise Sec.  4170.1-2 to read as follows:


Sec.  4170.1-2  Failure to use.

    If a permittee or lessee has, for 2 consecutive grazing fee years, 
failed to make substantial use as authorized in the lease or permit, or 
has failed to maintain or use water base property in

[[Page 68474]]

the grazing operation, the authorized officer, after consultation, 
coordination, and cooperation with the permittee or lessee and any 
lienholder of record, may cancel whatever amount of active use the 
permittee or lessee has failed to use.

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

    39. Amend Sec.  4180.1 by revising the introductory text and 
paragraph (d) to read as follows:


Sec.  4180.1  Fundamentals of rangeland health.

    Where standards and guidelines have not been established under 
Sec.  4180.2(b), and the authorized officer determines that grazing 
management needs to be modified to assist in achieving the following 
conditions, the authorized officer will take appropriate action as soon 
as practicable under Sec.  4180.2 but not later than the start of the 
grazing year that follows BLM's completion of relevant and applicable 
requirements of law and regulations and the consultation requirements 
of Sec. Sec.  4110.3-3 and 4130.3-3:
* * * * *
    (d) Habitats are, or are making significant progress toward being, 
restored or maintained for Federal threatened and endangered species, 
Federal proposed or candidate threatened and endangered species, and 
other at-risk and special status species.
    40. Amend Sec.  4180.2 by removing the semicolon at the end of 
paragraph (e)(12) and adding in its place a period, by revising 
paragraph (c), the introductory text of paragraph (d), paragraph 
(d)(4), paragraph (e)(9), the introductory text of paragraph (f), and 
paragraph (f)(2)(viii), to read as follows:


Sec.  4180.2  Standards and guidelines for grazing administration.

* * * * *
    (c)(1) If the authorized officer determines through standards 
assessment and monitoring that existing grazing management practices or 
levels of grazing use on public lands are significant factors in 
failing to achieve the standards and conform with the guidelines that 
are made effective under this section, the authorized officer will, in 
compliance with applicable laws and with the consultation requirements 
of this part, formulate, propose, and analyze appropriate action to 
address the failure to meet standards or to conform to the guidelines 
not later than 24 months after the determination. The requirements of 
this paragraph are met when the parties execute an applicable and 
relevant documented agreement or the authorized officer issues an 
applicable final decision under Sec.  4160.3.
    (2) Upon executing the agreement or in the absence of a stay of the 
final decision, the authorized officer will implement the appropriate 
action as soon as practicable, but not later than the start of the next 
grazing year.
    (3) The authorized officer will take appropriate action as defined 
in this paragraph by the deadlines established in paragraphs (c)(1) and 
(c)(2) of this section. Appropriate action means implementing actions 
pursuant to subparts 4110, 4120, 4130, and 4160 that will result in 
significant progress toward fulfillment of the standards and 
significant progress toward conformance with the guidelines. Practices 
and activities subject to standards and guidelines include the 
development of grazing-related portions of activity plans, 
establishment of terms and conditions of permits, leases, and other 
grazing authorizations, and range improvement activities such as 
vegetation manipulation, fence construction, and development of water.
    (d) At a minimum, state and regional standards developed or revised 
under paragraphs (a) and (b) of this section must address the 
following:
* * * * *
    (4) Habitat for endangered, threatened, proposed, candidate, or 
other at-risk or special status species; and
* * * * *
    (e) * * *
    (9) Restoring, maintaining or enhancing habitats of Federal 
proposed, Federal candidate, and other at-risk and special status 
species to promote their conservation;
* * * * *
    (f) Until such time as state or regional standards and guidelines 
are developed and in effect, the following standards provided in 
paragraph (f)(1) of this section and guidelines provided in paragraph 
(f)(2) of this section will apply and will be implemented in accordance 
with paragraph (c) of this section.
* * * * *
    (2) * * *
    (viii) Conservation of Federal threatened or endangered, proposed, 
candidate, and other at risk or special status species is promoted by 
the restoration and maintenance of their habitats;
* * * * *
[FR Doc. 03-30264 Filed 12-5-03; 8:45 am]
BILLING CODE 4310-84-P