[Federal Register Volume 71, Number 133 (Wednesday, July 12, 2006)]
[Rules and Regulations]
[Pages 39402-39509]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-5788]



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Part II





Department of the Interior





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Bureau of Land Management



43 CFR Part 4100



Grazing Administration--Exclusive of Alaska; Final Rule

  Federal Register / Vol. 71, No. 133 / Wednesday, July 12, 2006 / 
Rules and Regulations  

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DEPARTMENT OF THE INTERIOR

Bureau of Land Management

43 CFR Part 4100

[WO-220-1020-24 1A]
RIN 1004-AD42


Grazing Administration--Exclusive of Alaska

AGENCY: Bureau of Land Management, Interior.

ACTION: Final rule.

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SUMMARY: The Bureau of Land Management (BLM) amends its regulations 
concerning how BLM administers livestock grazing on public lands. The 
changes ensure that BLM documents its consideration of the social, 
cultural, environmental, and economic consequences of grazing changes; 
provide that changes in grazing use will be phased in under certain 
circumstances; allow permittees, lessees, and others to share title to 
range improvements with BLM in certain circumstances; make clear how 
BLM will authorize grazing if a BLM decision affecting a grazing permit 
is stayed pending administrative appeal; remove provisions in the 
present regulations concerning conservation use grazing permits; ensure 
adequate time for developing and successfully implementing an 
appropriate management action when BLM finds that rangelands do not 
meet standards and guidelines for rangeland health and that authorized 
grazing is a significant factor in not achieving one or more land 
health standards or not conforming with guidelines for grazing 
administration; and revise some administrative service charges. We 
intend these changes to contribute to improving working relationships 
with permittees and lessees, protecting the health of the rangelands 
and increasing administrative efficiency and effectiveness.

EFFECTIVE DATE: August 11, 2006.

ADDRESSES: You may send inquiries or suggestions to Director (220), 
Bureau of Land Management, Room 204 LS, Eastern States Office, 7450 
Boston Boulevard, Springfield, Virginia 22153.

FOR FURTHER INFORMATION CONTACT: Ken Visser, Rangeland Management 
Specialist, Rangeland, Soils, Water and Air Group, (775) 861-6492, or 
Ted Hudson (202) 452-5042 of the Regulatory Affairs Group. Individuals 
who use a telecommunications device for the deaf (TDD) may contact them 
individually through the Federal Information Relay Service at 1-800-
877-8339, 24 hours a day, seven days a week.

SUPPLEMENTARY INFORMATION:

I. Background
    A. History
    B. Why We Are Amending the Regulations
    C. Rules of Construction: Words and Phrases
II. Changes Made Since the Proposed Rule
III. Record of Decision Under the National Environmental Policy Act
    A. Decisions
    B. Alternatives Considered
    C. Environmentally Preferable Alternative
    D. Decision Rationale
    1. Analysis and Documentation of Social, Economic, and Cultural 
Effects
    2. Phase-in of Changes in Active Use of More Than 10 Percent
    3. Sharing Title to Permanent Range Improvements
    4. Cooperation With Tribal, State, County, and Local Government-
Established Grazing Boards
    5. Removal of Temporary Nonuse Limit
    6. Requiring Assessments and Monitoring for Determinations on 
Standards and Guidelines
    7. Time Frame for Taking Action
    8. Conservation Use
    9. Definitions of Preference, Active Use, and Removal of 
Permitted Use
    10. Interested Public
    11. Water Rights
    12. Satisfactory Performance of Applicants
    13. Temporary Changes in Grazing Use Within the Terms and 
Conditions of a Permit or Lease, Including Temporary Nonuse
    14. Service Charges
    15. Prohibited Acts
    16. Decisions on Ephemeral or Annual Rangeland Grazing Use and 
Nonrenewable Permits
    17. Effect on Grazing Use When an Administrative Stay Has Been 
Granted on an Appeal of a Decision Associated With Changes to a 
Permit or Lease or Grazing Preference Transfers
    18. Biological Assessments and Evaluations Are Not Decisions and 
Therefore Not Subject To Protest or Appeal
IV. Response to General Comments
    A. The Regulatory Process
    B. General Support
    C. General Opposition
    D. Purpose and Need for Rulemaking
    E. Environmental Effects of the Rule
    F. Alternatives Considered
    G. Cross-Cutting Issue-Related Comments
    1. Role of the Interested Public
    2. Land Use and Allotment Management Planning
    3. Monitoring
    4. Enforcement
    H. Other Recommendations
    1. Advisory Councils and Grazing Advisory Boards
    2. Wild Horses and Burros
    3. Reserve Common Allotments
    4. Incentives for Good Stewardship
    5. Encouraging Flexible Management
    6. Determining Appropriate Technical Procedures
    7. Access to Public Lands
    8. Judicial Matters
    9. Interagency Cooperation
V. Section-by-Section Analysis and Response to Comments
VI. Procedural Matters

I. Background

A. History

    BLM administers livestock grazing on BLM lands within the 
continental United States under the regulations found at 43 CFR part 
4100. Statutory authority for these regulations includes the following:
    1. The Taylor Grazing Act (TGA) as amended (43 U.S.C. 315, 315a 
through 315r);
    2. The Federal Land Policy and Management Act of 1976 (FLPMA) (43 
U.S.C. 1701 et seq.) as amended by the Public Rangelands Improvement 
Act (PRIA) (43 U.S.C. 1901 et seq.);
    3. Section 4 of the Oregon and California Railroad Lands Act (43 
U.S.C. 1181d);
    4. Executive orders that transfer land acquired under the Bankhead-
Jones Farm Tenant Act (7 U.S.C. 1012) to the Secretary and authorize 
administration under TGA; and
    5. Public land orders, executive orders and agreements authorizing 
the Secretary to administer livestock grazing on specified lands under 
TGA or on other lands as specified.
    Section 202 of FLPMA requires the development and maintenance of 
land use plans for public lands. BLM land use plans are designed to 
provide guidance for future management actions and the development of 
subsequent, more detailed and limited-scope plans for resources and 
uses. Land use plans are developed under the multiple-use and 
sustained-yield mandate of FLPMA. Land use plans identify lands that 
are available for livestock grazing and the parameters under which 
grazing is to occur. BLM issues grazing permits or leases for available 
grazing lands. Grazing permits and leases specify the portion of the 
landscape BLM authorizes to the permittee or lessee for grazing (i.e., 
one or more allotments) and establish the terms and conditions of 
grazing use. Terms and conditions include, at a minimum, the number and 
class of livestock, when and where they are allowed to graze, and for 
how long. Grazing use must conform to any applicable allotment 
management plans, the terms and conditions of the permit or lease, land 
use plan decisions, the grazing regulations, and other applicable laws.
    Since the first set of grazing regulations was issued after passage 
of the TGA in 1934, the regulations have

[[Page 39403]]

been periodically amended and updated. The last major revision effort 
was called ``Rangeland Reform ``94.'' In February 1995, BLM published 
comprehensive changes to the grazing regulations and put them into 
effect in August 1995. Major changes made to the regulations in 1995 
included the following:
     Revised the term ``grazing preference'' to mean a priority 
position against other applicants for receiving a grazing permit, 
rather than a specified amount of public land forage apportioned and 
attached to a base property owned or controlled by a permittee or 
lessee, and added the term ``permitted use'' to describe forage use 
amounts allocated by or under the guidance of an applicable land use 
plan, and authorized by grazing permits or leases;
     Provided that BLM could issue a ``conservation use'' 
permit to authorize permittees not to graze their permitted allotments;
     Limited authorized temporary nonuse to 3 consecutive 
years;
     Required grazing fee surcharges for permittees who do not 
own the livestock that graze under their permits;
     Provided that the United States holds 100 percent of the 
vested title to permanent range improvements, such as fences, wells, 
and pipelines, constructed under cooperative agreements dated after 
August 21, 1995, rather than proportionately sharing title with the 
cooperators;
     Required livestock operators and BLM to use cooperative 
agreements to authorize new permanent water developments, instead of 
allowing some water developments to be authorized under range 
improvement permits;
     Provided that after August 21, 1995, any water right 
acquired on public land to be used for livestock watering on public 
land must be acquired, perfected, maintained, and administered under 
substantive and procedural laws of the state where the land is located, 
and that such water rights are to be acquired in the name of the United 
States, to the extent allowed by the law of the state;
     Established fundamentals of rangeland health; and
     Created a process for developing and applying state or 
regional standards for land health and guidelines for livestock grazing 
as a yardstick for grazing management performance.
    Soon after the grazing regulations took effect on August 21, 1995, 
a lawsuit was filed challenging the validity of several of the new 
regulations. All challenged provisions except ``conservation use'' (see 
the second bullet, above) were upheld. Public Lands Council v. Babbitt, 
167 F.3d 1287 (10th Cir. 1999), aff'd, 529 U.S. 728 (2000).
    On March 3, 2002, BLM published an Advance Notice of Proposed 
Rulemaking (ANPR) and Notice of Intent (NOI) to prepare an 
environmental impact statement (EIS) in the Federal Register (68 FR 
9964-9966 and 10030-10032, respectively). These notices requested 
public comment and input to assist BLM with the scoping process for the 
proposed rule and the EIS. The comment period on the ANPR and the NOI 
ended on May 2, 2003.
    During the scoping process, BLM held four public meetings to elicit 
comments and suggestions for the proposed rule and development of the 
draft environmental impact statement (DEIS). The meetings were held 
during March 2003 in Albuquerque, New Mexico; Reno, Nevada; Billings, 
Montana; and Washington, DC. BLM received approximately 8,300 comments 
on the ANPR and the NOI. The majority of these were varying types of 
form letters.
    We considered many of the issues that the public raised during the 
scoping period and discussed several of them as alternatives in the 
DEIS. We did not address, however, some of the issues that comments 
raised, because they were either beyond the scope of the document, did 
not meet the basic goals of these proposed changes to the regulations, 
or BLM decided we could better address the issues through internal 
policy changes. We listed and discussed these issues in the proposed 
rule (68 FR 68455), and in section 1.3.2 of the DEIS, and there is no 
need to repeat them here.
    We published the proposed rule on December 8, 2003 (68 FR 68452), 
inviting public comments until February 6, 2004. On January 16, 2004, 
we published a notice to extend the comment period to March 2, 2004 (69 
FR 2559). BLM held six public meetings in late January and early 
February, 2004, to provide the public an opportunity to comment on the 
proposed rule. Meetings were held in Salt Lake City, Utah; Phoenix, 
Arizona; Boise, Idaho; Billings, Montana; Cheyenne, Wyoming; and 
Washington, DC. Approximately 250 individuals attended the public 
meetings and 95 provided oral comments. These were transcribed and can 
be viewed on the BLM web site at www.blm.gov/grazing. We received about 
18,000 comment letters and electronic communications. Most of the 
comments were form letters or emails. An exact count of the comments is 
not available because of the large amount of duplication among the 
comments due to individuals or entities submitting identical comments 
multiple times or via different media. We did not attempt to keep track 
of all the duplications, although we observed many. You may view 
comment letters, including scanned images of faxes and handwritten 
letters, on BLM's regulatory comment system accessible at www.blm.gov/
nhp/news/regulatory/index.html.

B. Why We Are Amending the Regulations

    The grazing regulations are being amended based largely on lessons 
learned in implementing the 1995 regulations. Other changes are 
designed to improve clarity, ensure internal consistency, and address 
the 10th Circuit holding regarding ``conservation use'' permits.
    Many changes have been made in livestock grazing management and 
practices to improve the health of the public rangelands since the 
passage of the TGA in 1934 and FLPMA in 1976. The final rule recognizes 
the many benefits of livestock grazing on public lands, including its 
social and economic contributions to rural communities and its 
preservation of open space in the rapidly growing West, as well as the 
importance of maintaining healthy rangelands and wildlife habitat.
    When we developed this final rule, we considered whether the 
changes facilitated improving working relations with grazing permittees 
and lessees, protecting the health of rangelands, or increasing 
administrative efficiency and effectiveness. The changes in the final 
rule enhance BLM's ability to accomplish each of these objectives.
    The major changes in the final rule are listed below by objective.
Improving Working Relations With Grazing Permittees and Lessees
     Require BLM to follow a consistent approach in analyzing 
and documenting the relevant social, economic, and cultural effects of 
proposed changes in grazing preference and incorporate such analyses 
into appropriate National Environmental Policy Act (NEPA) documents.
     Require phase-in of changes in grazing use of more than 10 
percent over a 5-year period, consistent with relevant law.
     Provide for joint ownership of range improvements--changes 
would allow BLM and a grazing permittee, or other cooperator, to share 
title to certain structural range improvements, such as fences, wells, 
or pipelines, if they are constructed under a Cooperative Range 
Improvement Agreement.
     Require BLM to cooperate with Tribal, state, county, and 
local

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government-established grazing boards in reviewing range improvements 
and allotment management plans on public lands.
Protecting the Health of Rangelands
     Remove the 3-consecutive-year limit on temporary nonuse of 
a grazing permit but continue to require BLM to review nonuse annually 
to make sure it is still necessary, whether for resource conservation, 
enhancement, or protection, or for personal or business purposes.
     Provide that a standards assessment will be used by the 
authorized officer to gauge whether rangeland is failing to achieve 
standards or that management practices do not conform to the 
guidelines, and where assessments indicate failure to achieve standards 
or to conform with guidelines, require BLM to use existing or new 
monitoring data to identify the factors that significantly contribute 
to failing to achieve standards or conform with guidelines.
     Provide additional time after a determination that grazing 
practices or levels of use are significant factors in failing to 
achieve standards and conform to guidelines for BLM to formulate, 
propose, and analyze actions; to comply with all applicable laws; and 
to complete all consultation, cooperation, and coordination 
requirements before reaching a final decision on appropriate actions.
Increasing Administrative Efficiency and Effectiveness
     Eliminate the ``conservation use'' permit regulatory 
provisions to comply with the Tenth Circuit Court of Appeals decision 
in Public Lands Council v. Babbitt, 167 F.3d 1287 (10th Cir. 1999), 
aff'd on other grounds, 529 U.S. 728 (2000).
     Expand the definition of ``grazing preference'' to include 
an amount of forage on public lands attached to a rancher's private 
base property, which can be land or water. This expanded definition, 
similar to one that existed from 1978 to 1995, makes clear that grazing 
preference has a quantitative meaning (forage amounts, measured in 
Animal Unit Months (AUMs)) as well as a qualitative one (priority of 
position ``in line'' for grazing privileges).
     Modify the definition of ``interested public'' to ensure 
that only those individuals and organizations who actually participate 
in the process are maintained on the list of interested publics. (The 
regulations with respect to the interested public are also revised to 
improve efficiency in BLM's management of public lands grazing by 
reducing the occasions in which the Bureau is required to involve the 
interested public. Under this provision, BLM could involve the public 
in such matters as day-to-day grazing administration, but would no 
longer be required to do so. BLM would continue to require 
consultation, cooperation, and coordination with the interested public 
in grazing planning activities such as allotment management planning or 
range improvement project or program planning.)
     Provide flexibility to the Federal government in decisions 
relating to livestock water rights by removing the requirement that, if 
BLM acquires water rights for livestock watering on public land under 
state law, BLM must acquire, perfect, maintain, and administer those 
water rights in the name of the United States where allowed by State 
law.
     Clarify that an applicant for a new permit or lease will 
be deemed to have a record of satisfactory performance when the 
applicant has not had any Federal or state grazing permit or lease 
canceled, in whole or in part, for violation of the permit or lease 
within the 36 calendar months immediately preceding the date of 
application, and a court of competent jurisdiction has not barred the 
applicant or an affiliate from holding a Federal grazing permit or 
lease.
     Clarify what is meant by ``temporary changes in grazing 
use within the terms and conditions of permits and lease.'' Under the 
1995 regulations, BLM can approve temporary changes in grazing use 
within the terms and conditions of a permit or lease. The final rule 
clarifies that ``temporary changes in grazing use within the terms and 
conditions'' means temporary changes to livestock number, period of 
use, or both, that would result in nonuse or in grazing use where 
forage removal does not exceed the amount of active use specified in 
the permit or lease, and such grazing use occurs not earlier than 14 
days before the begin date specified on the permit or lease and not 
later than 14 days after the end date specified on the permit or lease, 
unless otherwise specified in the appropriate allotment management 
plan.
     Increase certain service charges to reflect more 
accurately the cost of grazing administration.
     Clarify that if a permittee or lessee is convicted of 
violating a Federal or state law or regulation, and if the violation 
occurs while he is engaged in grazing-related activities, BLM may take 
action against his grazing permit or lease only if the violation 
occurred on the BLM-managed allotment where the permittee or lessee is 
authorized to graze.
     Provide the authority for BLM to issue an immediately 
effective decision on non-renewable grazing permits or leases or on 
applications for grazing use on designated ephemeral or annual 
rangelands. Under the final rule, if a stay on an appeal of such a 
decision is granted, the decision would be inoperative and, if 
appropriate considering the specific stay, the livestock may have to be 
removed from the allotment.
     Clarify how BLM will authorize grazing when the Office of 
Hearings and Appeals (OHA) stays all or part of a BLM grazing decision 
affecting a permit or lease. Such decisions may:
     Cancel, suspend or change terms and conditions of a permit 
or lease during its current term,
     Renew a permit or lease, or
     Grant or deny a permit or lease to a preference 
transferee.
    Under the final rule, if OHA stays all or part of such a decision, 
then BLM will, with respect to any stayed portions of the decision, 
authorize grazing use on the allotment(s) or portions of the 
allotment(s) in question pursuant to terms or conditions that are the 
same as the permit or lease that immediately preceded BLM's decision, 
subject to any other provisions of the stay order.
     Clarify that a biological assessment or biological 
evaluation, prepared in compliance with the Endangered Species Act 
(ESA), is not a decision and therefore is not subject to protest or 
appeal.
     Provide that the primary function of the fundamentals of 
rangeland health is to describe land condition goals and to guide 
development of the Standards and Guidelines that must be implemented to 
ensure that the conditions described by the fundamentals of rangeland 
health exist.
    The reasons for the changes in the final rule are described in the 
Record of Decision in Part III of this preamble.

C. Rules of Construction: Words and Phrases

    For simplicity and to make the rule easier to read and understand 
we use words that signify the singular to include and apply to the 
plural and vice versa as provided in 43 CFR 1810.1. Words that signify 
the masculine gender also include the feminine. Words used in the 
present tense also apply to the future. The terms ``BLM'' and 
``authorized officer'' are used interchangeably and include any person 
authorized by law or by lawful

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

II. Changes Made Since the Proposed Rule

    This part of the preamble describes briefly the changes we made 
since the proposed rule as a result of comments and our own review. A 
reader who is interested in a quick overview of the changes we made 
between the proposed and final rules may find this part useful. 
However, if you are looking for a detailed description of all the final 
rule changes from the existing regulations, you should look at the 
section-by-section analysis which appears later in this preamble.
Section 4100.0-5 Definitions
    We changed the definition section in several respects in the final 
rule.
    Active use. In this definition, we have substituted the word 
``livestock'' for ``rangeland'' in the reference to carrying capacity. 
The change makes the definition consistent with all other references to 
``carrying capacity'' in the rule.
    District. We have amended the definition for the term ``District'' 
to update the regulations as to the organization of BLM field offices.
    Ephemeral rangelands. We have revised the definition for this term 
by removing the misstatement that production of sufficient forage by 
ephemeral range was necessarily unusual.
    Interested public. We amended this section to make it clear that, 
in a request to be considered a member of the interested public, a 
person must identify the specific allotments in which the person or 
entity is interested. We also added language providing that when 
members of the interested public submit comments or otherwise 
participates, they must address the management of a specific allotment.

Subpart 4110 Qualifications and Preference

Section 4110.2-3 Transfer of Grazing Preference
    In the final rule we amended this section to make it clear that a 
transfer application must show the base property and the grazing 
preference attached to that base property.
    We also removed the phrase ``if the applicant leases the base 
property'' from the second sentence of paragraph (c), and removed the 
third sentence entirely. This will clarify that anyone with an interest 
in the base property, not just an owner who is leasing the property to 
the preference holder, must provide written consent before a preference 
transfer can take place. The third sentence addressed a situation 
unique to the historical origins of grazing preference that is no 
longer applicable.
Section 4110.3 Changes in Grazing Preference
    We amended paragraph (a)(2) of section 4110.3 to make it clear that 
BLM can make changes in grazing preference to assist in making progress 
toward restoring ecosystems to properly functioning conditions. We also 
amended paragraph (c) to make it clear that the analysis of social, 
economic, and cultural factors that BLM will perform before changing 
preference will be under NEPA (42 U.S.C. 4332).
Section 4110.3-1 Increasing Active Use
    In the final rule we have added language in the introductory text 
of section 4110.3-1 to make it clear that decisions increasing active 
use are also based on monitoring or documented field observations, just 
as decisions decreasing active use must be. Changes in preference, 
whether increases or decreases, already must be supported by monitoring 
or documented field observations.
    We have also amended paragraphs (a) and (b) to make it clear that 
BLM must determine that additional forage is available for livestock, 
as opposed to other consumption or use, before we can authorize 
livestock grazing use of it on a temporary or sustained-yield basis.
Section 4110.3-3 Implementing Changes in Active Use
    We amended section 4110.3-3 in the final rule in 3 respects:
     We changed ``shall'' to ``will'' in paragraph (b)(1) to 
reflect standard usage in BLM regulations. This change has no practical 
effect on the obligatory nature of the provision.
     We added the word ``or'' in paragraph (b)(1)(i) as a 
grammatical correction.
     We corrected a cross-reference in paragraph (b)(ii).
Section 4120.2 Allotment Management Plans and Resource Activity Plans
    In section 4120.2(c), we changed ``shall'' to ``will'' to reflect 
standard usage in BLM regulations. This change has no practical effect 
on the obligatory nature of the provision.
Section 4120.3-1 Conditions for Range Improvements
    In section 4120.3-1(f), we changed ``shall'' to ``will'' to reflect 
standard usage in BLM regulations. This change has no practical effect 
on the obligatory nature of the provision.
Section 4120.3-2 Cooperative Range Improvement Agreements
    We further amended paragraph (b) by adding the word ``will'' to 
make it clear that shared ownership of range improvements is not merely 
descriptive but regulatory and prospective.
Section 4120.3-3 Range Improvement Permits
    We have revised paragraph (c) of section 4120.3-3 for purposes of 
clarification. The language in the existing text is unnecessarily 
convoluted and confusing. The point of the paragraph is to set the 
stage for what this part of the regulations is really about: if BLM 
lets a third party graze on your allotment, how do we address the use 
and maintenance of range improvements occurring on that allotment? We 
also removed a reference to conservation use.
Section 4120.5-2 Cooperation With Tribal, State, County, and Federal 
Agencies
    In the final rule, we have amended the introductory text and added 
paragraph (c) of section 4120.5-2 to add Tribal grazing boards to the 
list of entities with which we will cooperate, and to make it clear 
that BLM is formally required to cooperate only with Tribal, state, 
county, or local grazing boards that are established under Tribal or 
government authority, as opposed to private organizations that might 
assume the title ``grazing board.'' We also added ``Tribal agencies'' 
to the section heading and to the general provisions on cooperation.
Section 4130.1-1 Filing Applications
    We further amended paragraph (b) of section 4130.1-1 to correct an 
unintentional flaw, in that the paragraph seemed to refer to renewal of 
new permits. We are also making it clear in paragraph (b)(2) that the 
section refers to permits and leases that authorize use of new or 
transferred preference.
Section 4130.3 Terms and Conditions
    In the final rule, we amended proposed section 4130.3 by removing 
paragraphs (b)(1) and (b)(2) in response to comments. Paragraph (b)(1) 
referenced terms and conditions that are not subject to review by OHA, 
and identified terms and conditions derived from biological opinions as 
an example. Paragraph (b)(2) restricted the right of appeal and protest 
where it was not necessary to do so. We also amended

[[Page 39406]]

paragraph (c) to make clear how BLM would authorize grazing if BLM made 
numerous changes in terms and conditions of a permit or lease, and upon 
an appellant's petition, OHA stayed only one or a portion of them. In 
this circumstance, BLM would authorize use, with respect to the stayed 
terms and conditions, according the comparable terms and conditions 
that were in effect prior to BLM's decision to change them in 
combination with the changed terms and conditions that were not stayed 
by OHA.
Section 4130.3-2 Other Terms and Conditions
    In the proposed rule, we amended section 4130.3-2 by removing 
paragraph (h), which provides that the authorized officer may include 
in permit and lease terms and conditions a statement disclosing the 
requirement that permittees and lessees shall provide administrative 
access across private and leased lands if it is necessary for the 
orderly management and protection of public lands. In response to 
public comments, we have restored paragraph (h) in this final rule. (We 
did this by removing the amendatory text that appeared in the proposed 
rule directing the removal of paragraph (h). Thus, although the 
regulatory text in this final rule contains no mention of section 
4130.3-2, the effect of the final rule is to leave paragraph (h) 
intact.)
Section 4130.3-3 Modification of Permits or Leases
    We removed the words ``biological assessments or biological 
evaluations prepared under the Endangered Species Act, and other'' from 
section 4130.3-3(b), because it is unnecessary to highlight biological 
assessments and biological evaluations as examples of reports during 
the preparation of which BLM seeks input from affected permittees, 
lessees, states, and the interested public. We added the word 
``otherwise'' in paragraph (b) because increasing or decreasing grazing 
use is a change in terms and conditions of a grazing permit or lease. 
Without the word, the paragraph seems to read that such an increase or 
decrease is not a change in terms and conditions.
Section 4130.4 Authorization of Temporary Changes in Grazing Use Within 
the Terms and Conditions of Permits and Leases, Including Temporary 
Nonuse
    In the final rule, we added ``temporary nonuse'' to the heading of 
section 4130.4 as a convenience to readers. We also removed language in 
paragraph (a) of the section listing reasons for allowing temporary 
changes in grazing use within the terms and conditions of the grazing 
authorization.
    We have amended paragraph (d)(2) of section 4130.4 of the proposed 
rule, which becomes paragraph (e)(2) in the final rule, by changing the 
word ``will'' to ``may'' in order to avoid an interpretation of this 
provision that BLM has no discretion to deny temporary nonuse.
    We also amended paragraph (f) of the proposed rule, which becomes 
paragraph (g) in the final rule, to provide that permittees or lessees 
``must'' apply if they need temporary changes in grazing use. The 
proposed rule stated that they ``should'' apply. The final rule also 
makes it clear that such an application must be in writing.
    We amended paragraph (b) to recognize that the same application may 
cover both temporary nonuse and removal of forage either before the 
begin date or after the end date, and to allow such changes that 
conform to flexibility limits specified in an allotment management plan 
under Sec.  4120.2(a)(3) despite the 14 day limit.
    Finally, we reordered the paragraphs in the section more logically, 
redesignating paragraph (a)(2) as (c) and adjusting the succeeding 
paragraph designations accordingly, and made editorial changes for 
purposes of clarity.
Section 4130.6-2 Nonrenewable Grazing Permits and Leases
    In the final rule, we redesignated the proposed text as paragraph 
(a) and added a new paragraph (b) allowing BLM to make a decision 
issuing a nonrenewable grazing permit or lease, or affecting an 
application for grazing use on annual or designated ephemeral 
rangelands, effective immediately or on a date established in the 
decision.
    For purposes of clarity and ease of usage, in the final rule we 
have amended the first sentence of section 4130.6-2(a) by adding a 
cross-reference to section 4110.3-1(a), which provides for the 
disposition of additional forage temporarily available.
Section 4130.8-1 Payment of Fees
    In the final rule we further amended paragraph (h) of section 
4130.8-1 to make it clear that failure to make payment within 30 days 
is a violation of a prohibited act in section 4140.1 and may result in 
enforcement action.
Section 4130.8-3 Service Charges
    In the final rule we added language to paragraph (a) of section 
4130.8-3 providing that BLM will adjust the service charges 
periodically as costs change, and publish notice thereof in the Federal 
Register, and revised paragraphs (a) and (b) for clarity. We also 
restored supplemental grazing fee billings to the list of services for 
which BLM imposes a service charge.
Section 4140.1 Acts Prohibited on Public Lands
    In the final rule we made an editorial change in section 
4140.1(a)(2) for purposes of clarity, and corrected a typographical 
error in section 4140.1(c)(3)(ii).
Section 4150.2 Notice and Order To Remove
    In the final rule we corrected an erroneous cross-reference in 
paragraph (d).
Section 4150.3 Settlement
    In the final rule, we amended new paragraph (f) of section 4150.3 
to make it clear that ``this part'' refers to all of part 4100 and that 
grazing will continue pending completion of the administrative appeal 
process, as opposed to resolution of judicial appeals.
Section 4160.1 Proposed Decisions
    In the final rule, we added necessary cross-references to paragraph 
(c) of section 4160.1, which was not amended in the proposed rule. 
These additions conform the paragraph to the addition of section 
4130.6-2(b) in this rule, and the addition of section 4190.1(a) in a 
previous final rule (68 FR 33804, June 5, 2003).
Section 4160.3 Final Decisions
    In the final rule, we also added necessary cross-references to 
paragraph (c) of section 4160.3 to conform the paragraph to the 
addition of section 4130.6-2(b) in this rule, and the addition of 
section 4190.1(a) in a previous final rule (68 FR 33804, June 5, 2003).
Section 4160.4 Appeals
    In response to comments by OHA and others, we have removed Sec.  
4160.4(c) in the final rule, and simplified paragraph (b). We have 
revised Sec.  4160.4(b)(1), (2), and (3) to clarify that, when OHA 
stays all or part of a decision modifying or renewing a grazing permit 
or lease, or a decision offering or denying a permit or lease to a 
preference transferee, grazing may proceed, with respect to the 
portions of the decision that were stayed, under comparable terms and 
conditions of the permit or lease that immediately preceded the 
decision that was stayed, subject to any relevant provisions of the 
stay order.

[[Page 39407]]

Section 4180.1 Fundamentals of Rangeland Health
    We have removed the language from the introductory text of this 
section that requires BLM to modify grazing management to ensure that 
the conditions described by the fundamentals of rangeland health exist 
only where standards and guidelines have not been established under 
section 4180.2, and added in its place a characterization of the 
purpose of the fundamentals of rangeland health.
    We have also amended paragraph (d) of section 4180.1 to remove the 
reference to ``at-risk'' species.
Section 4180.2 Standards and guidelines for grazing administration.
    As in section 4180.1, in section 4180.2 also we have removed 
references to ``at-risk'' species in paragraphs (d)(4), (e)(9) and 
(f)(2)(viii). We also changed ``or'' to ``and'' before the phrase 
``other special status species'' in (d)(4).
    We have added language in section 4180.2(b) allowing BLM to extend 
the deadline for making a decision following a determination when 
legally required processes that are the responsibility of another 
agency prevent completion within 24 months.
    Finally, we made procedural changes in paragraph (c) to provide 
that if a standards assessment indicates to the authorized officer that 
the rangeland is failing to achieve standards or that management 
practices do not conform to the guidelines, then the authorized officer 
will use existing or new monitoring data to identify the significant 
factors that contribute to failing to achieve the standards or to 
conform with the guidelines.

III. Record of Decision Under the National Environmental Policy Act

    This preamble constitutes BLM's record of decision, as required 
under the Council on Environmental Quality regulations at 40 CFR 
1505.2. The decision is based on the proposed action and alternatives 
presented in the Final Environmental Impact Statement, ``Revisions to 
Grazing Regulations for the Public Lands.''

A. Decisions

    After considering all relevant issues, alternatives, potential 
impacts, and management constraints, BLM selects the Proposed Action, 
Alternative 2, in the Final EIS for implementation. Alternative 2 
changes the existing grazing regulations in several areas as follows:
     A new provision requiring BLM to analyze and, if 
appropriate, document the relevant social, economic, and cultural 
effects as part of the NEPA analysis of proposed actions to change 
grazing preference;
     An amendment providing that, generally, changes in active 
use greater than 10 percent will be phased in over 5 years consistent 
with existing law;
     An amendment providing for proportional sharing of title 
to permanent range improvements between BLM and a cooperator, based on 
initial contribution to construction and installation;
     A new provision for cooperation with Tribal, state, county 
or local government-established grazing boards in reviewing range 
improvements and allotment management plans on public land;
     An amendment removing the 3-consecutive-year limit on 
temporary nonuse and substituting a provision for annual review of 
temporary nonuse.
     An amendment making BLM's finding that existing grazing 
management practices or levels of grazing use on public lands are 
significant factors in failing to achieve range health standards or 
conform with grazing management guidelines a two-step process. The 
authorized officer will use a standards assessment to gauge whether 
rangeland is failing to achieve standards or management practices do 
not conform to the guidelines, and, if this is the case, he will use 
existing or new monitoring data to identify the significant factors 
contributing to not meeting standards or conforming with guidelines.
     An amendment providing BLM up to 24 months after making a 
determination that grazing practices or levels of use are significant 
factors in failure to achieve standards or conform to guidelines, (1) 
to formulate, propose, and analyze appropriate action, (2) to comply 
with all applicable laws, and (3) to complete all consultation, 
cooperation, and coordination requirements before reaching a final 
decision on the appropriate action. The amendment allows for additional 
time beyond 24 months if necessary to meet legal obligations that are 
the responsibility of another agency.
     An amendment removing the provision that requires BLM to 
modify grazing management to ensure that the conditions described by 
the fundamentals of rangeland health exist. This amendment recognizes 
that BLM relies on evaluation of achievement of the standards of 
rangeland health and conformance with grazing management guidelines to 
determine whether grazing management needs to be modified in order to 
achieve the general descriptions of land health described by the 
Fundamentals.
     Amendments removing ``conservation use'' permit regulatory 
provisions throughout the grazing regulations in accordance with Public 
Lands Council v. Babbitt, supra;
     An amendment revising the definition of ``grazing 
preference'' to mean, in addition to a priority position against others 
for the purpose of receiving a permit or lease, the total number of 
AUMs on public lands apportioned and attached to base property owned or 
controlled by a permittee, a lessee, or an applicant for a permit or 
lease. Grazing preference includes active use and use held in 
suspension. Related to this change, we also removed the definition of 
``permitted use'' from the regulations;
     Amendments revising the definition and role of the 
``interested public'' to ensure that only those individuals and 
organizations who actually participate in the process are maintained on 
the list of interested publics, and to improve efficiency by reducing 
the occasions in which BLM is mandated to involve the interested 
public;
     An amendment removing the requirement that, if livestock 
water rights are acquired under state law, they must be acquired, 
perfected, and maintained in the name of the United States;
     An amendment clarifying the criteria that BLM considers 
when determining whether an applicant for a new permit or lease or a 
transfer of grazing preference has a satisfactory record of 
performance;
     An amendment defining the meaning of ``temporary changes 
in grazing use within the terms and conditions of the permit or lease'' 
and describing when and how BLM authorizes temporary changes in grazing 
use;
     An amendment raising service charges for a crossing 
permit, transfer of preference, and cancellation and replacement of a 
grazing fee billing;
     An amendment limiting the applicability of certain 
prohibited acts to those allotments where the permittee or lessee is 
authorized to graze;
     An amendment providing authority for BLM to issue 
immediately effective decisions on nonrenewable grazing permits or 
leases or on decisions affecting applications for grazing use on 
designated ephemeral or annual rangelands;
     An amendment clarifying the effect of an administrative 
stay on a decision to modify or renew a grazing permit or lease, or a 
decision to offer or deny a

[[Page 39408]]

permit or lease to a preference transferee; and
     An amendment clarifying that a biological assessment or 
evaluation prepared for a Section 7 consultation under the ESA is not a 
decision for purposes of protest or appeal.
    Additional amendments are also effected by this decision. They are 
identified in the Preamble, Part V. Section-by-Section Analysis and 
Response to Comments, as well as in the regulatory text in this final 
rule.
    One comment on the DEIS stated that BLM ``subverted'' the NEPA 
process by issuing the DEIS after the proposed rule was published and 
rewriting an earlier draft.
    We discuss this comment in detail under Response to General 
Comments, General Opposition, section IV.C. of this preamble.

B. Alternatives Considered

    BLM considered three alternatives in the EIS to address issues that 
were raised by the public during the EIS scoping period and issues that 
surfaced during implementation of the 1995 regulations. Alternatives 
were developed for 18 issues and combined. As stated in the EIS, the 
regulatory changes are narrow in scope, do not include changes in 
grazing fees or the fundamentals of rangeland health, or the standards 
and guidelines for grazing administration, and otherwise leave the 
majority of the 1995 regulatory changes in place. The changes that are 
analyzed address specific issues and concerns that have come to BLM's 
attention. These issues and concerns came to the fore as areas where 
BLM could improve working relations with permittees and lessees, 
protect the health of the rangelands, and improve administrative 
efficiency and effectiveness, including resolution of legal issues. The 
alternatives included Alternative 1, the required ``no action'' 
alternative, which would have retained the 1995 regulations, 
Alternative 2, the proposed action alternative, and Alternative 3, the 
modified action alternative.
    The following is a brief description of the alternatives:
    Alternative 1, No Action--This alternative would not have changed 
the regulations. Its consideration is required under NEPA.
    Alternative 2, Proposed Final Regulations--This alternative is 
BLM's proposed action and the agency's ``preferred alternative.'' We 
modified the alternative between the draft and final EIS in response to 
public comments. This alternative represents BLM's preferred regulatory 
approach after the agency considered the results of public scoping and 
comments on the December 2003 proposed rule.
    Alternative 3--Modified Action Alternative--This alternative 
differs from the preferred alternative in several respects:
     The 5-year phase-in of changes in use greater than 10 
percent would have been discretionary rather than mandatory,
     Temporary nonuse would have been limited to 5 years rather 
than the current limit of 3 years,
     BLM would not have been required to use both assessments 
and monitoring as bases for determinations of rangeland health,
     Prohibited acts would have included failure to use 
certified weed seed free forage, grain, straw or mulch when required by 
BLM,
     The third category of prohibited acts, which pertain to 
violations of certain Federal or state laws or regulations, would have 
been removed from the regulations.

C. Environmentally Preferable Alternative

    The Council on Environmental Quality's regulations for implementing 
NEPA (40 CFR 1505.2(b)) require that the Record of Decision specify the 
environmentally preferable alternative.
    We determined the environmentally preferable alternative to be the 
Proposed Action (Alternative 2). The Proposed Action provides for the 
beneficial use of the public lands for livestock grazing while 
maintaining and improving the health of the land. The reasons why we 
determined the Proposed Action to be environmentally preferable to each 
of the alternatives are listed below.
    The Proposed Action may result in more short-term adverse impacts 
in some areas than under the No Action alternative. However, it is 
expected to result in more beneficial long-term impacts than either the 
No Action alternative or the Modified Action Alternative (Alternative 
3).
    We determined that the Proposed Action is environmentally 
preferable to the No Action alternative for the following reasons:
     Under the Proposed Action a standards assessment will be 
used by the authorized officer to assess whether rangeland is failing 
to achieve standards or that management practices do not conform to the 
guidelines. BLM will use standards assessment and existing or new 
monitoring data to identify significant contributing factors in failing 
to achieve standards or conform with guidelines. The No Action 
alternative does not require monitoring. Use of monitoring data will 
enable more rigorous scientific analyses. As a result changes in range 
management actions will be more effective and decisions to increase or 
decrease active use will be more sustainable and less vulnerable to 
appeal.
     The Proposed Action allows up to 24 months (or longer if 
necessary to accommodate legally-required processes of another agency) 
following a determination on rangeland standards for BLM to formulate, 
propose, and analyze the appropriate action. This will allow BLM to 
complete required analyses and consultations, and provide additional 
time to collaborate with the permittee/lessee to examine alternatives 
and select the best solution for a sustainable decision with more 
acceptance from the permittee/lessee and more effective action to 
change grazing management to improve resource conditions. We expect the 
added collaboration to result in decisions that are less likely to be 
appealed. This will also allow more time to complete any necessary NEPA 
analysis and to ensure compliance with all applicable and relevant laws 
and regulations. BLM believes that adoption of the proposed rule will 
lead to improved land conditions in the long-term as indicated in the 
analysis in section 4.5 of the Addendum to the EIS. That analysis 
states that some adverse impacts are unavoidable, but in the long-term 
better and more sustainable decisions would be developed by using 
monitoring.
     The 5-year phase-in of reductions in active use of greater 
than 10 percent (which will likely be required on only a small 
percentage of allotments, as explained in detail in part III.D.3. of 
this preamble) may result in short-term adverse impacts to natural 
resources on some allotments. A phase-in period would avoid the adverse 
impacts of sudden herd size reductions on permittees/lessees. The 
ability of BLM to use the phase-in period helps BLM and the permittee/
lessee to work collaboratively to ensure the appropriate changes in 
range management practices on a timely basis, while still retaining 
authority to implement changes on a faster time schedule if necessary 
to address ESA or other resource concerns.
     The provision for shared ownership in range improvements 
under the Proposed Action is expected to encourage investment in such 
projects by cooperators and result in improvements in resource 
condition.
     The Proposed Action has no limit on the number of years of 
nonuse that can be taken on an allotment. The No Action alternative has 
a 3 consecutive year limit on nonuse. The removal of

[[Page 39409]]

the limit under the Proposed Action improves cooperation with the 
permittee/lessee when nonuse is the best management practice to benefit 
resource conditions, e.g., to remedy damage caused by fire, flood, 
drought, etc. BLM would be able to authorize nonuse on an annual basis 
for resource conservation, enhancement, or protection. The availability 
of nonuse as an easy-to-implement, collaborative option should result 
in more rapid recovery in damaged areas and more rapid progress toward 
meeting resource condition objectives. Further, it is a simpler process 
to approve an application for nonuse than it is to impose a formal 
suspension, thereby improving management efficiency in those cases 
where all involved parties agree that nonuse is warranted.
     The Proposed Action removes requirements that BLM consult 
with the interested public on day-to-day grazing matters, and requires 
that BLM provide opportunities for the interested public to participate 
in the decision-making process when the focus is on planning or on the 
preparation of reports that evaluate data that are used in grazing 
decisions. Less stringent requirements for public participation 
requirements in routine grazing management matters and excising non-
participating interested publics from the list of those who it attempts 
to consult will free up BLM resources for more effective management to 
benefit the natural environment.
     The Proposed Action removes the requirement that on 
Federal land BLM seek livestock watering water rights in the name of 
the United States to the extent allowed by State law, and thus provides 
BLM additional flexibility for cooperative development of water 
projects that will benefit livestock grazing management and wildlife.
     The Proposed Action removes the provision that directs BLM 
to take action to remedy improper grazing practices when the authorized 
officer determines that existing livestock grazing management needs to 
be changed to achieve the conditions described in the fundamentals of 
rangeland health, and makes it clear that standards evaluation and 
conformance determination will be the benchmark by which we determine 
the need to adjust grazing management. It retains the requirement that 
standards and guidelines developed by BLM State Directors be consistent 
with the Fundamentals. The resulting improved efficiency in 
implementing our rangeland health improvement processes will benefit 
the environment.
    We determined that the Proposed Action is environmentally 
preferable to Alternative 3 (Modified Action) for the following 
reasons:
     Under the Proposed Action a standards assessment will be 
used by the authorized officer to gauge whether rangeland is failing to 
achieve standards or that management practices do not conform to the 
guidelines. BLM will use standards assessment and existing or new 
monitoring data to identify significant contributing factors in failing 
to achieve standards or conform with guidelines. Under Alternative 3, 
monitoring is discretionary. Consequently, some rangeland health 
determinations would not be as rigorously developed as under the 
proposed action. Using existing or new monitoring data will lead to 
more scientifically sound analyses. As a result, changes in range 
management actions will be more effective, and decisions to increase or 
decrease active use should be less vulnerable to appeal.
     The Proposed Action has no limit on the number of years of 
nonuse that can be taken on an allotment. The Modified Action 
Alternative, Alternative 3, has a 5 consecutive year limit on nonuse. 
The removal of the limit under the Proposed Action enhances cooperation 
with the permittee/lessee when nonuse is the best management practice 
to benefit resource conditions, e.g., to remedy damage caused by fire, 
flood, drought, etc. BLM would be able to authorize nonuse on an annual 
basis for resource conservation, enhancement, or protection. The 
availability of nonuse as an option should result in more rapid 
recovery in damaged areas and more progress toward meeting resource 
objectives.
     Under the Proposed Action, BLM may impose civil penalties 
on a permittee/lessee (e.g., canceling his grazing permits) if he is 
convicted of violating certain specific Federal or state environmental 
and cultural laws. Alternative 3 would eliminate the potential civil 
penalty for a permittee/lessee because such an action is not included 
under ``prohibited acts'' under Alternative 3.
     Alternative 3 includes failing to use weed seed-free 
forage products (when required by the Authorized Officer) as a 
``prohibited act,'' and the Proposed Action does not include it as a 
prohibited act. While a weed-seed free forage provision would be more 
environmentally desirable, due to the lack of state weed seed-free 
forage laws in some western states, BLM has decided to work with each 
state in its efforts to develop a law, and will pursue enforcement of 
weed seed-free forage on public lands through a subsequent, separate 
rulemaking.

D. Decision Rationale

    During the years that BLM has been working with the 1995 grazing 
regulations, we recognized several areas where BLM could benefit from 
amending the 1995 regulations. Based on the analysis in the EIS 
(including the Revisions and Errata document issued June 17, 2005, and 
the Addendum to the FEIS, published March 31, 2006), which analyzes 
three alternatives for amending the regulations, and a review of public 
comments, we selected Alternative 2 (Proposed Action).
    BLM provided opportunities for public involvement throughout the 
process of preparing the EIS and the publication of the Advanced Notice 
of Proposed Rulemaking and the proposed rule in the Federal Register. 
We considered all public comments, both oral and written. We made 
changes in the final rule and EIS as a result of public comment and 
further review.
    The Congressionally mandated purposes for managing BLM-administered 
lands (public lands) include both conserving the ecosystems upon which 
species depend and providing raw materials and other resources that are 
needed to sustain the health and economic well-being of the people of 
this Nation. To balance these sometimes conflicting purposes, we 
selected the alternative that will reduce confusion that has been 
evident over recent years, increase clarity, enhance administrative 
effectiveness, and provide for grazing use while maintaining the health 
of the land. FLPMA clearly states that the Nation's public lands are to 
be managed on the basis of multiple use and sustained yield principles. 
FLPMA defines BLM's mission to include livestock grazing as one of many 
uses of public lands. However, FLPMA does not identify where livestock 
grazing will occur and how livestock grazing operations will be 
conducted. Those decisions are made during the preparation of land use 
plans and more site-specific decisions, such as allotment management 
plans, and through issuance of grazing permits and leases. These 
regulations provide the framework for managing livestock grazing where 
BLM has determined it to be an appropriate use under multiple use 
principles. The regulations provide for including all practical means 
to avoid or minimize environmental harm in implementing BLM's livestock 
grazing program and future decisions under these regulations within the

[[Page 39410]]

context of BLM's multiple use and sustained yield mission under FLPMA.
    The reasons for selecting Alternative 2 are that it--
     Best meets the purpose of and need for the action, as 
described in the EIS;
     Amends portions of the 1995 regulations and retains the 
emphasis on BLM's rangeland management objectives and the 1995 
regulations to maintain and improve the health of the land;
     Builds on the relationships between BLM and livestock 
permittees and lessees;
     Makes changes in the 1995 regulations needed to comply 
with court decisions; clarifies certain provisions in the 1995 
regulations that have been found to be unclear;
     Is consistent with statutory requirements and national 
policy; and
     Is the environmentally preferable alternative for the 
reasons described in the Environmentally Preferable Alternative section 
of this Record of Decision.
    A specific rationale for the selection of each major regulatory 
amendment is discussed below. Rationale for other changes in the 
regulations appears in Part V of this Preamble under Section by Section 
Analysis and Response to Comments.
1. Analysis and Documentation of Social, Economic and Cultural Effects
    The final rule amends paragraph (c) of section 4110.3 on changes in 
grazing preference to provide that BLM will analyze and, if 
appropriate, document the relevant social, economic, and cultural 
effects of a proposed action. This will improve consistency when BLM 
documents its consideration of social, economic, and cultural effects 
of certain grazing decisions, thereby improving working relations with 
permittees and lessees.
    Generally, BLM managers consider the possible effects of their 
decisions through the NEPA process. NEPA requires the analysis of 
social, economic, and cultural effects of proposed actions. However, 
the current grazing regulations are silent on the issue.
    The preferred alternative adds a new provision requiring BLM to 
analyze and, if appropriate, document the relevant social, economic, 
and cultural effects of a proposed action before changing grazing 
preference. This will ensure a consistent approach to the 
decisionmaking process for those most directly affected by a decision 
to change grazing preference. We did not select Alternative 1, the 
continuation of the current regulations, because the regulations would 
remain silent on this issue and potentially foster inconsistent 
consideration of the social, economic, or cultural effects of changing 
preference. Alternative 3 does not differ from the preferred 
alternative.
2. Phase-in of Changes in Active Use of More Than 10 Percent
    The final rule amends section 4110.3-3 on implementing changes in 
active use by providing for a 5 year phase-in of changes in active use 
when that change exceeds 10 percent. The rule provides that changes may 
be implemented in less than 5 years by agreement between BLM and the 
permittee or lessee. The preferred alternative gives BLM sufficient 
discretion to handle a wide range of circumstances when changing active 
use, while giving permittees and lessees additional time to make 
changes in their overall business operations. Changes in active use 
exceeding 10 percent are infrequent, but may create significant 
disruptions for an individual permittee or lessee when they do occur. 
On the other hand, as we have stated elsewhere in this preamble, if 
conditions are such that phasing in changes exceeding 10 percent would 
not prevent significant resource damage, or if conditions such as 
drought, fire, flood, or insect infestation require that resources be 
protected immediately, BLM can close allotments or portions of 
allotments under section 4110.3-3(b).
    The 1995 regulation amendments deleted the then existing provisions 
regarding the timing of implementation of decisions to change grazing 
use. In some instances, this lack of guidance has led to decisions for 
full implementation of grazing reductions in a single season, resulting 
in disruptions of ranching enterprises.
    The preferred alternative provides that BLM will implement changes 
in active use in excess of 10 percent over a 5-year period unless (1) 
an agreement with the affected permittee or lessee is reached to 
implement the change within a shorter period of time, or (2) the 
changes must be made before 5 years have passed in order to comply with 
applicable law. Prior to 1995, the regulations provided for a 5-year 
implementation period that proved to be a practical interval for 
implementing changes. The phase-in should help permittees and lessees 
to avoid sudden adverse economic effects resulting from a reduction by 
allowing time to plan livestock management changes such as in herd 
size. The total number of allotments affected by the preferred 
alternative is expected to be small, because only 16 percent of the 
allotments evaluated during the last 5 years needed adjustments in 
current livestock grazing management. See Section 4.3.1 of the EIS. 
Most of these adjustments have been made in the season of use, or in 
movement and control of livestock, rather than in active use. Finally, 
the rule retains provisions for immediate, full implementation of a 
decision to adjust grazing use if continued grazing use poses an 
imminent likelihood of significant soil, vegetation, or other resource 
damage.
    We did not select Alternative 1, the continuation of existing 
regulations, because the 1995 regulations were silent regarding the 
timing of implementation of decisions to change grazing use. If, for 
example, a permittee or lessee challenged full implementation of a 
grazing reduction, appealed the decision, and was granted a stay of the 
decision by IBLA, then implementation of the grazing decision would be 
delayed. Until the appeal is resolved, grazing would continue at 
greater levels than are desirable, and delaying implementation of 
necessary changes. The ability to phase in changes may help avoid 
appeals and stays, thus improving administrative efficiency.
    We did not select Alternative 3, which would have made the 5-year 
phase-in discretionary, because we felt that additional discretion was 
not warranted when considering the small number of allotments that 
would be affected. Since the rule retains provisions for immediate, 
full implementation of a decision to adjust grazing use, we believe the 
provision for phase-in of changes, coupled with the resulting improved 
cooperation with permittees and lessees, will result in greater 
efficiency and improved resource conditions in the long-term.
3. Sharing Title to Permanent Range Improvements
    The final rule amends section 4120.3-2 on cooperative range 
improvement agreements by providing for shared title of permanent range 
improvements. Sharing title between cooperators and BLM allows 
operators to maintain some asset value for investments made, improving 
working relationships and encouraging private investment in range 
improvements.
    In 1995, the regulations were revised to provide that permittees 
and lessees do not share title with the United States. BLM's data 
indicate that construction of range improvements has declined since 
that rule change. The 1995 rule change is one among several factors 
that may have contributed to the decline. The preferred alternative 
provides that BLM and cooperators share title to permanent

[[Page 39411]]

structural range improvements in proportion to their contribution to 
on-the-ground project development and construction costs.
    Private investment in range improvements may lead to better overall 
watershed conditions and improved wildlife habitat. BLM believes this 
will be the case because allowing shared title to range improvements 
provides an opportunity for permittees and lessees to document 
investment in their business enterprises, which is useful for securing 
business capital and demonstrating the value of their overall private 
investment in public and private lands. Permittees and lessees perceive 
this recognition of investment as crucial to their business, and 
therefore as an important factor when considering personal investment 
in range improvements. Most existing and, since 1995, all new permanent 
structural range improvements are implemented through Cooperative Range 
Improvement Agreements that include provisions to protect the interest 
of the United States in its lands and resources and ensure BLM's 
management flexibility on public lands.
    We did not select Alternative 1, which does not allow shared title 
of range improvements, because it did not contain any incentive for 
private investment on public lands or recognize the contributions made 
by permittees and lessees. This lack of recognition of investments may 
have contributed to the substantial drop in construction of new range 
improvement projects following the removal of shared title provision in 
the 1995 rule. Alternative 3 does not differ from the preferred 
alternative.
4. Cooperation With Tribal, State, County, or Local Government-
Established Grazing Boards
    The final rule amends section 4120.5-2 on cooperation with Tribal, 
state, county, and Federal agencies by adding a requirement to 
cooperate with Tribal, state, county, or local government-established 
grazing boards for purposes of reviewing range improvement and 
allotment management plans. This will improve our cooperative 
relationship with government-established agencies and boards. The 
changes also comply with Executive Order 13352 of August 26, 2004 (69 
FR 52989), on Facilitation of Cooperative Conservation.
    State and local grazing interests had expressed concern that BLM 
has not used existing established grazing advisory boards effectively. 
Grazing board review and input, to the extent consistent with the 
applicable laws of the United States, will help us consider how to 
apply land management practices and spend range improvement funds. 
Cooperation with grazing boards, where they exist, will benefit BLM 
land managers because the boards can contribute resource-related 
information from local subject matter experts, thus increasing our 
ability to develop appropriate strategies for managing grazing 
allotments and developing range improvements. This provision is 
consistent with section 4120.5-1, which requires cooperation, to the 
extent appropriate, with all groups and individuals, including Tribal 
entities, to achieve the objectives of grazing management. These 
locally established grazing boards, where they exist, would be a 
valuable tool for gathering additional local input for BLM's 
decisionmaking processes and would help satisfy the FLPMA Section 
401(b)(1) provision that calls for BLM to consult with local user 
representatives when considering range rehabilitation, protection, and 
improvement actions.
    We did not select Alternative 1, which did not require cooperation 
with grazing boards, because we want to encourage and institutionalize 
participation by these grazing boards when we are preparing range 
improvement or allotment management plans, to ensure a consistent, 
cooperative approach. Alternative 3 does not differ from the preferred 
alternative.
5. Removal of Temporary Nonuse Limit
    The final rule moves the provisions on temporary nonuse from 
section 4130.2(g) to section 4130.4 on authorization of temporary 
changes in grazing use within the terms and conditions of permits and 
leases including temporary nonuse, and amends this section by removing 
the 3-consecutive-year limit on temporary nonuse. The agency needs the 
flexibility to authorize temporary nonuse on an annual basis so that it 
may adapt its management to the needs of the resources as well as the 
resource user. This flexibility will improve working relationships with 
permittees and lessees and provide another tool to protect the health 
of rangelands.
    Prior to the 1995 regulatory change, a permittee or lessee could 
apply for temporary nonuse of all or a portion of his active grazing 
use, and there was no restriction on the number of consecutive years of 
nonuse. The 1995 rules established provisions for ``conservation use,'' 
which provided an alternative to annually authorized nonuse and 
introduced a 3-consecutive-year limit on temporary nonuse. However, a 
1999 court ruling determined that BLM did not have authority to issue 
conservation use permits, resulting in a regulatory framework that 
limits BLM's authority to approve temporary nonuse to 3 consecutive 
years.
    Temporary nonuse is one of the most efficient means BLM has at its 
disposal to facilitate nonuse when drought, wildfire, or other episodic 
events dictate nonuse. The 3-consecutive-year limit on temporary nonuse 
restricts BLM's ability to respond to resource conservation, 
enhancement, or protection needs, or the personal or business needs of 
the permittee or lessee. Even if BLM believes that resources would 
benefit and would like to approve nonuse, we are prevented from using 
temporary nonuse after 3 years and forced to use alternative authority. 
The removal of the limitation on temporary nonuse in the preferred 
alternative provides regulatory flexibility for responsible and 
responsive rangeland management.
    We did not select Alternative 1 or 3 because they restricted 
temporary nonuse to 3 or 5 consecutive years, respectively. We believe 
that there should be no rigid limit on the number of consecutive years 
of nonuse for reasons of resource conservation, enhancement, or 
protection (as opposed to nonuse for business or personal reasons). 
There may be times when nonuse is justified for longer than 5 years, 
which BLM will determine based on monitoring and standards assessment 
on a year-to-year basis.
6. Requiring Assessment and Monitoring for Determinations on Standards 
and Guidelines
    The final rule amends section 4180.2 on standards and guidelines 
for grazing administration to provide that BLM will use standards 
assessment and monitoring data to support a determination that existing 
grazing management or levels of use are significant factors in the 
failure to meet standards or conform to guidelines. If a standards 
assessment indicates to the authorized officer that the rangeland is 
failing to achieve standards or that management practices do not 
conform to the guidelines, then he will use relevant monitoring data to 
identify the significant factors contributing to the failure to achieve 
the standards or to conform with the guidelines. The preferred 
alternative will protect the health of the rangeland and improve 
working relations with permittees and lessees because determinations on 
the causes of failure to meet a standard will be based on monitoring 
and assessment data, thus helping to ensure

[[Page 39412]]

comprehensive and sustainable decisions.
    Many members of the public articulated a strong interest in BLM's 
monitoring program, and expressed concern about the adequacy of data 
used to support our decisions and determinations. Some individuals are 
under the impression that BLM supports determinations with a one-time 
assessment of rangeland conditions. Current regulations do not specify 
the methods to be used to analyze and evaluate rangeland conditions. 
However, guidance exists in policy in BLM Manual Section 4180 and 
Handbook H-4180-1.
    Raising the issue of monitoring from the policy level to the 
regulatory level will help BLM to focus monitoring efforts in those 
areas with critical resource issues, as disclosed by standards 
assessments. Under the preferred alternative, monitoring will not be 
necessary on every allotment in order to make a determination, but only 
on those allotments that fail to meet standards or conform with 
guidelines due to levels of grazing use or management practices. By the 
end of Fiscal Year 2002, BLM had determined that about 16 percent of 
the 7,437 allotments evaluated were not meeting land health standards 
because of existing livestock grazing management. Since these 
assessments were first focused on areas with known problems, it is 
reasonable to assume that the proportion of allotments not likely to 
meet standards because of livestock grazing management practices or 
levels of use in the future will not exceed 16 percent. Thus, at a 
maximum, the preferred alternative may require monitoring data to 
support 16 percent of the future determinations. We expect to have 
appropriate monitoring data to support a significantly larger 
proportion of our determinations, regardless of whether or not they 
involve a finding of failure to meet standards due to livestock 
grazing. While BLM cannot control the number of appeals or lawsuits 
resulting from grazing decisions, we believe ensuring sufficient 
monitoring will reduce the number of instances where appropriate action 
is delayed because of protracted administrative and judicial processes.
    We did not select Alternative 1 because it left the regulations 
unchanged, that is, silent on the basis for supporting a determination. 
We did not select Alternative 3 because it required determinations to 
be supported by either standards assessments or monitoring, not both. 
Neither of these alternatives is responsive to the concern about 
monitoring data, and neither provides the level of assurance desired 
that critical management decisions would be based on appropriate 
monitoring data.
7. Time Frame for Taking Actions
    The final rule amends sections 4180.1 and 4180.2(c). These sections 
cover fundamentals of rangeland health, and standards and guidelines 
for grazing administration, respectively. We have removed the language 
in section 4180.1 of the proposed rule that would have required, for 
those areas where state or regional standards and guidelines have not 
been established and where conditions described by the fundamentals of 
rangeland health do not currently exist, that BLM modify grazing 
practices before the start of the next grazing year that follows BLM's 
completion of mandatory procedural and consultation requirements. 
However, the fundamentals themselves remain as approved in 1995. 
Section 4180.2(c) was amended to allow BLM adequate time (up to 24 
months) for cooperative formulation, proposal, and analysis of 
appropriate management actions when we determine that changes in 
current management are necessary to ensure progress towards achieving 
standards and conforming with guidelines. Allowing additional time for 
this process will help improve the health of rangelands, because 
cooperatively-developed management actions based on reasoned analysis 
have a greater likelihood of successful implementation, and yield long-
lasting resource benefits.
    The preferred alternative for section 4180.1 is Alternative 2 in 
the EIS. It would have directed the authorized officer to modify 
grazing management if BLM determined that conditions described by the 
fundamentals of rangeland health do not currently exist because of 
current grazing practices, but only where standards and guidelines have 
not been established. However, as a result of comments and 
implementation experience, we are adjusting the proposed action to 
achieve a better reflection of the relationship between the 
fundamentals and the standards and guidelines. The regulatory provision 
for adjusting management to ensure progress towards rangeland health 
would be in section 4180.2 rather than both sections 4180.1 and 4180.2. 
While BLM still must take appropriate action to remedy grazing 
management practices that are detrimental to rangeland health, now the 
final rule allows time for cooperative formulation, proposal, and 
analysis of appropriate management actions prior to their 
implementation.
    As explained in the 1995 final rule, the ``fundamentals will guide 
BLM in the development of plans for public lands and in the 
authorization of grazing related activities consistent with the 
provisions of FLPMA and TGA, that lead toward or maintain healthy 
sustainable rangelands.'' 60 FR 9954. The 1995 rule further explained 
the broad nature of the fundamentals: ``[F]undamentals are statements 
of the conditions that are representative of healthy rangelands across 
the West, and as such, are relatively broad * * *.'' Id. The 
fundamentals, therefore, reflect goals that may be incorporated into 
land use plans. With respect to grazing, the 1995 rule explained 
specifically that the ``State or regional standards and guidelines will 
be developed under the umbrella of the fundamentals, to provide 
specific measures of rangeland health and to identify acceptable or 
best management practices in keeping with the characteristics of a 
State or region such as climate and landform.'' Id. In essence, the 
``overarching principles'' set forth in the fundamentals were to be 
supplemented by standards and guidelines tailored to more local 
conditions.
    Although the 1995 rule established requirements for ``appropriate 
action'' when either the fundamentals or established standards and 
guidelines were not being met due to existing grazing, we believe 
requiring ``appropriate action'' in both circumstances is unnecessary 
and inefficient. Standards and guidelines have been developed in 
conformance with the fundamentals and adopted for all states and 
regions except southern California. These standards and guidelines 
provide the basis for the application of the broadly stated 
fundamentals to the management of public lands. In southern California, 
the fallback standards and guidelines provide for the application of 
the fundamentals to those public lands. This means that, in the 
California Desert District, the fallback standards and guidelines will 
be applied until standards and guidelines for the District are 
developed and approved, so that requiring BLM action under section 
4180.1 is unnecessary.
    On all other public lands, the standards and guidelines provide 
specific measures for achieving healthy rangelands within the framework 
of the broad fundamentals. Therefore, a duplicate administrative 
mechanism to require ``appropriate action'' under the fundamentals is 
unnecessary. Further, as previously noted, the fundamentals are broad 
concepts that describe healthy rangelands. Because the standards and

[[Page 39413]]

guidelines are more specific, they lend themselves to determining 
whether the ecosystem functions and processes as described by the 
fundamentals are in fact occurring, and to communicating achievement 
status in a way that the fundamentals do not. For this same reason, the 
standards also lend themselves to enforcement in a way that the 
fundamentals do not. Finally, we believe that removing the 
``appropriate action'' requirement under the fundamentals will better 
enable authorized officers to focus on the implementation of the 
standards and guidelines, which we in turn expect to result in more 
efficient implementation of decisions that will maintain healthy 
rangelands.
    The 1995 regulations sought to implement timely and responsive 
remedial action when BLM determines that existing practices are 
significant factors in failing to achieve standards and conform to 
guidelines. However, in practice, the requirement to take action 
``before the start of the next grazing year'' has proven to be 
impracticable, often allowing BLM considerably less than a year to 
begin action. If BLM determines in October, for example, that an 
allotment failed a standard due to grazing management, in many cases 
only 4 months would be available before the typical March begin date 
under current regulations to develop new management alternatives before 
the beginning of the next grazing year for that allotment. This 
restricted time frame has made it difficult or impractical to implement 
decisions, and has damaged working relationships with permittees and 
lessees. If a common allotment with several permittees or lessees does 
not meet a standard because of current grazing practices, and numerous 
public land users wish to participate in the formulation of remedial 
management actions, the time frame for reaching consensus may be 
lengthy. In these instances it is very difficult to develop and 
implement appropriate action before the next grazing year. Further, 
failing to meet the deadline in one case opens the involved BLM office 
to legal action, to which resources and personnel must be devoted, 
diminishing that office's ability to meet the deadline in all cases, 
possibly leading to a snowballing effect as litigation mounts.
    During the formulation, proposal, and analysis of appropriate 
action, several steps are necessary to develop sustainable management 
strategies that will yield long-term improvements in rangeland health. 
Adequate time is needed to obtain comment and input from permittees, 
lessees, states and the interested public on reports that are used as 
bases for making decisions to modify permits or leases, or otherwise to 
consult and cooperate with permittees, lessees, states, and Tribes; to 
carry out consultation with the Fish and Wildlife Service (FWS) or the 
National Oceanic and Atmospheric Administration (NOAA Fisheries), or 
both, under Section 7 of the ESA, 16 U.S.C. 1536; and to complete 
analysis and documentation required by NEPA.
    The preferred alternative for section 4180.2(c) establishes a more 
reasonable time frame within which BLM must take appropriate action if 
we determine that existing grazing management or levels of use are 
significant factors in the failure to meet standards or do not conform 
with guidelines. Generally, under the final rule, BLM must develop 
appropriate action as soon as practicable but not later than 24 months 
after the determination and then implement that action no later than 
the start of the next grazing year.
    The final rule at section 4180.2(c) has been amended between the 
proposed and final rule. It now includes a provision extending the 
deadline for developing appropriate action if legally required 
processes that are the responsibility of another agency prevent 
completion within 24 months. For example, if an ESA Section 7 
consultation is required, it may be difficult to complete the process 
within the 24-month time frame.
    This extended deadline will allow BLM to fulfill all required legal 
obligations and should result in more sustainable and effective 
decisions. Taking time at this stage of the process, and involving 
those most directly affected by BLM decisions, to propose, formulate, 
and analyze appropriate actions will save time in the future by 
reducing the likelihood of appeals and litigation that may occur as a 
result of hastily prepared management actions.
    We did not select Alternative 1 because the 1995 regulations did 
not provide enough time to formulate and analyze management 
alternatives and complete all consultation and documentation 
requirements. Alternative 3 in this respect was the same as the 
proposed action.
8. Conservation Use
    The final rule amends several sections of the regulations by 
removing all reference to conservation use and authority to issue 
conservation use permits. This affects sections 4110.0-5 Definitions, 
4120.3 Range improvement permits, 4130.2 Grazing permits or leases, 
4130.5 Free use grazing permits, 4130.8 Service charges, 4140.1 
Prohibited acts. The1995 regulations allowed BLM to issue 
``conservation use'' permits for the purpose of protecting the land, 
improving rangeland conditions, or enhancing resource values. This 
authority was challenged in court, resulting in a ruling that BLM did 
not have authority to issue permits exclusively for conservation 
purposes. By removing conservation use references from the final rule 
we are bringing the regulations into compliance with the court's 
holding.
    We did not select Alternative 1 because it proposed to leave the 
conservation use authority in the regulations. Alternative 3 does not 
differ from the preferred alternative.
9. Definition of Preference, Active Use and Removal of Permitted Use
    The final rule revises the definition of ``preference'' and 
``active use'' in section 4110.0-5 on definitions, and removes the term 
``permitted use'' from the rule. Where it occurred in the rule, the 
term ``permitted use'' has been replaced by either ``preference,'' 
``grazing preference'' or ``active use,'' depending on the regulatory 
context. These amendments make the definition of ``preference'' similar 
to the meaning first formally promulgated in 1978. Elimination of the 
concept of ``conservation use'' made necessary the revision of the 
definition of ``active use.'' These changes will provide a consistent 
framework for the efficient administration of public lands.
    The definition of ``preference''--along with the synonymous term 
``grazing preference''--has been revised to include the total number of 
AUMs attached to base property, including active use and use held in 
suspension. The definition also retains the meaning of a priority 
position for the purposes of receiving a grazing permit or lease.
    In 1978, BLM formally defined ``grazing preference'' to mean the 
total number of AUMs of livestock grazing on public lands apportioned 
and attached to base property owned or controlled by a permittee or 
lessee. Grazing preference represented a specific portion of forage out 
of all the vegetation that a land use plan determined to be available 
for livestock. The 1995 rule introduced some inconsistencies in the 
regulations by creating the term ``permitted use'' to mean the forage 
allocation, and narrowing the definition of ``preference'' to mean only 
a priority position as against other applicants for forage. For 
example, the regulations provide that an application to transfer 
preference shall describe the ``extent'' of the preference being 
transferred. This usage does not comport with the concept that

[[Page 39414]]

preference is a singular ``priority position,'' but rather, that it can 
be expressed in terms of its ``extent'' or quantity. Also, the current 
definition of ``permitted use'' is in some cases not appropriately used 
in the regulations. For example, even though permitted use encompasses 
``suspended use'' and ``active use,'' the regulations state that 
failure to make substantial use of the ``permitted use'' authorized by 
the grazing permit or lease shall give BLM cause to take action to 
cancel whatever amount of ``permitted use'' the permittee has failed to 
use. This is paradoxical as ``suspended use'' is by definition not 
currently available for grazing use.
    In the preferred alternative, the re-revised definition of grazing 
preference is once again consistent with its longstanding meaning--a 
meaning that was in formal usage for 17 years before it was changed by 
the 1995 grazing regulations. The definition is also consistent with 
how the term ``preference AUM's'' was informally used before 1978. 
Attaching a forage allocation to base property provides a reliable way 
to associate ranch property transactions with the priority for use of 
public land grazing privileges. This has been a foundation of BLM's 
system for tracking who has priority for those grazing privileges since 
the enactment of the TGA.
    In revising the definition of ``preference,'' this final rule seeks 
to reinstate a familiar method of identifying the total number of AUMs 
apportioned and attached to base property. Preference includes both 
active use and use held in suspension. This definition of 
``preference'' does not override the requirement that livestock forage 
allocations be made within a multiple use context as set forth in land 
use plans. The proposed definition should not be erroneously construed 
to imply that satisfying a permittee's or lessee's livestock forage 
allocation (his preference) has the highest priority when BLM employs 
land use planning or activity planning processes to determine the 
appropriate combination of resource uses on BLM-administered lands.
    Since 1995, ``active use'' has meant ``current authorized use, 
including livestock grazing use and conservation use.'' BLM must remove 
conservation use from the definition because of a court ruling that BLM 
could not issue permits exclusively for conservation purposes. In the 
final rule the term ``active use'' is the amount of forage that is 
available for grazing use under a permit or lease based on rangeland 
carrying capacity and resource conditions in an allotment.
    Permitted use was introduced as a term in the 1995 regulations to 
define an amount of forage allocated by a land use plan for livestock 
grazing. It is expressed in terms of AUMs and includes ``active use'' 
and ``suspended use''. Since we have revised the definition of 
preference to include this same livestock forage allocation, the term 
is no longer necessary.
    We did not select Alternative 1 because the definition of 
preference would have remained simply a priority position to receive a 
grazing permit or lease, a definition that was inconsistent with 
traditional usage of the term which identified the total AUMs attached 
to specific base property. The definition of active use would have 
remained unchanged and inconsistent with the need to remove 
``conservation use'' from the regulations. Alternative 3 does not 
differ from the preferred alternative.
10. Interested Public
    The final rule amends sections 4100.0-5 Definitions, 4110.2-4 
Allotments, 4110.3-3 Implementing changes in active use, 4130.2 Grazing 
permits and leases, 4130.3-3 Modification of permits or leases, and 
4130.6-2 Nonrenewable grazing permits and leases, in order to 
streamline the role of the interested public. These changes should 
foster increased administrative efficiency by focusing the role of the 
interested public on planning decisions and reports that influence 
daily management, rather than on daily management decisions themselves.
    Under the existing regulations, any person or group may obtain 
``interested public'' status simply by requesting that status for a 
specific allotment in writing or by submitting a written comment on the 
management of livestock grazing on a specific allotment. Members of the 
interested public are mailed, at government expense, documents related 
to decisions on a particular grazing allotment. BLM must also consult, 
cooperate, and coordinate with members of the interested public on a 
host of decisions. The interested public provides valuable input, but 
some of those who have enlisted as interested public rarely, if at all, 
participate in the decisionmaking process. Others have obtained 
``interested public'' status for numerous allotments, but only 
participate in the decision-making process for a select few. 
Additionally, management actions that now require consultation, 
cooperation, and coordination with the interested public include common 
management operations, such as the renewal or modification of 
individual permits, that are preceded by grazing decisions describing 
the management action to be implemented. These decisions are made 
available, with right of protest and appeal, to the interested public. 
Moreover, while formulation of grazing management decisions can greatly 
benefit from consultation with the interested public, we have found 
that consultation requirements for actions that implement those 
decisions and are intended to achieve the resource management goals set 
forth in those decisions are unnecessarily duplicative. These 
consultation requirements can slow our ability to act promptly to 
further those goals when necessary to respond to changing range 
conditions or transitory management circumstances. Clerical demands 
associated with maintaining non-participating members of the interested 
public also divert limited BLM resources from other valuable uses.
    The final rule has amended the definition of ``interested public'' 
so that one must actually participate in the decisionmaking process in 
order to maintain interested public status. This change should improve 
administrative efficiency by allowing BLM to purge the names of 
nonparticipating persons from its interested public lists. The 
regulations have also been amended to remove consultation, cooperation, 
and coordination requirements from the following decisions: (1) 
Adjustments to allotment boundaries (section 4110.2-4); (2) changes in 
active use (section 4110.3-3(a)); (3) emergency allotment closures 
(section 4110.3-3(b)); (4) issuance or renewal of individual permits or 
leases (section 4130.2(b)); and (5) issuance of nonrenewable grazing 
permits and leases (section 4130.6-2). In adopting these changes, BLM 
has attempted to balance the important role of the interested public 
with the need for prompt decisionmaking on day-to-day management 
issues. Thousands of these decisions are made annually by BLM. Actions 
are guided by broader decisions (such as allotment management plans) 
and monitoring and other reports as to which the interested public will 
continue to have an opportunity to review and provide input. In 
addition, prior to considering any on-the-ground action, BLM must 
determine whether the proposed action conforms to the applicable land 
use plan. If a proposed action does not conform to the land use plan, a 
land use plan amendment must be completed before BLM can further 
consider the proposed action. The

[[Page 39415]]

public is assured involvement in the land use planning process.
    We expect the changes in the definition and role of the interested 
public in the grazing program to improve administrative efficiency and 
lead to more timely decision making. It is BLM's expectation that this 
increased efficiency and faster reaction time will ultimately benefit 
overall rangeland health. Also note that these changes do not affect 
public participation opportunities available through the NEPA 
environmental analysis process, in administrative appeals of grazing 
decisions, or, to the extent practicable, in the preparation of reports 
and evaluations.
    After publishing the Final EIS in June 2005, BLM proposed two 
categorical exclusions (CX) for issuing grazing permits (71 FR 4159, 
January 25, 2006). One of the proposed exclusions is for issuing 
grazing permits in general, and the other is for issuing nonrenewable 
permits. As proposed, the CXs would be limited to grazing permits where 
land health standards have been assessed and evaluated and the 
authorized officer has documented that the standards are achieved, or 
if not achieved, that livestock grazing is not a causal factor; and to 
permits issued as a result of administrative action such as changing 
the termination date or the name of the permittee, and where none of 
the 12 extraordinary circumstances listed in Appendix 2 of Departmental 
Manual 516 apply. If the CXs are approved, the public would continue to 
have opportunity to participate in the grazing permitting process on 
those allotments that qualify for a CX--
     Through the development of Resource Management Plans and 
activity plans (section 4120.2),
     Before a decision is made to increase a permittee s forage 
allocation (section 4110.3-1(c)),
     To the extent practicable in the preparation of reports 
and evaluations that are used to support modifications of grazing 
permits and leases (section 4130.3-3(b)), and
     In protests and administrative appeals of grazing 
decisions (subpart 4160).
    We did not select Alternative 1, the continuation of existing 
regulations, because BLM's view is that those who become ``interested 
public'' oblige themselves to participate in the process that leads to 
a decision affecting management of the allotment(s) in which they are 
interested, and Alternative 1 does not provide for this. BLM has noted 
that in some cases, interested public who have been provided 
consultation opportunities regarding management of grazing on a 
specific allotment have failed to participate, but then file, in a 
relatively generic format, a protest and/or appeal of the final 
decision--which BLM then must address through a formal administrative 
process. BLM believes that it is appropriate to provide that those who 
forfeit their opportunities for participation in the processes leading 
up to the decision then also forfeit their opportunities to contest the 
decision after it is issued. BLM has noted that in other cases, some 
interested publics use the consultation opportunities provided to them 
as a forum for their advocacy of a particular position that has little 
direct bearing on issues at hand with respect to management of a 
specific allotment. The primary purpose for BLM allowing participation 
by the interested public in its grazing decision making process is to 
obtain specific insights regarding specific management on specific 
allotments. Such interested public participation opportunity is not 
intended to serve as a forum for espousing general opposition (or 
support) regarding programs and policies of the United States 
Government. For this and other reasons, the interested public 
provisions have proven costly to implement, have decreased 
administrative efficiency, and have, at times, hindered the 
administration of daily grazing management. Alternative 3 did not 
differ from the preferred alternative.
11. Water Rights
    The 1995 rule added section 4120.3-9 on water rights. In simplified 
form, it provides that if livestock water rights are acquired under 
state law, they shall be acquired, perfected, and maintained in the 
name of the United States to the extent allowed by the pertinent state 
law. The final rule revises the section by limiting its applicability 
to water rights acquired by the United States and by removing the 
language stating that the water rights shall be acquired, perfected, 
and maintained in the name of the United States to the extent allowed 
by the applicable state law. Removal of this requirement will clarify 
BLM's flexibility in seeking water rights, and in pursuing 
administrative options including joint ownership of water rights with 
permittees or lessees.
    Although the 1995 Federal Register preamble to the rule change 
stated that joint ownership of water rights was consistent with the 
regulations, some interpreted the provision to exclude cooperatively 
held water rights on public lands. Many water rights are currently held 
by permittees or lessees, or jointly owned with BLM. We have not seen 
evidence in these instances that a permittee or lessee holding a water 
right discourages cooperation or compliance with terms and conditions 
of grazing permits or complicates land exchanges.
    The preferred alternative retains the requirement that BLM follow 
the substantive and procedural laws of the state when acquiring, 
perfecting, maintaining, and administering livestock water rights on 
public lands. This language makes it clear that, within the scope of 
state processes, BLM may seek co-ownership of water rights with 
permittees and lessees or, in certain circumstances, agree that 
permittees and lessees own the water rights. BLM continues to have the 
option of acquiring an exclusive water right as long as we do so in 
compliance with state water law. States assign water rights under 
different state laws, regulations, and policies. The flexibility 
afforded by the preferred alternative will facilitate BLM's ability to 
administer grazing permits and leases in varied circumstances.
    We did not select Alternative 1 because it retained the wording in 
the 1995 regulation, which decreases BLM's flexibility to obtain 
livestock water rights to an extent that is less than that allowed 
under state law when BLM deems it desirable to do so. We believe that 
the preferred alternative best provides BLM with the flexibility to 
seek water rights appropriate to the circumstances. Alternative 3 does 
not differ from the preferred alternative.
12. Satisfactory Performance of Applicants
    The final rule amends section 4130.1-1, on filing applications, to 
clarify the requirements for satisfactory performance of a permit or 
lease applicant. Portions of the existing section 4110.1 on mandatory 
qualifications were moved to section 4130.1-1 and amended. These 
changes should provide applicants with a clearer statement of BLM's 
expectations, improving working relationships and increasing 
administrative efficiency.
    The existing regulations at section 4110.1(b)(2) list 3 situations 
where an applicant for a new permit would ``be deemed not to have a 
record of satisfactory performance.'' The regulation thus implied that 
more situations could lead to an unsatisfactory performance 
determination, but it did not specify further criteria. This produced 
some confusion among applicants, and it also led to some inconsistent 
application of this regulation within BLM. The final rule corrects this 
situation by stating

[[Page 39416]]

that an applicant will be deemed ``to have a record of satisfactory 
performance'' when the applicant (1) has not had a Federal grazing 
permit or lease canceled for a violation, (2) has not had certain state 
grazing permits or leases canceled, or (3) has not been barred from 
holding a grazing permit or lease by a court. The 3 criteria remain 
essentially unchanged from the existing section 4110.1(b)(2). By 
stating the provision in a positive way, however, we make it clear that 
applicants have a satisfactory record of performance unless they fail 
to meet one of these criteria.
    Other portions of existing section 4110.1 related to applications 
for renewal were also moved but not modified.
    Alternative 1, the continuation of the existing regulations, was 
not adopted because: (a) Satisfactory performance requirements are more 
appropriately addressed in the section of the regulations that 
addresses to whom BLM will issue a grazing permit or leases, rather 
than the section of the regulations that addresses who is qualified for 
grazing use on public lands; and (b) BLM intends that satisfactory 
performance requirements be clearly and unequivocally based on matters 
directly related to livestock grazing and not be based on violations of 
laws and regulations that may have no bearing on the potential ability 
of the applicant to manage grazing successfully under a BLM grazing 
permit or lease. This is consistent with the intent expressed by the 
Department when the regulations were first promulgated in 1995 that 
permittees be good stewards of the land (60 FR 9926), but sharpens the 
rule's focus on grazing lands. Alternative 3 did not differ from the 
preferred alternative.
13. Temporary Changes in Grazing Use Within the Terms and Conditions of 
Permit or Lease, Including Temporary Nonuse
    The final rule amends section 4130.4 on authorization of temporary 
changes in grazing use within the terms and conditions of a permit or 
lease, including temporary nonuse, by defining the phrase ``temporary 
changes in grazing use within the terms and conditions of the permit or 
lease.'' Under existing regulations, this phrase is not defined. The 
clarification associated with this change should improve administrative 
efficiency.
    Most permits or leases include a period of use described by 
specific dates. These dates do not always account for the natural 
fluctuations that can lead to forage availability outside the listed 
dates. Existing regulations allow for temporary changes but this 
authority has, at times, been applied inconsistently within BLM. The 
new definition clarifies the amount of flexibility BLM authorized 
officers will have when considering temporary changes. Under the new 
definition, a temporary change can be made to the livestock number and/
or period of use. Temporary changes cannot result in the removal of 
more forage than the ``active use'' specified by the permit or lease. 
Neither can a temporary change authorize grazing earlier than 14 days 
before the grazing start date or later than 14 days after the grazing 
end date specified in the permit or lease, unless an allotment 
management plan under Sec.  4120.2(a)(3) specifies different 
flexibility limits. This change will help ensure consistent application 
across BLM.
    We did not select Alternative 1, the continuation of existing 
regulations, because of the inconsistent application associated with 
the current regulations. Alternative 3 did not differ from the 
preferred alternative in this regard.
14. Service Charges
    The final rule amends section 4130.8-3 on service charges in order 
to reflect more accurately the current costs of processing and, 
thereby, contribute to administrative efficiency. Editorial 
modifications have also been made to remove a reference to 
``conservation use,'' a term that has been removed from the regulations 
generally, and provide for increased clarity.
    Current service charges are $10 for issuing a crossing permit, 
transferring grazing preference, or canceling and replacing or issuing 
a supplemental grazing fee bill. These charges are well below BLM's 
actual processing costs. The preferred alternative increases service 
charges to reasonable levels that capture more of the actual cost of 
processing. The change complies with section 304(a) of FLPMA, 43 U.S.C. 
1734(a), where reasonable charges are authorized. The newly effective 
charges are $75 for a crossing permit; $145 to transfer grazing 
preference; and $50 to cancel and replace or to issue a supplemental 
grazing fee billing. These new charges are subject to later 
modifications through public notice in the Federal Register.
    We did not select Alternative 1, continuation of the existing 
regulations, because those regulations contain a reference to 
``conservation use'' that should be removed for consistency within 
these regulations. Under existing regulations service charges could 
still be adjusted through a Federal Register notice, but it is 
efficient to make these initial changes in this well-publicized rule. 
This technique has allowed for extensive public input on the issue. 
Alternative 3 did not differ from the preferred alternative as to this 
matter.
15. Prohibited Acts
    The final rule modifies section 4140.1 on acts prohibited on public 
lands in order to reduce ambiguity and contribute to administrative 
efficiency. Some minor editorial modifications have also been made. The 
preferred alternative maintains the 3 sets of prohibited acts present 
in the existing grazing regulations.
    The first set, section 4140.1(a), addresses various grazing-
specific violations made by a permittee or lessee. The final rule 
clarifies that supplemental feed placed contrary to the terms and 
conditions of the permit or lease is a violation. The existing rule 
states only that supplemental feed placed ``without authorization'' was 
a violation, and this has produced some confusion among permittees, 
lessees, and BLM personnel. The added language clarifies that 
supplemental feeding made contrary to permit or lease terms and 
conditions is a violation even if the permittee or lessee is authorized 
to undertake some level of supplemental feeding.
    The second set of prohibited acts, section 4140.1(b), applies to 
all persons performing acts on all BLM lands, not just permittees and 
lessees. The preferred alternative clarifies that the prohibited 
activity listed in the second set must occur on ``BLM-administered 
lands.'' The existing phrase ``related to rangelands'' created 
confusion. The rule clarifies that it is a prohibited act to graze 
without a permit, lease, or other grazing use authorization. The 
amended language accounts for situations where BLM allows grazing 
through authorizations other than a term permit or lease, such as a 
crossing permit. Also, the final rule clarifies that grazing fees must 
be paid in a timely manner to avoid violating these regulations. Thus, 
this section provides, among other things, useful authority to 
encourage timely payment of grazing fees.
    The third set of prohibited acts, section 4140.1(c), pertains to 
violations of certain Federal or state laws or regulations. The final 
rule now clarifies that the section applies to prohibited acts 
performed by a permittee or lessee ``on the allotment where he is 
authorized to graze.'' This replaces ambiguous language that stated the 
provision applied to acts ``where public land administered by the [BLM] 
is involved or affected [and] the violation

[[Page 39417]]

is related to grazing use authorized by a permit or lease issued by the 
[BLM].'' Few actions on lands outside the grazer's authorized allotment 
could have triggered a violation under the existing language. The 
existing language created confusion regarding its scope while providing 
BLM with little useful authority. The more precise language of the 
final rule will be more understandable and improve the efficiency with 
which this regulation can be enforced. Violations of statutes or 
regulations on non-allotment lands will continue to be subject to the 
normal penalties available under those authorities, regardless of 
whether the violations are related to grazing use.
    We did not select Alternative 1, the continuation of existing 
regulations, due to the presence of the ambiguity previously discussed. 
Alternative 3, the Modified Action alternative, proposed two provisions 
that differed from the Proposed Action. The first provision would have 
required the use of weed seed-free forage, grain, straw, or mulch when 
required by the authorized officer. We did not include the provision at 
this time as we are still developing a nationwide weed-free policy for 
public lands. The second provision would have deleted the third 
category of prohibited acts, those pertaining to violations of certain 
Federal and state laws or regulations, from the regulations. Although 
relatively few violations have been documented, BLM believes this 
category serves a deterrent purpose and has chosen to retain it.
16. Decisions on Ephemeral or Annual Rangeland Grazing Use and 
Nonrenewable Permits
    The final rule amends section 4130.6-2 on nonrenewable grazing 
permits and leases by adding a new paragraph (b) allowing BLM to make a 
decision issuing a nonrenewable grazing permit or lease, or affecting 
an application for grazing use on annual or designated ephemeral 
rangelands, effective immediately or on a date established in the 
decision. The final rule has removed language from existing section 
4160.3(d) on final decisions that described the effect of an 
administrative stay on decisions related to designated ephemeral or 
annual rangelands and temporary nonrenewable grazing. The ability to 
make decisions on nonrenewable grazing permits and leases, or ephemeral 
or annual rangelands grazing use, effective immediately on a date 
established in the decision under final rule section 4130.6-2(b) has 
largely eliminated the need for any special stay provisions. These 
changes should improve administrative efficiency and effectiveness by 
allowing faster responses to time-sensitive requests and clarify 
compliance with legal requirements.
    The existing regulations at section 4160.3(d) state that when OHA 
stays a decision regarding designated ephemeral or annual rangeland 
grazing ``the authorized grazing use shall be consistent with the final 
decision pending'' the final determination on the appeal. In addition, 
under the existing regulations a decision shall not be in effect for a 
30-day period during which an appeal may be filed, and for an 
additional 45-day period if a petition for stay is filed. This creates 
a problem where the decision is to grant (rather than deny) the 
application for nonrenewable use, or use on ephemeral or annual ranges, 
because in some cases the forage quality rapidly declines and loses its 
nutritional value during this combined 75-day waiting period. Thus, a 
simple appeal of a decision to grant an application for use of 
ephemeral or annual rangeland, or for temporary and nonrenewable use, 
can render both the application and approval futile for the purpose 
intended, namely, to use available forage to provide nutrition for 
livestock. BLM considers this to be a procedural flaw.
    When BLM grants an application for temporary and nonrenewable use, 
or use on annual or ephemeral ranges, this indicates that BLM has 
evaluated the merits of the application and has determined that such 
use would be consistent with achieving resource management objectives 
specified in land use plans. BLM intends that the simple act of an 
appeal alone, with nothing more, should not render both the application 
and approval an exercise in futility.
    The proposed rule addressed this 75-day waiting period issue by 
placing language similar to that in existing section 4160.3(c) into 
section 4160.4(c) on appeals. However, in response to comments from 
OHA, this section has now been removed from the final rule. Instead, 
BLM may now issue nonrenewable permits as immediately effective 
decisions under section 4130.6-2(b). This change will allow time-
sensitive decisions on forage to be made and immediately put into 
practice, without waiting up to 75 days. If that decision to authorize 
the use is appealed and a stay is granted, the decision would be 
inoperative and livestock would have to be removed. In the alternative, 
if the decision is appealed and a stay is denied, the appellant would 
have the option of seeking an injunction of the application approval in 
Federal court. In either case, an appellant would be required to show 
why it would have a reasonable chance of prevailing on the merits of 
the appeal in order to halt the action, and the act of filing an 
appeal, in and of itself, would not frustrate the purposes intended by 
the application and approval.
    We did not select Alternative 1, the continuation of existing 
regulations, because of the issues discussed above. Alternative 3 did 
not differ from the preferred alternative.
17. Effect on Grazing Use When a Stay Has Been Granted on an Appeal of 
a Decision Associated With Changes to a Permit or Lease or Grazing 
Preference Transfers
    The final rule amends sections 4160.3 Final decisions and 4160.4 
Appeals, as these sections relate to administrative stays of decisions 
associated with (1) changes made to a permit or lease (other than a 
nonrenewable permit), or (2) grazing preference transfers. The final 
rule will allow grazing to continue under the terms of an immediately 
preceding permit or lease if all or a part of a decision is stayed.
    Under this provision, although the grazing decision appealed is 
stayed, grazing can continue at the previous levels of use. This 
ensures that the decision appealed is rendered inoperative for 
exhaustion purposes under 5 U.S.C. 704 and the status quo prior to 
issuance of the decision appealed remains in effect. In the instance of 
an appeal and stay preventing implementation of a new grazing 
authorization, the fact that a permittee may still be authorized to 
graze at some level is not a function of the stayed decision being 
implemented. It is worth noting that the APA provides at 5 U.S.C. 
558(c) that when a licensee has made a timely and sufficient 
application for a renewal or a new license in accordance with agency 
rules, a license authorizing an activity of a continuing nature does 
not expire until the application has been finally determined by the 
agency.
    Under the existing regulations, the effects of an administrative 
stay are addressed at Sec.  4160.3(c)-(e). Existing Sec.  4160.3(d) 
allows grazing to continue at the previous year's level when a stay is 
granted unless the permit or lease applicant had no authorized grazing 
use during the previous year. The final rule clarifies, in Sec.  
4160.4(b)(1), that BLM will continue to authorize grazing under prior 
terms when a stay is issued for all or part of a decision that (1) 
cancels or suspends a permit or lease, (2) changes the terms or 
conditions of a permit or

[[Page 39418]]

lease during its current term, or (3) renews a permit or lease. 
Existing Sec.  4160.3(d) applied the continuation of prior terms to 
decisions on ``an application for grazing authorization.'' This general 
phrase created some ambiguity that the more precise list in the final 
rule seeks to clarify.
    The continuation of grazing under prior terms in existing Sec.  
4160.3(d) does not apply to those who had no authorized grazing use in 
the prior year. Typically, this exception has affected applicants who 
obtained grazing preference through a transfer. For example, assume a 
person has recently purchased the base property of another, such as a 
ranch. The previous ranch owner's grazing preference can be transferred 
to the new owner; however, the new owner must apply for a new permit 
because the existing permit automatically expires when the transfer is 
approved. See 43 CFR 4110.2-3. If the new owner is granted a permit 
authorizing less grazing than the previous owner's permit, the new 
owner can appeal to OHA. He can also seek a stay of the BLM decision. 
If a stay is granted, however, the new owner would not be authorized to 
graze at the higher level associated with the previous ranch owner's 
permit under existing section 4160.3(d). Conversely, had no ranch sale 
occurred and a renewal permit application led to a reduction in grazing 
use, the ranch owner would face a different situation. Should he appeal 
and receive a stay, the rancher would be allowed to continue grazing at 
the higher level under his previous permit. Many believed this 
differentiation in existing section 4160.3(d) between existing 
permittees and transferees was not justified. Also, requiring any 
grazer to reduce operational levels temporarily is contrary to a stay 
designed to maintain the status quo while the appeal is considered.
    Existing Sec.  4160.3(e) also creates confusion among grazing 
users, the public, and BLM. This paragraph states that when OHA stays a 
final decision that changes authorized grazing use, the grazing use 
that will be authorized while the decision is stayed ``shall not exceed 
the permittee's or lessee's authorized use in the last year during 
which any use was authorized.'' This paragraph has since been 
interpreted by OHA to mean that the use BLM can authorize cannot exceed 
the use specified by the grazer's existing permit or lease, regardless 
of the use that may have been made under that permit or lease in the 
immediately preceding year (Fallini, Fallini Living Trust, IBLA 2002-
139, March 4, 2002).
    The final rule has addressed these issues by removing the 
discussion of stays from section 4160.3 Final decision and placing that 
in section 4160.4 Appeals. Now, when a decision on a preference 
transferee's application is stayed, BLM will issue a temporary permit 
that contains the same terms and conditions as the permit previously 
applicable to the area in question, subject to any relevant provisions 
in the stay order itself. The permit will be in effect until OHA 
resolves the administrative appeal. This change will enhance the 
continuity of grazing operations and remove some of the uncertainty 
associated with preference transfers. This change does not prevent BLM 
from making emergency allotment closures or suspending grazing use to 
protect rangeland health, but it does allow grazing to continue under 
normal circumstances as a use compatible with BLM's multiple use 
mission. BLM is making these changes to balance the exhaustion of 
administrative remedies under the APA and our responsibilities under 
FLPMA and TGA to
     Manage lands for multiple use and sustained yield,
     Regulate the occupancy and use of the rangelands,
     Safeguard grazing privileges,
     Preserve the public rangelands from destruction or 
unnecessary injury, and
     Provide for the orderly use, improvement, and development 
of the range.
    Also, to address the unclear language in existing Sec.  4160.3(e), 
these stay regulations clearly reference grazing permits and leases as 
the document upon which BLM must rely to determine allowable grazing 
use levels, and removes the language that refers to the ``authorized 
use in the last year during which any use was authorized.''
    Alternative 1, the continuation of existing regulations, was not 
selected because of the problems discussed above. Alternative 3 did not 
differ from the preferred alternative.
18. Biological Assessments and Evaluations Are Not Decisions and 
Therefore not Subject to Protest or Appeal
    The final rule adds section 4160.1(d), stating that a biological 
assessment (BA) or biological evaluation (BE) is not a BLM decision for 
purposes of protest or appeal. BAs and BEs are documents prepared by 
BLM for ESA compliance purposes. This change should improve 
administrative efficiency by lessening the time associated with ESA 
consultation.
    This change is made in response to the decision of the Interior 
Board of Land Appeals (IBLA) in Blake v. BLM, 145 IBLA 154, (1998), 
aff'd on reconsideration, 156 IBLA 280 (2002). There, the IBLA held 
that a change proposed by BLM in a permit or lease and evaluated in a 
BA or BE is a proposed decision under the existing regulations at 
section 4160.1. Blake (on reconsideration), 156 IBLA at 283-86. After 
the opportunity for a protest, that change could be set forth in a 
final decision subject to appeal under section 4160.4. Blake, 145 IBLA 
at 166. The Blake holding has led to a situation where a BLM BA or BE 
addressing possible grazing changes may trigger the need for two final 
decisions, the first of which cannot be directly implemented. BLM 
believes a BA or BE is better viewed as an intermediate step that may 
later lead to a single final decision that can be implemented. This 
regulatory change is designed to implement that view--a view that 
formed the basis of BLM actions prior to the Blake decisions. By this 
change, the Secretary has prospectively superseded the Blake decisions 
through rulemaking.
    For example, under the existing Blake interpretation, after any 
protests to a change evaluated in a BA or BE are resolved, the BA or BE 
would be subject to appeal. However, assuming there were no appeals, 
any grazing-related changes contemplated in this ``final'' decision 
would not be implemented at that time. Instead, the BA or BE is merely 
submitted by BLM for consideration by the FWS. If formal consultation 
is required, FWS later issues a biological opinion (BO) in response to 
the BA. This FWS BO may differ from BLM's BA or BE. Moreover, BLM may 
exercise discretion as it makes implementation decisions based on the 
findings and advice contained in the FWS BO. Any grazing-related 
changes are then issued as proposed decisions under section 4160.1 and 
subject to protest under section 4160.2. Assuming protests are 
resolved, a final decision is then issued and is subject to 
administrative appeal under section 4160.4. After any appeals are 
resolved, this final decision can then be implemented. This time-
consuming process has slowed the ability of BLM to respond to ESA 
related issues.
    The final rule eliminates the potential for protests and appeals of 
a BA or BE prepared by BLM. A BA or BE does not grant or deny a grazing 
permit application, assess trespass damages, or make other decisions 
that are typically subject to protest and appeal. Rather, a BA or BE is 
a tool used to decide whether to initiate formal consultation under 
section 7 of the ESA.

[[Page 39419]]

    The TGA requires BLM to provide, by appropriate rules and 
regulations, for local hearings on appeals of grazing decisions. 43 
U.S.C. 315h. These local hearings are administered by an administrative 
law judge (ALJ) from the Hearings Division of OHA. ALJ decisions can 
then be appealed to IBLA within OHA. While the Secretary has delegated 
review authority to OHA over decisions regarding land use, the 
Secretary has not delegated authority to OHA to review biological 
opinions of the FWS. See Secretarial Memorandum of January 8, 1993 
(Secretary Lujan); Secretarial Memorandum of April 20, 1993 (Secretary 
Babbitt). This final rule does not modify this longstanding policy. The 
ESA does not mandate the creation of an administrative appeal procedure 
for biological opinions and instead authorizes a civil suit in Federal 
Court. 16 U.S.C. 1540(g). Biological opinions may also be challenged in 
Federal court under the Administrative Procedure Act (APA). See Bennett 
v. Spear, 520 U.S. 154, 178 (1997).
    Alternative 1, the continuation of existing regulations, was not 
selected because it would continue the requirement that BLM issue a 
biological assessment that is created for the purposes of ESA 
consultation on a grazing-related proposed action as if it were a 
grazing decision under the TGA, and perpetuate the confusion and 
inefficiencies affecting BLM's grazing decision-making processes 
addressed above. On September 20, 2004, BLM issued Information Bulletin 
2004-148. Among other things, this IB pointed out that BLM will notify 
applicants for grazing permits or leases that if ESA matters must be 
considered in the course of processing their application for issuance 
or renewal of a grazing permit or lease or other grazing use 
authorization, that under the ESA they may request BLM to grant them 
``applicant status'' under 16 U.S.C. 1536(a)(3), and that individuals 
with applicant status will be given the opportunity to comment on and 
provide input regarding:
     The modifications suggested by the Services (i.e., U.S. 
Fish and Wildlife Service (FWS) and/or National Marine Fisheries 
Service (NMFS)) during informal consultations, in order to avoid the 
likelihood of adverse effects on listed species or critical habitat. 
See 50 CFR 402.13(b).
     The submission of information to the Services for 
consideration during the consultation. See 50 CFR 402.14(d).
     Ensuring that they make no irreversible or irretrievable 
commitment of resources, with respect to the action, that has the 
effect of foreclosing the formulation or implementation of any 
reasonable and prudent alternatives chosen to avoid violating Section 
7(a)(2). See 50 CFR 402.09.
    BLM believes that its guidance on early consultation with 
applicants addresses the need identified by Blake for consultation with 
existing or prospective permittees or lessees regarding the contents of 
biological assessments that BLM prepares for the purposes of ESA-
required consultation.
    Alternative 3 did not differ from the preferred alternative.

IV. Response to General Comments

    The extended comment period on the proposed rule ended on March 2, 
2004. We received about 18,000 comment letters and electronic 
communications. An exact count of the comments is not available due to 
the large amount of duplication among the comments; very often a single 
individual or entity submitted identical comments multiple times or via 
different media. We did not attempt to keep track of all the 
duplications, although we observed many. Large numbers of comments 
supported or opposed the proposed rule in general terms, or discussed 
issues without addressing specific sections. Most gave reasons that do 
not relate to specific provisions of the regulations. In this section, 
we will discuss the comments that addressed the regulatory process as 
it pertains to this rule, general comments supporting and opposing this 
rule, issue-oriented comments that do not address specific sections, 
and comments raising issues not addressed in the proposed rule. The 
comments are organized by subject and presented in groups that address 
a theme on the subject. We have grouped similar comments together into 
themes and addressed them with a single response.
    BLM published a Notice of Availability for the associated Draft EIS 
on January 6, 2004 (69 FR 569). On January 16, 2004 BLM published a 
notice that extended the public comment period on the proposed rule and 
Draft EIS until March 2, 2004 (69 FR 2559) so that those commenting 
would have sufficient time to review the Draft EIS.
    Over 18,000 comments were received combined on the draft EIS and 
proposed rule. Responses to those comments were summarized along with 
the comments and enclosed in the Final EIS that was published on June 
17, 2005.
    Approximately 188 comments were submitted after close of the 
extended public comment period. Five raised specific issues, and one 
was submitted from a sister agency, the U.S. Fish and Wildlife Service.
    We decided that an additional document was necessary to respond to 
those comments, while also further clarifying issues in the FEIS, and 
began working on an Addendum to the FEIS. On March 31, 2006, BLM 
published the Notice of Availability for this Addendum to the original 
FEIS, which was entitled ``Proposed Revisions to Grazing Regulations 
for the Public Lands Final Environmental Impact Statement.''

A. The Regulatory Process

    Some comments addressed the regulatory process itself. One comment 
urged BLM to clarify when comments are due by specifying a date and 
time, including time zone, stating that they find it uncertain when the 
exact comment deadline is in the electronic age. Another comment stated 
that BLM should not ignore comments received from the public during the 
rulemaking process.
    We always accept comments postmarked or electronically dated within 
the stated comment period, regardless of the time zone of origin. In 
future proposed rules, we will make this clearer. We received almost 
18,000 letters, postcards, e-mails, faxes, Web-based comments on the 
proposed rule and the DEIS, and statements made at the public meetings, 
and the BLM staff reviewed every comment numerous times.
    We have responded to comments on the content of the proposed rule 
and the DEIS in either this final rule or the final EIS (including the 
Revisions and Errata document and the Addendum to the FEIS), or both. 
In some cases, we responded with a change in the regulatory text, and 
in others with revised or additional language in the EIS. In other 
cases, we have tried to explain in this preamble why we did not adopt 
the comment. Since we received so many communications to analyze, we 
have not attempted to respond separately to every duplicate or 
substantially similar communication individually, and we did not adopt 
every suggestion contained in the comments. We often receive 
conflicting comments from the public. BLM considered all views and 
suggestions regarding the rule, especially suggestions to improve the 
language in the regulations. We discuss either in this preamble or in 
the EIS every discrete suggestion and argument raised in the comments.
    Those comments that appeared in form letters or that were expressed 
multiple times in multiple ways have

[[Page 39420]]

been addressed in a response to a prototypical example of each such 
communication, or have been summarized and responded to as a general 
comment. BLM has not ignored any comments received at any point during 
the rulemaking process.
    One comment stated that BLM should have answered questions at the 
public meetings to help clarify the proposed rule.
    During the public meetings, BLM sought direction from the audience 
on other possible policy issues or regulation changes that we should 
consider for implementation. BLM did not want to influence the audience 
or limit the possible discussion during the meetings.
    One comment stated that BLM should give more weight to comments and 
concerns from the agricultural industry than those from other 
interests. Another stated that the Public Lands Council comments should 
be the first guide in amending the grazing regulations.
    BLM considered all relevant comments from the public equally on 
their merits, whether they were from industry, other government 
agencies, staff comments, academia, other interest groups, or 
individuals.
    One comment stated that BLM ``subverted'' the NEPA process by 
issuing the DEIS after the proposed rule was published.
    We respond in detail to this comment in the discussion of NEPA 
compliance under C. General Opposition, below.

B. General Support

    Many comments supported the proposed rule because it recognized the 
socio-economic and cultural importance of public land grazing to 
adjacent and local communities and considered the concerns of public 
land grazing users. Others stated that the rule would protect the 
health of the land by relying on science, improving working relations 
with permittees and lessees, improving administrative effectiveness and 
efficiency, and making it clear that changes in use must be based on 
monitoring and assessment.

C. General Opposition

    Many of those who opposed the proposed rule stated that BLM should 
not adopt the rule because it would give ranchers preferential 
treatment at the expense of the nation's natural resources; favor 
ranchers and elevate grazing as the primary use of public land instead 
of managing for multiple resources and restoring degraded resources; 
weaken the conservation and restoration of public lands; limit public 
participation; limit BLM's regulatory authority with respect to public 
lands; and return to the archaic notion that the grazing lessee in 
essence owns the public's land. Others opposed the rule, stating that 
it hampers the work of BLM field offices, or that it fails to identify 
good and bad grazing practices. Many comments opposed the rule, 
expressing their opposition in terms of opposing public land grazing 
itself.
    BLM makes no changes in the final rule in response to these 
comments. We agree that we are a multiple use agency and that single 
uses should not generally be favored at the expense of other users or 
resources. These regulations do not favor ranchers at the expense of 
other resources. BLM has never operated under the notion that the 
grazing operator in essence owns the public land, and these regulatory 
changes do not introduce provisions that would provide for rancher 
ownership of the public lands. Rather, the changes are intended, among 
other things, to improve the cooperative environment within which 
ranching takes place on public land. At the same time we have made 
certain that these adjustments to the regulations do not harm the 
rangeland resources or prevent significant involvement of the public in 
rangeland management. We need to amend the current regulations to 
improve working relationships with permittees and lessees, to protect 
and enhance the health of the public rangelands, to resolve some legal 
issues, and to improve administrative efficiency. The final rule 
continues to provide for BLM cooperation with other government agencies 
that have responsibility for grazing on public lands. The final rule 
provides for the interested public to review, provide input, and 
comment on reports that evaluate monitoring and other data used as a 
basis for developing terms and conditions of a grazing permit or lease. 
Also, the final rule retains interested public participation when 
preparing allotment management plans, developing range improvement 
projects, and apportioning additional forage. In the final rule, the 
interested public retains the opportunity to review proposed and final 
decisions, as well as the right to protest proposed decisions and 
appeal final decisions as long as they meet the requirements of 43 CFR 
4.470.
    BLM manages for multiple uses. We also restore degraded resources, 
and believe that we can pursue restoration while administering grazing 
in accordance with the regulations.
    We do not seek to elevate grazing to be the primary use of public 
land. BLM manages the public land on the basis of multiple use and 
sustained yield. We intend the regulatory changes to improve working 
relationships with permittees and lessees. We anticipate that these 
changes will improve consultation, cooperation, and day-to-day 
coordination with them. Additionally, the rule focuses communication 
efforts on those groups most interested in the management of public 
lands for grazing. The cooperation fostered by the final rule should 
help make BLM's field work more efficient and cost effective.
    BLM does not believe that the final rule weakens environmental 
standards. For example, it strengthens standards by requiring 
monitoring and land assessment in areas that do not meet rangeland 
health standards due to grazing practices before BLM makes a 
determination to that effect. As a result, BLM's decisions are expected 
to reflect a more comprehensive analysis that in turn can be 
anticipated to help ensure defensible decisions if appealed and 
ultimately more effective decisions from both an implementation and 
land health perspective. The final rule retains the fundamentals of 
rangeland health and requires that Standards and Guidelines developed 
by BLM State Directors be consistent with these fundamentals. The final 
rule retains the regulatory requirement that BLM take appropriate 
action whenever existing grazing management practices or levels of 
grazing use are significant factors in not achieving standards or 
conforming with guidelines. The final rule retains provisions that 
allow BLM to close areas to grazing or modify grazing practice when 
necessary for immediate protection of resources because of conditions 
resulting from fire, drought, flood, or insect infestation. The final 
rule retains provisions for BLM to review grazing permits and leases 
and to make changes as needed to maintain or improve rangeland 
productivity or assist in making progress toward restoring ecosytems to 
properly functioning condition. The final rule retains provisions that 
the range improvement fund be used for improvements that benefit 
rangeland resources, including riparian area rehabilitation, 
improvement, and protection, fish and wildlife habitat improvement or 
protection, soil and water resource improvement, wild horse and burro 
management facilities, vegetation improvement and management, and 
livestock grazing management. The final rule retains provisions that 
prohibit cutting, burning, spraying, destroying or removing vegetation 
without authorization. The final rule provides

[[Page 39421]]

that BLM may suspend or cancel the permits or leases of operators who 
are convicted of performing environmentally degrading acts on 
allotments where they are permitted to graze. Nothing in the final rule 
diminishes BLM's regulatory authority.
    As for distinguishing between good and bad grazing practices, the 
rule does change the way BLM determines whether an operator has a 
satisfactory record of performance. See the discussion under section 
4130.1-1, below.
    Some comments stated that BLM should not change the regulations 
because the new regulations do not follow the Secretary's ``4 Cs'' 
philosophy.
    The changes in the regulations are designed to improve 
communication, consultation, and cooperation in the service of 
conservation. We explain elsewhere in this preamble how the various 
changes help to conserve the health of the land by encouraging 
cooperation between BLM and grazing permittees and lessees, and how the 
interested public can participate at various stages of the range 
management process.
    One comment stated that BLM should revise the proposed regulations 
in order to better reflect its multiple use mandates, and that BLM 
failed to justify reversing current regulations. Another stated that 
the proposed rule represented fundamental policy shifts. Others stated 
that the current regulations were litigated and upheld in Federal 
court.
    BLM stated the reasons for the changes in the grazing regulations 
in the proposed rule. The final rule does not contain fundamental 
policy shifts, although it amends aspects of the 1995 rule. We intend 
the revisions to improve working relations with permittees and lessees, 
to protect the health of the rangelands, to increase administrative 
efficiency and effectiveness, and resolve legal issues. The fact that a 
regulation has been approved in a court decision does not mean that the 
agency can never amend it further if it finds a need to do so. The 
changes in the final rule are driven by specific issues and concerns 
that have come to BLM's attention through experience with the 1995 
regulations and from public comments.
    The regulatory changes are narrow in scope, do not include changes 
in the fundamentals of rangeland health or the standards and guidelines 
for grazing administration, and otherwise leave the majority of the 
1995 regulatory changes in place. FLPMA provides authority and 
direction for managing the public lands on the basis of multiple use 
and sustained yield principles. FLPMA land use planning has determined 
that grazing continues to be an appropriate use of a large portion of 
the public lands administered by BLM. The final rule will not affect 
BLM's multiple use mandate. In fact, one of the major areas of focus of 
the grazing regulations revisions is protecting the health of the 
rangelands by making temporary nonuse a more flexible option, by 
requiring a BLM finding that additional forage is available for 
livestock use as opposed to other uses before authorizing livestock 
grazing use of it on a temporary or sustained-yield basis, and by 
emphasizing monitoring as a basis for BLM decisions on grazing 
management, including any increases in active use as well as decreases.
    Comments opposing the rule asserted that grazing has degraded 
wildlife habitat, soils, cultural sites, native plant communities, and 
riparian resources, leading to increased erosion, loss of range 
productivity, invasion by exotic plants, and will result in 
desertification and increased listing of species as threatened or 
endangered. Other comments stated that the proposed rule would do 
little to promote recovery of streamside vegetation and would cause 
short-term damage to rangeland and wildlife habitat. Comments urged BLM 
to take actions to restore these lands, not weaken the grazing 
regulations, stating that the impacts of overgrazing on western 
rangeland streams, rivers, and fisheries have been documented. A 
comment said that BLM should allow the land to rest to heal from 
overgrazing.
    These comments are largely directed at the grazing program itself, 
and are beyond the scope of this rule, which is focused on improving 
administration. The elimination of grazing from the public lands has 
not been considered here. This level of analysis was undertaken for the 
comprehensive changes made in the grazing regulations in 1995. Here, 
the changes are administrative in nature. Uses other than grazing can 
contribute to the problems discussed in the comments. Within its 
resource capabilities, BLM, in cooperation with users and the public, 
manages grazing and other uses in a manner that recognizes and 
addresses the potential for these impacts so that, ideally, they are 
avoided or mitigated. Under subpart 4180 of the grazing regulations, 
BLM must manage grazing, which includes rest from grazing where 
appropriate, in a manner that achieves, or makes progress towards 
achieving, standards for rangeland health. These standards have been 
developed on a regional basis and address watershed function, nutrient 
cycling and energy flow, water quality, habitat for endangered, 
threatened, proposed, candidate, or other special status species. The 
final rule will strengthen BLM's ability to implement grazing 
strategies that provide for maintenance or achievement of healthy 
rangelands.
    A comment asserted that stocking levels are too high, and forage 
production is only \1/5\ of its potential, resulting in conflict with 
rangeland health standards. Another comment stated that light stocking 
levels would provide the highest long-term financial return. A third 
comment stated that BLM should not allow utilization levels based on 
the take half/leave half principle.
    These comments appear to suggest that stocking and utilization 
levels should be determined through a rulemaking process. What the rule 
is doing, on the other hand, is to make mainly procedural changes to 
improve administration of the grazing program as a result of experience 
implementing the 1995 rule. Stocking levels are better addressed during 
the land use and activity planning processes where the wide variety of 
relevant factors, such as climate, competing forage use, and other 
multiple use needs, can be addressed. The rule provides that monitoring 
data must be used to support a determination that livestock grazing is 
a significant cause for not achieving one or more rangeland health 
standards. Typically, utilization measurements or estimates are among 
the kinds of monitoring studies BLM conducts to inform analysis about 
the effects of stocking rates on land conditions at the local level.
    A comment stated that BLM should not place western grazing rights 
above those in other areas of the country, and that the government 
provides competitive advantages to public land grazing permittees and 
lessees.
    The comment raises fee and subsidy issues, which were not part of 
this rulemaking. The grazing fee formula was established in the Public 
Rangelands Improvement Act (PRIA) of 1978 (43 U.S.C. 1901, 1905) 
through 1985. The applicability of the formula was extended by 
Executive Order 12548 on February 19, 1986 (51 FR 5985). The regulatory 
provision implementing PRIA and the Executive Order appears at 43 CFR 
4130.8-1. The formula is not affected by the costs of grazing in other 
parts of the country outside of the 11 western states of Montana, 
Idaho, Wyoming, Colorado, New Mexico, Arizona, Utah, Nevada, 
Washington, Oregon, and California. Fee and subsidy issues were 
examined in BLM's EIS for Rangeland Reform '94. This proposed

[[Page 39422]]

action addresses refinements of Rangeland Reform '94, including, among 
other things, inefficiencies in the current regulations.
    A comment stated that BLM ``subverted'' the NEPA process by not 
adopting language contained in a preliminary internal administrative 
review copy of the draft EIS (DEIS) obtained by the commenting 
organization and submitted as an attachment to its comment. The draft 
document contained descriptions of significant adverse effects on 
wildlife, biodiversity, and special status species. The comment stated 
further that not using this document prevented BLM from taking a ``hard 
look'' at environmental consequences of the proposed rule, and resulted 
in an unlawful post-hoc rationalization.
    BLM did not ``subvert'' the NEPA process by editing the 
administrative review copy of the DEIS. As is BLM's usual practice, 
staff scientists and analysts prepared preliminary drafts of portions 
of the DEIS, then circulated their preliminary drafts among their 
colleagues. We circulate such documents for internal review in an 
effort to produce a factually accurate, scientifically sound, and well-
reasoned DEIS. The administrative review copy represents a ``snapshot'' 
of an early stage of BLM's deliberative internal review process. The 
text identified in the comment was revised as a result of further 
internal review for the reasons explained below.
    Some of the revisions updated the draft document to reflect the 
actual contents of the proposed rule. For example, the administrative 
review copy stated that upland and riparian habitats would continue to 
decline because the proposed rule would worsen an ``already burdensome 
appeals process'' and decrease BLM's ``ability to control illegal 
activities on public lands.'' In fact, the rule did not propose to 
amend the ``appeals process,'' but remove provisions from the grazing 
regulations that were redundant to regulations of the Office of 
Hearings and Appeals in 43 CFR part 4. With respect to illegal 
activities on public lands, the rule proposed specific prohibited acts 
on grazing allotments that would constitute violations of the grazing 
regulations, with penalties including possible forfeiture of the 
grazing permit. However, the rule does not prevent BLM from enforcing 
other regulatory or statutory provisions on allotments or any other 
public lands.
    The administrative review copy also concluded that the proposed 
rule would ``greatly [diminish] the ability of the BLM to regulate 
grazing,'' to the detriment of wildlife, because it would defer to 
state water law. Deference to state water law is an element of the 
existing provision on water rights (43 CFR 4120.3-9), and was not new 
in the proposed rule. BLM retains regulatory authority over grazing use 
on public lands regardless of ownership of water rights on public 
lands. A state water right does not confer an attendant right to graze 
livestock on public lands. Moreover, BLM may hold water rights for 
other beneficial uses, such as for wildlife, wildlife habitats, and 
recreation, even if it is precluded from holding water rights for 
watering livestock, which is currently the case in some states.
    The administrative review copy was also further edited to cite 
legal requirements more precisely. In some cases, the conclusion based 
on the legal requirement was changed to reflect the agency's assessment 
of the effects of the rule. For example, the administrative review copy 
stated that ``the increasing and burdensome administrative procedural 
requirements for assessment and for acquisition of monitoring data `` 
abrogate our responsibility for management of water quality as codified 
in Section 313 of the Water Quality Act of 1987 (Pub. L. 100-4); and 
further, committed to by [sic] designation by most [sic] as a 
`Designated Management Agency.' Delaying modification of grazing 
prescriptions when an[d] where warranted and/or mitigation of damages 
created by failure to implement a Best Management Practices (BMP's) 
iterative process will continue to stress western watersheds.''
    Section 313 of the Water Quality Act of 1987 amended various civil 
penalty provisions of the Federal Water Pollution Control Act (FWPCA) 
(33 U.S.C. 1251 et seq.) that are not administered by BLM and are not 
relevant to federally-permitted grazing. BLM is, however, subject to 
requirements pertaining to nonpoint source pollution that may result 
from livestock grazing, and the appropriate citation is Section 313 of 
the FWPCA, 33 U.S.C. 1323, rather than Section 313 of the Water Quality 
Act of 1987.
    Section 313 of the FWPCA requires Federal agencies to ``comply with 
* * * all state * * * and local requirements * * * in the same manner 
and to the same extent as any nongovernmental entity.'' 33 U.S.C. 
1323(a)(1). BLM does not believe that delay in modifying grazing 
prescriptions or implementing BMPs would necessarily lead to violations 
of state and local water quality requirements, and that delay may be 
warranted in order to gather data that would lead to better-supported 
or more effective prescriptions and/or BMPs.
    The BLM has also revised the assessment of the effects of changes 
made to subparts 4110 and 4180, which were initially characterized as 
``delaying tactics [and] could result in a protracted 7-year period for 
full implementation and change and this would result in a long-term 
adverse impact upon wildlife and biological diversity, including 
threatened and endangered and special status species * * *. Present BLM 
funding and staffing levels do not provide adequate resources for even 
minimal monitoring and the additional monitoring requirement will 
further burden the grazing decision process.''
    BLM does not believe that long-term adverse impacts to wildlife and 
biological diversity would occur as a result of these changes, because 
both this rule and the existing regulations provide BLM discretion to 
begin changing active use, or to close a grazing allotment, when 
necessary for the protection of natural resources. BLM funding and 
staffing levels are issues that arise in annual budget development, and 
we plan to work to ensure that collecting data through rangeland 
monitoring remains a priority. While BLM agrees that the time frame for 
making decisions may increase due to the changes in subpart 4180, BLM 
anticipates that taking additional time to formulate, propose, and 
analyze an appropriate action will improve decision making, thus 
improving rangeland health in the long term.
    We expect these aspects of the rule to have slight environmental 
effects because reliance on monitoring data is not new to the grazing 
program. At present, changes in grazing use may be supported by 
``monitoring, field observations, ecological site inventory, or other 
data acceptable to the authorized officer.'' 43 CFR 4110.3. Decreases 
in grazing use must be supported by monitoring or field observation. 43 
CFR 4110.3-2. Allotment management plans and resource activity plans 
``shall'' provide for monitoring. 43 CFR 4120.2. Thus, monitoring is 
already an acceptable method of collecting data under the existing 
grazing regulations. To the extent that authorized officers already 
collect monitoring data to reach determinations under section 4180.2, 
the rule should have no environmental effect. To the extent that 
authorized officers currently rely on faster methods of data 
collection, the final rule could slow down the process of making 
determinations and thus potentially cause adverse environmental effects 
in

[[Page 39423]]

the short term. However, these effects would be mitigated to the extent 
that existing monitoring data may be sufficient to support 
determinations, and to the extent that better data result in more 
effective and more appropriate action.
    The administrative review copy raised concerns pertaining to the 
definition in the rule of ``interested public,'' to provisions that no 
longer require the participation of the interested public in routine 
decisions such as permit renewals, and to provisions requiring 
cooperation with Tribal, state, county, or local grazing boards. The 
administrative review copy stated that these proposals would ``limit 
the ability of environmental groups to participate in the appeals 
process in the interest of wildlife * * *. This should result in long-
term adverse impacts to wildlife and special status species.'' With 
respect to grazing boards, the administrative review copy stated that 
the rule would ``give greater emphasis to local entities that favor 
extraction of forage and water resources at the expense of wildlife and 
biological diversity [and] give local entities greater influence over 
decision making than national interests who are excluded from this 
venue.''
    The DEIS did not reflect these concerns because the rule does not 
prevent or limit the ability of an environmental group, or any other 
interested public entity, to ``participate in the appeals process.'' 
Under 43 CFR 4160.1, BLM would continue to provide copies of proposed 
and final grazing decisions to all members of the interested public. 
They would then have an opportunity to seek administrative remedies. 
With respect to grazing boards, BLM believes that cooperating with 
Tribal, state, or local-government established grazing boards in 
reviewing range improvements and allotment management plans on public 
lands would provide valuable input regarding these matters. Moreover, 
under section 4120.5-1, BLM would continue to cooperate with 
institutions, organizations (such as environmental groups), 
corporations, associations, and individuals to achieve the objectives 
of the grazing regulations. BLM notes that, often, national groups have 
local chapters and representatives that serve as a conduit for their 
views at the local level. BLM accepts input from all sources, 
regardless of affiliation. BLM believes that while some reduced input 
may result from changes in the rule, that this would not result in 
significant effects on wildlife because the interested public would be 
able to provide input into many grazing decisions and documents, such 
as range improvement plans, range development programs, Allotment 
Management Plans, Resource Management Plans (RMPs) and RMP amendments 
that govern these routine decisions.
    The amendments of the administrative review copy were made before 
the DEIS was finalized, and they preceded the issuance of a final rule. 
The administrative review copy was amended to reflect the input from 
other reviewers regarding the likely effects of the rule and correct 
some factual errors.

D. Purpose and Need for Rulemaking

    We received numerous comments regarding our reasons for this rule, 
including many form letters and form e-mails.
    Several comments, although they supported the purpose of the 
proposed rule, stated that, with regard to the proposed provisions on 
grazing preference and removal of the term ``permitted use,'' active 
use phase-in, and title to range improvements, the rulemaking record 
lacks concrete examples of problems with the current regulations that 
warrant the proposed changes. The comments stated that this may cause 
problems because BLM is effectively rescinding the 1995 grazing 
regulations as to these particular matters and restoring the pre-
existing status quo. The comments went on to say that an agency 
rescinding a rule must ``explain why the old regulation is no longer 
desirable,'' citing Action on Smoking and Health v. C.A.B., 699 F.2d 
1209, 1216 (D.C. Cir. 1983). The comments concluded that, in the 1995 
final rule, BLM rejected the concerns expressed in many of the comments 
on the 1994 proposed rule, and now needs to explain what has changed, 
including recognition that the concerns stated in those comments on the 
1994 proposed rule have proven to be valid.
    We believe the changes made in this final rule are consistent with 
the standard announced in Motor Vehicle Manufacturers Ass'n of the 
United States, Inc. v. State Farm Mutual Automobile Insurance Co., 463 
U.S. 29 (1983): ``An agency's view of what is in the public interest 
may change, either with or without a change in circumstances. But an 
agency changing its course must supply a reasoned analysis.'' Id. at 
57. We have supplied the requisite reasoned analysis for the changes in 
the Record of Decision and in the respective section-by-section 
discussions in this preamble.
    Some comments stated that the current rules are consistent with the 
TGA because they have been tested in court, and that BLM should comply 
with Supreme Court rulings.
    The changes being made in this final rule are based on years of 
experience implementing the 1995 regulations, and on comments received 
on the proposed rule and DEIS. In some instances, we found that 
provisions of those regulations were impairing our ability to protect 
and enhance rangeland health. For example, providing for sole United 
States ownership in range improvements led to a reduction in range 
improvement applications throughout the time that the regulations have 
been in effect. Also, requiring BLM to take action by the start of the 
next grazing year after determining that existing grazing management 
practices or levels of grazing use were significant factors in failing 
to achieve standards of rangeland health has been seen to be an 
impracticable decision because it sets a deadline that is impossible to 
meet in most instances. Further, it is counterproductive because BLM 
has had to divert resources from rangeland management and monitoring to 
deal with legal challenges that arise when we fail to meet the 
unreasonable deadlines. In one of those legal challenges, a Federal 
appellate court interpreted existing section 4180.2(c) ``to require the 
BLM not merely to begin the procedures set forth in 43 CFR Sec. Sec.  
(sic) 4110, 4120, 4130, and 4160, but rather to complete them and issue 
its final decision by the start of the next grazing year.'' Idaho 
Watersheds Project v. Hahn, 187 F.3rd 1035, 1037 (9th Cir. 1999). BLM 
had to divert resources from other locations to comply with the court's 
ruling. We will discuss these and other problems with the 1995 
regulations in more detail when we address comments on the relevant 
provisions of the proposed rule.
    The Supreme Court did not require BLM to retain its existing 
regulations. It found that the 1995 grazing regulations that it 
reviewed did not exceed the authority granted to the Secretary under 
the TGA. BLM does not dispute that the regulations being changed today 
were in compliance with the TGA and within the Secretary's statutory 
authority. Changes being made today also are in compliance with the TGA 
and are within the Secretary's statutory authority.
    Some comments on the proposed rule suggested that BLM consider 
making changes through policy instead of through regulation changes.
    BLM very often does make changes through policy rather than 
rulemaking. However, if regulations in place need to be modified to 
achieve improved management, we can only change those regulations 
through rulemaking.

[[Page 39424]]

    A comment stated that BLM should not enact excessive regulations 
because they make it uneconomic for traditional ranching families to 
pursue their business.
    Excessive regulation can increase costs to user groups. We believe 
the changes made in the final rule will make grazing on public land 
more efficient without negatively affecting the health of the public 
rangelands.
    Many of the comments on the proposed rule stated that the 
regulation changes seem to be driven by only one small faction: Grazing 
permittees and lessees. They went on to say that the regulations should 
balance the requirements of consultation, cooperation, and coordination 
(CCC), and no emphasis should be placed on a single user group. The 
comments stated that this will not result in increases in cooperation 
with interested publics as stated because the proposed regulations 
diminish the levels of CCC with other interested publics and emphasize 
CCC with a single commercial user of public resources. Other comments 
stated that improving efficiency would be detrimental to public 
participation.
    The rule provides a mechanism for persons and organizations to 
attain and maintain ``interested public'' status for purposes of 
participating in management decisions as to specific allotments. At the 
same time, the rule provides a way to remove from the list of 
interested publics those individuals, groups, or organizations that 
have been on the list indefinitely without ever commenting on or 
otherwise providing input in the decision process. These regulations 
will provide numerous opportunities for the interested public input 
into resource management allocation decisions.
    BLM believes that in-depth involvement of the public in day-to-day 
management decisions is neither warranted nor administratively 
efficient and can in fact delay BLM remedial response actions 
necessitated by resource conditions. Day-to-day management decisions 
implement land use planning decisions in which the public has already 
had full opportunity to participate. Also, such in-depth public 
involvement can delay routine management responses, such as minor 
adjustments in livestock numbers or use periods to respond to dynamic 
on-the-ground conditions. For example, a decision to delay turn-out, 
increasing number of livestock and shortening the season of use in 
response to delayed vegetative growth resulting from a cool, moist 
spring may not be possible if a large number of interested parties need 
to be consulted first. While this type of adjustment makes good 
management sense from a resource perspective, the time taken to meet 
the current administrative requirements may preclude being able to take 
this action. Cooperation with permittees and lessees, on the other 
hand, usually results in more expeditious steps to address resource 
conditions and can help avoid lengthy administrative appeals.
    Some comments supporting the purposes of the proposed rule, agreed 
that there is a need for improving working relationships with users. 
One comment pointed out that cooperation with ranchers would minimize 
incompatible uses of interspersed private lands, such as subdivisions, 
and another said that it would provide better care for the land.
    BLM recognizes that ranchers who are committed to the health of the 
land are valuable partners. These regulatory changes are designed, 
among other things, to ensure sufficient oversight of public land 
grazers, and to facilitate better cooperation between BLM and the 
ranching community, while protecting the land.
    Comments opposing the rule stated that the emphasis on certain 
considerations, such as the social, economic, and cultural effects of 
agency actions that change levels of grazing preference, would have 
adverse impacts on natural resources, leading to degradation of the 
public lands. Comments stated that improving working relationships with 
grazing permittees and lessees would tend to weaken the ability of BLM 
to manage rangelands in a timely fashion by adding considerable time 
before action can be taken. One comment stated that BLM should have 
working relationships with the public, not just ranchers. Another 
accused BLM of appeasing ranchers and increasing the level of 
environmental damage.
    BLM retains the discretion to determine how much time is warranted 
in coordinating with grazing permittees and lessees. Considering the 
social, economic, and cultural effects of actions that change grazing 
use levels contemporaneously with considering the environmental effects 
should not appreciably increase this time or the time consumed in 
implementing decisions. We have not materially changed current policy 
in this regard in this rule, and therefore anticipate few if any 
additional delays in the authorization or implementation of grazing 
management actions on public lands.
    BLM does have a working relationship with many publics and 
encourages public participation in the management of public lands. 
However, with respect to day-to-day management actions involving 
livestock, close coordination by BLM with those responsible for the 
``hands on'' management of the livestock, in other words, the 
permittees and lessees, is essential to ensure that livestock use 
impacts on resources do not prevent achieving other multiple use 
management objectives.
    Many comments stated that the proposed rule will slow down or 
diminish any progress made by the 1995 rule.
    The Rangeland Reform effort of 1994-95 made numerous significant 
changes directed at restoring rangeland health. The changes in this 
rule preserve the regulatory framework of Rangeland Reform and make its 
implementation more practicable. In this rule, some time frames for 
developing appropriate management decisions and, in some cases, 
implementing changes in the amount of forage authorized for grazing use 
have been lengthened. We expect that having more time to develop 
practical alternatives and make decisions will lead to better 
decisions, supported by reliable data gathered through monitoring, and 
result in achieving long-term management goals and rangeland health. 
These new regulatory changes do not change the resource protection 
values of Rangeland Reform, but they do provide additional time for 
developing appropriate actions to effect grazing changes.
    A comment stated that the final rule should reflect the legal 
requirements for cooperation with the public, other agencies, and 
users, in various laws, including FLPMA, the Fish and Wildlife 
Coordination Act, the Migratory Bird Treaty Act, the Public Rangelands 
Improvement Act (PRIA), the Sikes Act, and the TGA.
    We are complying with all relevant laws. However, attempting to 
list various requirements of multiple Federal laws in the grazing 
regulations would be unwieldy and would require amendment of the 
regulations to reflect future changes in these laws or the addition of 
new laws. Rather, BLM utilizes manuals, handbooks, and other guidance 
to ensure compliance with relevant laws.
    One comment stated that the proposed rule failed to consider the 
definition of ``principal or major uses'' in Section 103 of FLPMA, 
which ``includes, and is limited to, domestic livestock grazing, fish 
and wildlife development and utilization, mineral exploration and 
production, and timber production.''

[[Page 39425]]

    The rule addresses domestic livestock grazing, which is one of the 
principal uses of the public lands under FLPMA. Regulations on other 
principal uses of public lands managed by BLM are found elsewhere in 
Title 43 of the CFR.
    One comment stated that politicians should be barred from direct 
intervention in matters related to public lands grazing.
    Presumably, the comment is referring to congressional contacts or 
oversight associated with livestock grazing. BLM manages the public 
land, and takes into consideration the views of all interested parties 
when it is appropriate to do so. This may include the views of public 
officials, including Members of Congress.
    Many comments expressed the concern that the proposed rule would 
lead to impairment of the health of the rangelands. They phrased this 
concern in a variety of ways. Comments stated that the proposed rule 
would do little to promote riparian recovery or prevent decline of 
plants or animals. Others stated that the rule would cause additional 
resource damage to specific geographical areas, such as the Northern 
Rockies. Comments stated that granting greater discretion to permittees 
and lessees and to BLM managers may result in more resource impairment. 
One comment stated that the proposed changes would reduce cooperation 
in achieving rangeland health objectives. One comment urged that the 
rule should provide for rangeland management to avoid resource 
depletion and to conserve resources for the future. Comments disagreed 
with our view that the changes in the rule were largely administrative 
in nature with little direct effect on the environment. Comments urged 
that the rule should be amended to avoid the short-term adverse effects 
on the environment predicted in the Environmental Impact Statement. 
Comments stated that the objectives of the regulations should be 
revised to recognize the real purpose of the proposed rule: to keep 
ranching operations viable, with rangeland health as a secondary 
objective. Some comments urged that BLM consider that healthy lands 
improve local economies.
    BLM has not changed the regulatory text in response to these 
comments. Many provisions in the proposed rule, including increasing 
the requirements for monitoring, removing the 3-year limit on temporary 
nonuse, sharing title to range improvements, and others, are designed 
to protect and enhance the long-term health of the land. The 
anticipated environmental impacts of the changes are set forth in 
detail in Section 4.3 of the EIS and in the Addendum. We believe that 
the changes will improve working relationships with permittees and 
lessees, protect and improve the health of the public rangelands, and 
improve administrative efficiency.
    Many comments stated that the monitoring requirements in the 
proposed rule would cause increased workloads for BLM field managers 
and personnel.
    We acknowledge that the monitoring requirements in the rule will 
likely increase the workload of BLM field range managers and 
specialists somewhat, but we anticipate that the increases in 
monitoring will be accompanied by the benefits of improved management 
and saved time in the end, as we explain later in this preamble in our 
discussions of changes in sections 4110.3-3 and 4180.2. Further, the 
change in section 4180.2(c) in the final rule, imposing the monitoring 
requirement only if a standards assessment indicates that the allotment 
is failing to achieve standards or that grazing management practices do 
not conform to the guidelines, rather than requiring existing or new 
monitoring data to support every standards attainment determination, 
will minimize the workload increase. Any workload increase that arises 
will require BLM to reprioritize work or to find alternative means of 
collecting the monitoring data we need, or some combination of these, 
to the extent that additional monitoring is required. This may include 
cooperation with the grazing permittees and lessees themselves and with 
local citizen volunteers. BLM believes the changes in the regulations 
associated with monitoring will help achieve sustainable management 
objectives.
    One comment stated that BLM has indicated the necessity of making 
permit administration more efficient, but that these regulatory changes 
are motivated by a determination to exclude the interested public from 
the decision process. It went on to say that if BLM claims to have 
processed over 10,000 permits and issued over 13,000 permits, the 
agency should break down these numbers to show what percent of permits 
were renewed each year, how many were renewed under Appropriations Act 
``riders'', and how many were appealed. The comment said that this 
would help establish a quantitative assessment of the need for change.
    BLM does not believe a quantitative assessment of permit renewals 
is necessary to explain the need for efficiency changes to the overall 
administration of the grazing program. Efficient use of public 
resources, including Federal funding and management, are always proper 
goals of agency management. However, BLM has revised Section 3.4.1 in 
the EIS in an effort to address the concerns expressed in the comment. 
Section 3.4.1 in the EIS now provides additional information which 
further quantifies and explains the permit renewal process.
    The comment also states that our motive in making these regulatory 
changes was to exclude the interested public from the decision process. 
In fact, the final rule requires consultation with the interested 
public where such input is of the greatest value, such as when deciding 
vegetation management objectives in an allotment management plan, or 
preparing reports evaluating range conditions. BLM retains the 
discretion to determine and implement the most appropriate on-the-
ground management actions to achieve the objectives and/or respond to 
range conditions. BLM values productive consultation with the 
interested public. However, we must retain flexibility in order to take 
responsive, timely, and efficient management action. We believe that a 
more efficient consultation process will help facilitate efficient 
management of the rangelands while still providing for significant 
input from interested parties.
    Many comments stated that BLM should increase funding to improve 
working relations with permittees and lessees and promote conservation 
of public lands, and that even small funding increases could greatly 
contribute to the mutual goals of continued grazing and healthy 
rangelands, if they are applied in an innovative and collaborative 
manner to facilitate improved on-the-ground livestock management 
practices.
    BLM manages its Congressional appropriations in light of its varied 
and diverse statutory missions and responsibilities, and seeks 
opportunities to leverage its funding by engaging in partnerships 
wherever possible. Funding of BLM programs is not within the scope of 
this rulemaking. However, BLM intends that this rule will broaden 
opportunities for partnerships.
    One comment stated that BLM should establish policy and subsequent 
regulations with procedures for optimizing habitat quantity and quality 
for the variety of multiple uses and those species that are considered 
biologically dependent on their respective ecosystems.
    BLM manages for multiple uses under the guidance found in BLM land 
use plans. BLM land use planning regulations, and policy and procedure

[[Page 39426]]

are found in 43 CFR subparts 1601 and 1610, BLM Manual 1601--Land Use 
Planning, and BLM Handbook H-1601-1--Land Use Planning Handbook. BLM 
policy and procedures regarding management of wildlife and their 
habitats, sensitive species and the introduction, transplant and 
augmentation of fish, wildlife, and plants are found in BLM Manuals 
6500--Wildlife and Fisheries Management, 6525--Sikes Act Wildlife 
Programs, 6840--Special Status Species Management and 1745--
Introduction, Transplant, Augmentation, and Reestablishment of Fish, 
Wildlife and Plants. Promulgating regulations concerning these subjects 
is outside the scope of this rule. Species-specific provisions are not 
appropriate for national regulations, and should be contained in local 
land use plans issued in accordance with these manual provisions and 
the planning regulations.

E. Environmental Effects of the Rule

    Large numbers of comments addressed environmental effects of the 
proposed rule, mostly in opposition to the rule. Many of these comments 
also addressed the DEIS; these comments are discussed under VI. 
Procedural Matters later in the preamble.
    One comment, however, stated that BLM has overstated the adverse 
impacts of the proposed rule, and that we should say that the short 
term impacts of regulatory changes would be so minuscule as to be not 
worth mentioning. It went on to agree that, in the long term, changes 
under the proposed rule can be expected to improve range conditions.
    Many comments expressed concern that the combination of changes in 
the regulations would lead to multiple-year deferment of appropriate 
actions. The concern was that requiring monitoring data to make a 
determination, allowing up to 24 months for appropriate agreement or to 
develop and analyze an appropriate action, and generally allowing up to 
5 years to implement changes of more than 10 percent in level of use, 
could lead to as much as 9 years of delay in changes being made on 
allotments that most needed the adjustment in grazing management. 
Impacts on wildlife and habitat, threatened and endangered species, 
invasive weed infestations, recreational uses, and BLM workload and 
funding were all issues of concern.
    First of all, we anticipate the possibility of short term adverse 
effects occurring in those limited instances where vegetation recovery 
is delayed by the extended implementation deadline. Based on 
evaluations of land health from 1998 through 2003, this may be an issue 
on fewer than 16 percent of all allotments. In addition, BLM has the 
authority under section 4110.3-2 and section 4110.3-3 of the rule to 
decrease use or suspend use without a phase-in period if resource 
conditions demand. Only in those instances where longer term reductions 
are requested and rangeland health is not imperiled would the recovery 
of vegetation be somewhat delayed.
    Furthermore, the time frames provided for each of the actions 
listed are limits. BLM, from its experience to date, expects that in 
most cases, the maximum amount of time allowed for each of the 3 steps 
(monitoring, appropriate action development, and implementing forage 
allocation changes of more than 10 percent) will likely not be needed. 
At the end of Fiscal Year 2002, only about 16 percent of the 7,437 high 
priority allotments assessed for land health status were not achieving 
standards because of existing livestock grazing management. Assessments 
of the remaining 84 percent indicated that standards were met, or that 
there was a reason other than existing livestock grazing for not 
meeting standards. Most of the adjustments on these allotments that 
failed to meet standards due to existing livestock management have been 
made in the season of use, or movement and control of livestock, rather 
than in levels of active use. An unknown portion of these adjustments 
were changes of more than 10 percent in active use. We do know from 
conversations with State Office range program leaders, and from 
information gathered during range program evaluations and field office 
visits that reductions in active use in excess of 10 percent are rare. 
In fact, in 2003 the forage actually consumed, as documented by 
billings, was 6.7 million AUMs, while the amount authorized by term 
permits was 12.6 million AUMs. This reduced amount of actual grazing 
was largely due to drought, plus other reasons, such as fire. However, 
it reflects the fact that grazers are already taking temporary nonuse 
or being suspended, either voluntarily or by agreement, due to the 
current range and weather conditions.
    As stated in section 4.3.7 of the EIS, there may be limited short 
term negative impacts if the full 24 months or more is needed, once we 
have sufficient data through assessment or monitoring or both, to 
develop an appropriate action and complete the required coordination 
and consultation. Based on determinations made since 1998, only about 
16 percent of allotments need adjustment in livestock management or 
levels of use to make progress toward achieving land health standards. 
The negative impacts of taking the full 24 months to develop an 
appropriate action can be expected to be limited to about 16 percent of 
allotments. However, the extra time taken to develop a meaningful 
action is expected to provide greater long term benefits to other 
resources. For example, merely reducing the level of use in a riparian 
area is not likely to improve the riparian area condition, because 
adjustments in season, frequency, and duration of use are much more 
effective management strategies for restoring riparian functionality. 
Taking the additional time to develop an appropriate action may 
actually decrease the amount of time taken to implement the decision, 
particularly if the decision is not appealed as a result of the 
additional time spent in consulting with permittees and formulating and 
analyzing options. Implementing decisions can be delayed by 18 to 36 
months if appealed and if a stay is granted.
    Under the preferred alternative, using existing or new monitoring 
data will not be necessary on every allotment in order to make a 
determination, but only on those allotments that fail to meet standards 
due to levels of grazing use or management practices. The number of 
allotments where all 3 action issues (monitoring, 24 months to develop 
remedial action, and 5-year phase in of adjustments) are needed is 
expected to be small. Monitoring is necessary only for those allotments 
as to which a BLM status assessment indicates that rangeland is failing 
to achieve standards or that existing grazing management practices do 
not conform with guidelines. Then BLM will use existing or new 
monitoring data to determine whether management practices or levels of 
grazing use are significant factors in failing to achieve standards and 
conform with guidelines. The extended phase-in period will apply only 
when conditions require forage allocation changes of 10 percent or 
greater. Furthermore, the final rule provides for exceptions to the 
phase-in period in section 4110.3-3(a). Finally, the final rule 
provides the authorized officer authority to close an allotment or 
portions thereof immediately if continued grazing use poses an imminent 
likelihood of significant resource damage. As a result, BLM retains the 
discretion to address resource problems on a timely basis.
    One comment that opposed the rule stated that BLM should not adopt 
grazing regulations that will hurt the land in the short term while 
betting that long term studies will lead to better land

[[Page 39427]]

conditions at some indefinite time in the future.
    BLM believes that adoption of the proposed rule will lead to 
improved land conditions in the long-term as indicated in the analysis 
in section 4.5 of the Addendum to the EIS. That analysis explains that 
some adverse impacts are unavoidable, but in the long-term more 
comprehensive and sustainable decisions would be developed by relying 
on data and information collected through monitoring.
    One comment stated that BLM should acknowledge that western 
rangelands are in decline due to improper grazing strategies, and lack 
of appropriate measures or changes to deal with drought, fire, exotic 
weeds, and excessive horse populations.
    In the Rangeland Reform rule we recognized a need to prioritize our 
improvement of rangeland health. As of the end of 2002, we had 
completed evaluations on 7,437 higher priority allotments. We 
determined approximately 16 percent of those allotments not to be 
meeting land health standards because of current livestock grazing 
management. We conclude from this that generally most public rangelands 
are not in decline, or at least not to levels that we deem to have 
failed to achieve the standards and conform with the guidelines. To the 
extent that more than 16 percent of allotments may have so failed, we 
have found that grazing is not a significant cause. We have begun 
actions to address the problems we identified. Whenever a grazing 
decision is appealed, changes in grazing management may be delayed. 
Responding to appeals, preparing for hearings, and responding to 
requests for data associated with the appeals also requires dedication 
of personnel and funds that would otherwise be used to implement 
effective changes to achieve improvement in condition of resources on 
the very allotments that need to have changes made. The changes made in 
this rule will improve our ability to implement effective corrective 
measures--taking time to gather more data, if necessary, and engage 
knowledgeable and affected parties will improve the likelihood of an 
effective solution, and participation by the affected operator in 
determining the solution will increase his likelihood of complying with 
the corrective measures, and make BLM decisions less susceptible to 
appeal. This rule also improves BLM's ability to focus fiscal resources 
on those areas not meeting standards because of current livestock 
management, and to develop appropriate actions that will result in more 
collaboration and cooperation with permittees and lessees in addressing 
problems. We believe that we have adequate measures in place in the 
grazing regulations to deal with emergency situations such as drought 
and fires, or where continued grazing use poses an imminent likelihood 
of significant resource damage (section 4110.3.3(b)). The long term 
goal of this final rule, as was the case in 1995, is to reverse 
declines in western rangeland health, in those areas where there are 
declines, through improved consultation and cooperation with ranchers, 
and interested state and local authorities, as well as the interested 
public, in devising means to restore degraded areas and maintain 
currently healthy areas.
    The number of appeals has increased from 48 in 1998 to 139 in 2002, 
diverting resources from making on the ground improvements in rangeland 
health. By developing cooperative instead of adversarial roles, the 
fiscal resources being spent on appeals could be made available for 
making appropriate management changes and on the ground improvements.
    Comments stated that BLM should not adopt the new regulations 
because they will weaken wildlife protections. One comment stated that 
BLM's analysis shows that the regulatory changes would not mitigate 
declines in populations of mule deer, sage-grouse (Centrocercus 
urophasianus), and many other species, except when ranchers agree not 
to graze for 3 years. Another comment asked BLM to show by allotment 
the current status and population trends of greater sage-grouse and 
analyze the cumulative effects of the regulatory changes. One comment 
asked BLM to discuss the agency's capacity, in terms of budget and 
personnel, to assess and monitor the status of sage-grouse, and how its 
capacity would be affected by the regulatory changes. Another comment 
along the same lines asked that we consider the potential impacts of 
implementing the proposed rule on our ability to implement the National 
Sage-Grouse Habitat Conservation Strategy. Other comments urged BLM to 
add specific sage-grouse conservation measures to the regulations. A 
comment stated that BLM should consider the effects of the rule on non-
game bird species that are likely candidates for listing as threatened 
or endangered species. Another said that BLM should consider values of 
wildlife displaced by livestock on public lands in order to address the 
loss of wildlife associated recreation which has occurred under current 
management. One comment disagreed with the DEIS's statement that the 
proposed rule would have little or no effect on wildlife, stating that 
the proposed rule would fundamentally change the way BLM manages 
rangelands and have ``profound'' impacts on wildlife. One stated that 
the changes in the proposed rule may in some circumstances constrain 
biologists and range conservationists from recommending and 
implementing management changes in response to conditions that 
compromise the long-term health and sustainability of rangeland 
resources. The comment stated that these aspects of the rule would have 
the potential to be detrimental to fish and wildlife resources.
    The final rule does not alter BLM's mission of managing the public 
lands under the multiple use and sustained yield standard as provided 
in FLPMA. Grazing is just one of the many multiple uses for the public 
lands. The final rule will not prevent specialists from recommending 
and implementing management changes in response to conditions that may 
compromise the long-term health and sustainability of rangeland 
resources. BLM has flexibility to effect changes in grazing management 
to address rangeland health, including:
     The use of permit/lease terms and conditions to achieve 
resource objectives (section 4130.3);
     Modification of terms and conditions when active use or 
related management practices are not meeting plan objectives or 
standards and guidelines (section 4130.3-3);
     Suspension of active use in whole or in part due to the 
reasons set forth in section 4130.3-3 based on monitoring, field 
observations, ecological site inventory or other acceptable methods 
(section 4110.3-2); and
     Issuance of immediate full force and effect decisions to 
close areas to grazing when the authorized officer concludes that soil, 
vegetation, or other resources require immediate protection because 
continued grazing use poses an imminent likelihood of significant 
resource damage.
    The comments appear to assume that the proposed changes make 
significant revisions in the existing regulations. This is not the 
case. The changes are largely administrative in nature, and are 
designed to ensure a more balanced approach to rangeland management, to 
improve working relationships with permittees and lessees, to protect 
rangeland health, and to improve efficiency and effectiveness, 
including bringing the regulations into compliance with court 
decisions. The proposed rule would not fundamentally change the

[[Page 39428]]

way BLM manages land and would not have a ``profound'' effect on 
wildlife. The proposed revisions do not alter BLM's responsibilities 
under existing statutes, including the Migratory Bird Treaty Act, the 
Endangered Species Act, the Sikes Act, and applicable Executive Orders. 
In addition, the standards and guidelines under section 4180.2 remain 
intact. As we have stated, BLM acknowledges that some of the changes in 
implementation may have short-term impacts on wildlife on a small 
portion of BLM allotments. Any short-term impacts should be outweighed 
by long-term rangeland health benefits. In short, we have not changed 
our view that most of the changes in the final rule will have little or 
no detrimental effect on wildlife.
    Land use plans and site-specific analyses are the proper vehicles 
for considering the site-specific effects of grazing on wildlife. 
General impacts on wildlife are addressed in the EIS. Allowing 
adjustments in active use in excess of 10 percent to be implemented 
over a 5-year period could have short term adverse effects on plants 
and wildlife. Specific impacts would be determined on a case by case 
basis in site-specific NEPA analyses and would identify possible 
mitigation measures. Changes in active grazing use in excess of 10 
percent are infrequent. Also, the provision for phased in changes in 
use would not apply if it conflicted with an applicable law, e.g., if 
immediate implementation was a condition of a biological opinion under 
the ESA. The 5-year phase-in provision for reductions in stocking rates 
that exceed 10 percent of current stocking may affect Special Status 
Species not listed as threatened or endangered under the ESA. Any 
adverse effects on such species, however, should be limited to very few 
grazing allotments. BLM range assessments through fiscal year 2002 
indicate that existing livestock grazing was a significant factor in 
not meeting land health standards on about 16 percent of the allotments 
that had been assessed and evaluated. Of that 16 percent, a lesser 
number of allotments required stocking rate reductions exceeding 10 
percent. Many grazing system changes involved management of livestock 
rather than stocking rates, such as by limiting livestock access to 
certain portions of the allotments. Furthermore, under section 4110.3-
3(b), if BLM determines that resources require immediate protection or 
continued grazing use poses an imminent likelihood of significant 
resource damage, we can immediately close allotments or portions of 
allotments or modify grazing use to protect the resources in question.
    Providing BLM up to 24 months to propose and analyze appropriate 
action to address failure to meet rangeland health standards may 
adversely affect wildlife in the short term, possibly including Special 
Status Species not listed as threatened or endangered, but will benefit 
wildlife in the long term. Based on the evaluations completed by the 
end of FY2002, this provision would affect less than 16 percent of 
allotments. The provision that allows BLM to extend the timeframe 
beyond the 24 months would only be invoked if failure to comply with 
legal requirements was outside of BLM's control, i.e., the 
responsibility of another agency. The most likely occurrence of that 
nature would be if there was a delay due to the requirements of the ESA 
not being fully met. Concerns and issues regarding specific species 
such as sage-grouse and any specific threatened, endangered, or other 
special status species are fully addressed in land use or activity 
planning or permit or lease issuance or renewal environmental analyses. 
Specific detailed analysis for individual species is beyond the scope 
of this rule. In developing these regulations, BLM ensured that it had 
the mechanisms in place to take appropriate action to protect, as 
necessary, wildlife resources. The EIS and Addendum discuss the sage-
grouse conservation strategy at the end of Chapter 1, and address the 
impacts of this rule on the sage-grouse strategy in the cumulative 
impacts analysis in Chapter 4. Effects on wildlife in general are 
discussed are analyzed in Sections 4.3.7 through 4.3.9 of the EIS and 
Addendum.
    Finally, these changes are based on our experience implementing the 
regulations adopted in 1995. The changes here do not significantly 
alter those provisions adopted in 1995 that were examined in the 
accompanying EIS for that rule. As discussed in that EIS, the changes 
adopted at that time were expected to improve rangeland health, 
including habitat for sage-grouse. The timing and phase-in provisions 
adopted here are not expected to have significant effects on the 
improvements in rangeland health derived from the 1995 regulatory 
changes. BLM's National Sage-Grouse Habitat Conservation Strategy 
(2004) reflects the combined Federal and state response to the sage-
grouse situation, and outlines how BLM intends to achieve its goal of 
managing public lands to maintain, enhance, and restore sage-grouse 
habitats while providing for sustainable uses and development of public 
lands. The commitments made in the strategy are unaffected by the final 
grazing rule.
    One comment stated that procedures followed by BLM in the 
management of public rangelands contribute to petitions for Federal 
listings under the ESA, and ultimately to more restricted and costly 
management of Federal lands. The result of this management is rangeland 
with reduced capacity to support native big game and upland game 
species, which has an adverse effect on western cultural, social, and 
economic values.
    This rule focuses primarily on improving the efficiency of 
administrating livestock grazing on public lands. During each step of 
the land use planning process, BLM considers and analyzes the potential 
effects on wildlife. This consideration begins at the broad land use 
planning phase, and continues through allotment management planning, 
activity planning, and during development of terms and conditions of a 
grazing permit or lease. We recognize that recreation and tourism, 
including the viewing or hunting of animals, have increased in their 
relative contribution to many local and regional economies. The rule 
adopted today does not alter the way BLM considers potential effects on 
wildlife. Therefore, this rule is not expected to have an observable 
direct impact on the ability of the public to enjoy wildlife, and will 
not adversely affect the economic values associated with wildlife. 
Specific impacts on local or visiting wildlife enthusiasts would be 
more appropriately addressed in any subsequent land use plan or 
allotment management plan analysis. Finally, as stated above, these 
changes are based on our experience implementing the regulations 
adopted in 1995. The changes here do not significantly alter those 
provisions adopted in 1995 that were examined in the accompanying EIS 
for that rule. The provisions adopted here are not expected to have 
significant effects on the improvements in rangeland health derived 
from the 1995 regulatory changes.
    Several comments raised a number of other environmental factors 
that BLM should discuss, and stated that grazing has adverse effects on 
them: air quality, wild horses and burros, the prevalence of invasive 
weed species. Comments stated that the proposed rule would encourage 
the spread of invasive species, threatening shrub-steppe habitat, and 
damaging riparian and wet areas.
    These issues are discussed in detail in the EIS in sections 4.3.6, 
4.3.9, and 4.3.2, respectively. To the extent that the fundamentals of 
rangeland health

[[Page 39429]]

and the standards and guidelines for grazing administration address 
these issues in subpart 4180, the final rule makes no substantive 
changes in the fundamentals or standards themselves. Addressing more 
specific impacts on wild horses and burros is outside the scope of the 
rule. Specific impacts on wild horses and burros are more appropriately 
addressed in subsequent land use plans, landscape-level analyses, or 
undertaking-specific analyses.
    Comments also asked BLM to impose various levels of restriction on 
grazing in the rule, including eliminating public land grazing 
altogether on the grounds that domestic livestock are exotic to the 
western range. Some urged us not to increase grazing in arid lands. 
Another comment suggested that BLM should require permittees and 
lessees to fence all riparian areas to eliminate livestock as a cause 
of degraded riparian areas. Others advocated eliminating grazing in 
riparian areas.
    The final rule does not directly result in a change in levels of 
active use on arid lands or anywhere else. The rule continues to allow 
BLM to manage the public rangelands to address adverse impacts. For 
example, the rule retains BLM's authority to close allotments or 
portions of allotments to grazing by any kind of livestock or to modify 
authorized grazing use when we determine and document that continued 
grazing use poses an imminent likelihood of significant resource 
damage. Thus, if a riparian area is threatened with significant damage, 
we can have it fenced to exclude livestock. The rule also retains the 
fundamentals and standards and guidelines provisions of the rule to 
address rangeland health.
    Although fencing of riparian areas to improve grazing management is 
appropriate under certain circumstances, a requirement to fence all 
riparian areas would be impractical due to potential conflicts the 
fences might pose with other multiple uses such as recreation and 
wildlife habitat, and because of the expense of construction and 
ongoing maintenance. Therefore, we have not included such a requirement 
in the final rule.

F. Alternatives Considered

    Three general objectives for the changes to the regulations were 
identified in the Draft EIS (Section 1.2.2): (1) Improving working 
relationships with permittees and lessees; (2) protecting the health of 
the rangelands; and (3) increasing administrative efficiency and 
effectiveness of the process of managing livestock grazing on the 
public lands, including a means for resolving legal issues. The 
preceding section of this Preamble under Purpose and Need shows which 
objective primarily impels each change in the regulations.
    The regulatory changes in this final rule are relatively narrow in 
scope, both individually and cumulatively. Most changes respond to a 
specific concern that arose through experience implementing the 1995 
regulations. The changes clarify or improve specific elements of the 
1995 regulations. The changes were combined in a single rulemaking, 
including public participation and the NEPA process, because it was the 
most efficient way to amend those portions of the regulations. The 
changes in the regulations and alternatives to them do not fit into 
themes commonly used for the range of alternatives in an EIS concerning 
public land management, e.g., various levels of resource protection or 
resource use. Therefore, those categories were not used to frame the 
alternatives in the EIS.
    The sections of the 1995 regulations for each of the changes to the 
regulations are discussed in Section 2.1 of the Draft and Final EIS (No 
Action). The changes are discussed in Section 2.2 (Proposed Action). 
Table 2.5 compares the three alternatives evaluated in detail. Some 
regulatory changes are primarily editorial. Some changes are more 
controversial than others.
    Additional alternatives, in the form of different combinations of 
changes, were not developed for the EIS because each of the regulation 
changes is relatively independent of the others. Thus, there are many 
combinations of the 18 elements that could be changed or not changed 
and combined into an alternative. Such alternatives would not provide a 
clear basis of choice because the differences between them would be 
small. The broad comments regarding alternatives fall into several 
subject areas, which are addressed below.
    Some comments recommended major changes to the grazing program. 
Some comments asked BLM not to permit grazing on arid lands. Others 
advocated eliminating grazing in riparian areas. Other comments 
recommended use of long-term rest to help achieve standards. One 
comment recommended reducing stocking rates by 25 percent on allotments 
not meeting standards of rangeland health. Some comments recommended 
that the alternatives considered address the relationship between 
livestock grazing and other uses of the public lands. Some comments 
recommended that BLM develop alternatives to address a number of 
specific aspects of grazing management, such as: (1) Determining the 
capacity of the land to support wildlife, watershed function, and 
livestock; (2) determining livestock stocking rates; and (3) requiring 
allotments to demonstrate statistically significant improvement.
    In light of the broad sweep of the changes in the regulations in 
1995 and the accompanying analysis in the EIS at that time, and based 
on the years of experience in implementing those regulatory changes, we 
have determined that meeting our purposes and needs-- the health of the 
public rangelands, improved working relationships with permittees and 
lessees, and improved administrative efficiency--does not require major 
changes in the grazing program.
    The matters identified in these comments generally are best 
considered in land use planning or otherwise on a site-specific basis, 
not in a rule related to overall regulatory provisions. The 
relationship between livestock grazing and other uses of the public 
lands, and the capacity of the land to support wildlife, watershed 
function, and livestock, are questions of multiple use management, 
i.e., how public lands and their various resources ``are utilized in 
the combination that will best meet the present and future needs of the 
American people.'' 43 U.S.C. 1702(c) (definition of ``multiple use''). 
Pursuant to Section 202 of FLPMA (43 U.S.C. 1712), BLM prepares 
resource management plans (RMPs) to consider and balance the multiple 
uses that may be appropriate for tracts of public lands. Decisions 
determining or adjusting livestock stocking rates, or determining how 
to measure an allotment's improvement in rangeland health, ordinarily 
require site-specific information that can most efficiently be obtained 
by developing an allotment management plan (AMP) or a grazing decision.
    Some comments suggested that the EIS should have included an 
alternative more directed at conservation interests and the 
recommendations of environmental advocates, such as one that includes 
sage-grouse conservation measures. They believed that the regulation 
changes are biased toward the interests of the livestock industry and 
that the livestock industry would benefit at the expense of other users 
and the environment. One comment urged BLM to add specific sage-grouse 
consideration measures to the alternatives considered.
    BLM does not believe that these changes will benefit the livestock 
industry at the expense of other users and the environment. The rules

[[Page 39430]]

continue to promote consultation and coordination with other users, 
with other agencies and governments, and with tribes (4120.5). The 
long-term objective of requiring livestock grazing operations to meet 
standards for rangeland health has not been changed from the 1995 
regulations. As discussed in the Draft and Final EIS for Rangeland 
Reform '94, the overall changes adopted in that rulemaking were 
anticipated to have a number of positive environmental impacts, 
including positive impacts for sage-grouse. The rule now under 
consideration is designed to make refinements in the existing 
regulations and is not a significant departure from the regulations as 
revised in 1995. We believe that standards for rangeland health can be 
achieved without the major changes that may have been included under a 
substantially different ``conservation alternative'' suggested by some 
of the comments. Such an alternative was considered in the EIS for 
Rangeland Reform '94 and the anticipated effects on many livestock 
operators who are dependent on public rangelands for their livelihood 
were displayed in that document. The changes to the regulations adopted 
here were never intended to be either a comprehensive restructuring of 
the grazing program or a replacement of the 1995 grazing regulations. 
We do not believe that a broad ``conservation alternative'' which makes 
major changes to the livestock grazing program falls within a 
reasonable range of alternatives that meet the purpose and need of the 
action under consideration in the current EIS. Measures to protect 
sage-grouse and their habitat are appropriately considered in the 
Bureau's sage-grouse conservation strategy, and at the land use plan 
and/or permit issuance levels. We addressed the sage-grouse 
conservation strategy generally in Chapter 1 and Chapter 4 of the EIS.
    Some comments suggested that the alternatives analyzed in detail in 
the EIS do not provide a clear basis for choice. Some comments focused 
on a concern that the alternatives in the EIS do not represent a 
reasonable range of alternatives because they are too similar. Some 
comments stated that BLM should prepare an EIS that thoroughly analyzes 
the cumulative impacts of a range of alternative actions that will 
truly enable the agency to manage grazing lands under its jurisdiction 
responsibly. Some comments suggested an alternative that would provide 
for the development of baseline data on the grazing capacity of public 
lands. Some comments said that BLM cannot so narrowly define the scope 
of a project that it forecloses a reasonable consideration of 
alternatives. (Colorado Environmental Coalition v. Dombeck, (185 F.3d 
1162, 1174 (10th Cir. 1999)). Many comments recommended that BLM should 
examine alternatives that would make major changes in the grazing 
program or in the relationship between livestock grazing and other uses 
of the public lands.
    The broad-ranging analysis suggested by these comments was 
addressed in Rangeland Reform in 1994 and the accompanying EIS for the 
1995 regulatory changes. As explained in the EIS for this rulemaking 
under ``The Purpose of and Need for the Proposed Action,'' some of 
these revisions to the grazing regulations were developed as a means of 
achieving BLM's rangeland management objectives, including meeting the 
standards for rangeland health. It is not BLM's intent to revise major 
aspects of multiple use management or the livestock grazing program in 
this rule. BLM's intent is to bring efficiencies to the existing 
livestock grazing program, thus improving rangeland health on all 
allotments. The regulatory changes are narrow in scope, and include no 
changes in grazing fees, the fundamentals of rangeland health, or the 
standards and guidelines for grazing administration. They leave the 
majority of the 1995 regulatory changes in place. The changes are 
driven by specific issues and concerns that BLM has recognized, either 
based on our own experience or from input by stakeholders. Additional, 
markedly different, alternatives would not meet the purpose of and need 
for the action. While there may be conflicts among resource uses on 
specific sites that may point to a need to change the way in which 
livestock grazing occurs on an allotment, such conflicts are more 
appropriately resolved on an allotment-specific basis, rather than in 
the grazing regulations. We believe the three alternatives analyzed in 
detail in the EIS provide a reasonable range of alternatives that best 
provides a meaningful comparison for achieving the purpose and need 
described in the EIS.
    Some comments expressed concern over the relative lack of 
quantification of impacts in the EIS. They contended that this limits 
BLM's ability to compare alternatives.
    At the rulemaking tier of decision, such as in the case of 
developing this rule, meaningful quantification is generally not 
appropriate. Quantification is more appropriate at site-specific levels 
of decision, where on-the-ground issues are analyzed and resolved. To 
provide perspective on how the regulation changes may affect all 
allotments, the EIS provides relevant information (see Sections 4.3 and 
5.4.5) on the number of allotments where assessments have been 
completed, and the percentage of those that meet standards for 
rangeland health. Of those that do not meet the standards, we also 
provide the percentage of allotments where standards are not met 
because of livestock grazing on the allotment, and where active use may 
need to be changed by more than 10 percent. BLM will make grazing 
decisions to change management practices or levels of grazing on all 
allotments that do not meet standards, if we find that failure to 
achieve the standards is due in significant part to existing grazing 
management practices or levels of grazing use. The time frames amended 
under this final rule may also affect those allotments. The numbers of 
allotments where assessments have been completed, and the percentage of 
those that meet standards and guidelines for rangeland health, provide 
a perspective on the proportion of allotments where this final rule, 
e.g., in section 4110.3, may apply. Because this final rule does not 
make any of the site-specific decisions on where livestock grazing 
occurs and how, BLM's ability to present and analyze quantifiable 
estimates in the EIS is limited.
    Some comments recommended the No Action alternative, or at least 
the No Action alternative with regard to one or more of the changes. 
The No Action alternative considers that each of the changes would not 
occur. Some comments stated they preferred the No Action alternative 
because they believed that the proposed changes were designed to 
undermine the amendments made in the regulations in 1995. Some comments 
believed the regulatory changes could open the door to potentially 
adverse environmental consequences.
    The changes in the regulations were designed to accomplish one or 
more of the three objectives stated at the beginning of this section of 
the preamble and in Section 1.2.2 of the EIS, Purpose and Need by 
Topic. As in 1995, one of the overall objectives of this final rule is 
to amend the regulations to assist BLM in managing the grazing program 
in a way that makes progress toward achieving the standards for 
rangeland health on all allotments. As experience has shown, some 
provisions in the 1995 rule have impaired BLM's flexibility to meet 
this goal. These have included the 1995

[[Page 39431]]

provisions regarding the relatively short timeframe (before the start 
of the next grazing year) within which BLM must develop and implement 
an appropriate remedial action after BLM determines that current 
livestock grazing practices significantly contribute to the non-
achievement of one or more standards or do not conform with guidelines, 
the requirement that the United States must hold 100 percent of the 
title to permanent structural range improvements constructed under a 
Cooperative Range Improvement Agreement, the requirement the United 
States must hold, to the extent authorized by state law, the right to 
use water on public land for the purpose of livestock watering on 
public land and the requirement that authorized nonuse of a grazing 
permit is limited to no longer than 3 consecutive years. The latter 
arose from the Federal Court invalidation of the provision for 
conservation use permits, which created a need for more flexibility in 
authorizing temporary nonuse to promote rangeland recovery.
    The most useful comparison for the changes in the regulations is to 
compare the changes (Proposed Action) to the 1995 regulations (No 
Action). Most of the regulation changes do not lend themselves to being 
implemented in stages or degrees of implementation in a way that would 
materially affect environmental impacts or rangeland health. Those that 
do are addressed in the section-by-section analysis of comments.
    Many comments expressed concern that alternatives should have been 
considered for several of the changes in specific sections of the 
regulations. These specific provisions include the 24-month period 
after a determination on an allotment that livestock grazing is a 
significant factor failing to achieve the standards for rangeland 
health under section 4180.2(c), and the 5-year period for phasing in 
reductions in active use of more than 10 percent, under section 4110.3-
3(a).
    We examined what we believe to be an appropriate range of 
alternatives in the draft EIS, and have not added additional ones in 
the final EIS. When considering time limitations, an infinite array of 
options is theoretically possible. The alternatives considered here 
were reasonable, given the nature of the rule, and sufficiently 
distinct to allow for meaningful comparisons in the analysis.
    Currently, section 4180.2(c) requires that BLM take appropriate 
action as soon as practicable but no later than the start of the next 
grazing year, after we determine that grazing is a significant factor 
in the failure to achieve a rangeland health standard or conform with a 
guideline. Similarly, section 4180.1 requires appropriate action no 
later than the start of the next grazing year, after BLM determines 
that grazing management needs to be modified to ensure that the 
conditions described by the fundamentals of rangeland health exist. 
While BLM prefers to take appropriate action as quickly as possible, 
recent experience has demonstrated that complex circumstances can 
sometimes require extended periods to form effective long-term 
solutions. The lack of standards attainment in rangelands, and the 
concomitant inability to achieve and provide the physical and 
biological conditions described by the fundamentals of rangeland 
health, often is a result of gradual deterioration over many years due 
to the interaction of many factors, including inappropriate livestock 
grazing. The process to develop action plans to determine and implement 
appropriate corrective appropriate action can be complex. Factors 
complicating the formulation of action plans include the legal 
requirements of NEPA, the National Historic Preservation Act (NHPA), 
and ESA; water rights adjudications; and the presence of multiple 
permittees on an allotment. We determined the proposed action timeframe 
of 24 months to be the shortest reasonable timeframe that would 
accommodate the vast majority of corrective actions. The final rule 
added language to recognize that, in some instances, even more time may 
be required due to delays outside the control of BLM. We initially 
considered other deadlines, such as 12 or 18 months, but we viewed them 
as inadequate to deal with the more complicated situations. We 
considered removing all timeframe guidance, but determined that a 
reasonable deadline would be useful to help ensure that BLM actions 
were not inadvertently delayed. We have removed the action timeframe 
requirement in section 4180.1 for the reasons stated in section V of 
this rulemaking and in the Addendum to the EIS.
    BLM examined two alternatives for active use changes greater than 
10 percent in the EIS, in addition to the current regulations. Scoping 
indicated that permittees and lessees supported a 5-year option to 
address the financial shocks that can come in the rare instances when 
large decreases are made in active use. Scoping did not indicate strong 
support for longer or shorter timeframes. BLM addressed the impacts 
associated with mandatory or discretionary phase-in systems. This was a 
reasonable range of alternatives for this issue.
    Comments that address specific sections of the regulations and 
BLM's responses are addressed under the section-by-section analysis and 
response to comments.

G. Cross-cutting Issue-related Comments: Interested Public; Planning; 
Monitoring; and Enforcement

    Many comments addressed issues that pertain to the grazing program 
as a whole or to multiple sections of the regulations. We will respond 
to these comments in this section of the preamble on the role of the 
interested public, planning, monitoring, and enforcement.
1. Role of the Interested Public
    Numerous comments addressed the role of the interested public in 
grazing management. The proposed rule contained a definition change for 
the term and also modified the special involvement opportunities for 
those with interested public status. BLM has considered the comments 
but has decided not to make major changes in the rule. The final rule 
represents what BLM believes to be the proper balance between public 
participation and the need for flexibility in day-to-day grazing 
management operations.
    Under the previous regulations, one could obtain interested public 
status by (1) making a written request to be treated as the interested 
public, or (2) by submitting comments regarding grazing management on a 
specific allotment during formal public comment periods. Under the 
final rule, submitting a written request is sufficient to obtain 
interested public status initially, but this alone is no longer 
sufficient to maintain that status. Instead, subsequent comment or 
other participation in the decisionmaking process is necessary. This 
requirement is designed to avoid an inefficient use of Federal 
resources on clerical duties associated with persons and entities that 
have no longer expressed an active interest in the issue. Submitting 
comments during formal public comment periods, however, is still enough 
to qualify as a member of the interested public. In short, those who 
request the status must follow up with later actions, while those who 
initially demonstrate their interest via comments automatically qualify 
as the interested public for that decision process. Any member of the 
general public may initially achieve interested public status through 
these means, and former members of the interested public may

[[Page 39432]]

also regain that status through these same means at any time.
    Many were concerned that this definition change would unduly limit 
participation by the public. On the other hand, some comments on the 
proposed rule expressed the opinion that the term was still too broadly 
defined, and more requirements should be implemented before one 
qualifies as a member of the interested public. It is important to 
remember that the consultation opportunities available to the 
``interested public'' under the grazing regulations are not the full 
extent of public involvement in BLM grazing and rangeland management 
matters. In addition to pursuing the opportunities afforded under the 
grazing regulations, any member of the public may attend meetings of 
Resource Advisory Councils, and may provide input and comments 
regarding general grazing policy, meet with BLM managers and/or staff 
upon request, and participate in the land use planning and NEPA 
analysis and decision-making processes that concern rangelands. By 
modifying the definition, though, BLM hopes to avoid the sometimes 
inefficient use of Federal resources that has been associated with the 
interested public system, while still maintaining a valuable outlet for 
public participation. The comments relating to the definition of 
interested public are addressed in more detail in the Section-by-
Section Analysis portion of the preamble at section 4100.0-5.
    The proposed rule also included changes in the role of the 
interested public. Special consultation requirements were reduced in 
situations involving day-to-day management activities but retained for 
broader level planning decisions that guide daily activities. For 
example, BLM is required to consult, cooperate, and coordinate with the 
interested public when planning range improvement projects, developing 
allotment management plans, and apportioning additional forage. The 
interested public is also provided, to the extent practical, an 
opportunity to review and provide input during the preparation of 
reports that evaluate monitoring and other data that are used as a 
basis for making decisions to increase or decrease grazing use or to 
change terms and conditions of a permit or lease. Such reports include 
monitoring reports, evaluations of standards and guidelines, BAs or 
BEs, and any other formal evaluation reports that are used in the 
decisionmaking process. Additionally, there are multiple opportunities 
for public involvement when land use plans are amended or revised. 
Under the final rule, though, BLM will no longer formally consult with 
the interested public when undertaking routine management tasks such as 
renewing individual grazing permits, actually modifying a term in a 
grazing permit (as opposed to reviewing reports on monitoring and 
supporting data), or issuing temporary nonrenewable grazing permits.
    Many comments opposed these reductions in consultation with the 
interested public. Some recreationists and other non-grazing public 
land users were particularly opposed to having opportunities for the 
interested public limited in any way. These comments emphasized the 
view that multiple use public lands are best managed when multiple 
interests are involved with both planning level and implementation 
level decisions. Some stated that while the system may lead to some 
inefficiency, when viewed from a grazing economics perspective, 
democratic principles favored more public involvement on public lands.
    Numerous comments supported the changes and expressed the view that 
the interested public consultation system has led to decisionmaking 
gridlock. Many of these comments noted the important role public input 
plays at the planning level but argued that the involvement in routine 
decisions is counterproductive for all involved. Some expressed the 
view that only those with an economic interest should participate in 
allotment-level decisions.
    We have retained the proposed changes in the final rule. BLM is 
confident that consultation with the interested public on the larger 
scale planning decisions will continue to provide ample opportunity for 
public input. These broader scale decisions then guide the day-to-day 
management. The changes will, in turn, allow these daily decisions to 
be made in a more timely and efficient manner. The changes are 
addressed in more detail later in this section of the preamble at 
sections 4110.2-4 (allotment boundary adjustments), 4110.3-3 
(reductions of permitted use), 4130.2 (issuance and renewal of grazing 
permits and leases), 4130.3-3 (modifications to permits or leases), and 
4130.6-2 (nonrenewable permits and leases).
2. Land Use and Allotment Management Planning
    BLM received numerous comments addressing the types of uses that 
are generally allowed on public lands. They suggested eliminating some 
uses or dedicating lands to a single use. The comments included 
eliminating livestock grazing on areas with wild horses and burros, 
establishing rules to optimize wildlife habitat, phasing out livestock 
grazing completely, selling public lands, not allowing any commodity 
uses, and dedication of land for water conservation.
    BLM manages public lands in accordance with numerous laws passed by 
Congress, including FLPMA, which requires these lands to be managed for 
multiple use and sustained yield. FLPMA defines ``multiple use'' as 
``the management of the public lands and their various resource values 
so that they are utilized in the combination that will best meet the 
present and future needs of the American people; making the most 
judicious use of land for some or all of these resources or related 
services over acreages large enough to provide sufficient latitude for 
periodic adjustments in use to conform to changing needs and 
conditions; the use of some of the land for less than all of the 
resources; a combination of balanced and diverse resource uses that 
takes into account the long-term needs of future generations for 
renewable and nonrenewable resources, including, but not limited to, 
recreation, range, timber, minerals, watershed, wildlife and fish, and 
natural scenic, scientific and historical values; and harmonious and 
coordinated management of the various resources without permanent 
impairment of the productivity of the land and the quality of the 
environment with consideration being given to the relative values of 
the resources and not necessarily to the combination of uses that will 
give the greatest economic return or the greatest unit output.'' 43 
U.S.C. 1702(c).
    BLM cooperatively develops local land use plans in order to 
determine balanced, appropriate, and sustainable land uses, following 
processes defined by various laws, regulations, and policies. These 
grazing regulations govern management of grazing on lands that have 
been determined through land use planning to be appropriate for 
livestock grazing. BLM's land use planning processes are governed by 
regulations in 43 CFR part 1600, and are not addressed in this rule. 
The sale of BLM lands, while permitted by FLPMA, is outside the scope 
of this rule.
    Comments stated that BLM should determine the forage capacity of 
its land using scientific livestock utilization rates and re-set 
permitted use or preference to reflect that condition. The comments 
went on to say that the fact that AUMs are in suspension demonstrates 
that the range cannot support those levels of grazing.
    This issue is outside the scope of this rule. BLM makes the 
determinations referred to in the comment during the planning process. 
AUMs are in

[[Page 39433]]

suspension due to current conditions that may not be permanent, such 
as, for example, drought conditions. Forage availability may also 
change in the future as a result of range improvements or improved 
health of the rangelands.
    We received several comments that addressed our land use planning 
processes, suggesting that better control of motorized vehicle use and 
access would improve rangeland conditions. Others suggested that BLM 
should lease lands for recreation, wildlife, and water conservation 
rather than assign grazing as a sole use. Still others urged BLM not to 
recommend or provide interim protection for more Wilderness Study Areas 
or Wild and Scenic Rivers, stating that their management overtaxes 
BLM's capability.
    BLM develops local land use plans to address land use activities 
such as off-road vehicle and other recreational uses, wildlife, and 
water conservation uses. Local land use planning allocations are beyond 
the scope of this rule. BLM will not recommend or designate any 
additional Wilderness Study Areas under the Utah Wilderness Settlement 
and its application, by policy, to BLM lands outside of Utah. IM No. 
2003-274 and IM No. 2003-275. The regulations governing management of 
Wilderness Areas and Wild and Scenic Rivers are in 43 CFR part 6300 and 
43 CFR 8351.2, respectively. Those regulations are beyond the scope of 
this rule.
    A comment stated that Federal rangeland health standards demand 
that BLM's rule focus decisionmaking on management objectives stated in 
land use plans, activity plans, and grazing decisions.
    The rule provides that its objectives will be realized in a manner 
consistent with land use plans. The regulations also provide that 
active use is based on the amount of forage available for livestock 
grazing as established in the land use plan, activity plan, or decision 
of the authorized officer. The regulations allow BLM to make changes in 
the grazing preference as needed to conform to land use plans or 
activity plans, to apportion additional forage to qualified applicants 
for livestock grazing use consistent with multiple-use management 
objectives specified in the applicable land use plan. BLM may modify 
terms and conditions of permit and leases when the active use or 
related management practices do not meet management objectives 
specified in the land use plan, allotment management plan or other 
activity plan, or an applicable decision.
    A comment stated that BLM has not effectively addressed resolution 
of multiple use conflicts that lead to demands for livestock-free 
lands.
    FLPMA requires BLM to manage lands for multiple uses. We resolve 
conflicts among competing uses on individual tracts of public land 
through land use planning, with participation by the interested public 
and by or on behalf of the proponents of the competing uses.
    One comment stated that either BLM should establish regulations 
that provide for making land use planning-level determinations 
regarding whether public lands are ``chiefly valuable for grazing'' as 
described in the October 2002 Solicitor's Memorandum, or the Secretary 
should withdraw that memorandum and provide for grazing permit 
``retirement'' within its land use planning process or through its 
permit issuance or renewal processes.
    The comment alludes to an ``M-Opinion'' issued on October 4, 2002. 
M-Opinions (i.e., ``major'' opinions) usually are responses to requests 
by agencies of the Department of the Interior regarding the 
interpretation of statutes administered by the Department. M-Opinions 
are signed by the Solicitor or his designee, may receive the 
concurrence of the Secretary, and are binding on all agencies of the 
Department. BLM believes we have sufficient guidance to consider the 
issue of ``grazing retirement,'' and so does not need a regulatory 
provision to address this topic.
    Grazing retirement and the TGA's ``chiefly valuable'' standard have 
been discussed in two recent Solicitor's memoranda, as well as the 2002 
M-Opinion. In one memorandum, Solicitor Leshy concluded that Congress, 
at 43 U.S.C. 1752(c) and 1903(c), specifically provided for the 
possibility of retiring public lands from livestock grazing, but that 
BLM must make such a decision in a land use plan or an amendment to a 
land use plan. Memorandum to the Director of BLM from the Solicitor 
(January 19, 2001).
    While the later M-Opinion supersedes the 2001 Solicitor's 
memorandum, it agrees that land use planning is an appropriate process 
for considering retirement of grazing, and that whenever the Secretary 
retires public lands from grazing, she must determine that such lands 
are no longer ``chiefly valuable for grazing and raising forage 
crops,'' within the meaning of Section 1 of the TGA, 43 U.S.C. 315. In 
addition, the M-Opinion concludes that a decision to cease livestock 
grazing is not permanent. Memorandum to the Secretary from the 
Solicitor, M-37008 (October 4, 2002). The M-Opinion was later clarified 
in a memorandum stating that whenever the Secretary considers retiring 
grazing permits in a grazing district she must determine whether such 
lands remain chiefly valuable for grazing if any such retirement may 
ultimately result in the modification of the district's boundaries. 
Memorandum to the Assistant Secretary for Policy, Management and 
Budget, Assistant Secretary for Land and Minerals Management, and the 
Director of BLM from the Solicitor (May 13, 2003).
    One comment stated that BLM should provide for permit or lease 
retirement with compensation to the permittee.
    The suggestion that permittees and lessees be compensated for 
grazing retirement is not adopted. BLM lacks statutory authority to 
provide for such compensation.
    One comment stated that, if BLM considers itself obligated to 
preserve public land ranching in the West in the face of competing 
economic pressures for use of ranches and ranchland, then we should 
reconsider previous policy proposals that were dropped, such as 
conservation easements and acquisition of ranches, because these may be 
creative ways to sustain viable operations without inducing further 
damage to the land.
    Under FLPMA, BLM is obligated to manage the public lands on the 
basis of multiple use and sustained yield unless otherwise specified by 
law. FLPMA includes livestock grazing as one of the principal or major 
uses of the public lands, along with fish and wildlife development and 
utilization, mineral exploration and production, rights-of-way, outdoor 
recreation, and timber production. BLM never proposed acquisition of 
ranches as a policy proposal. BLM dropped consideration of exchanging 
public lands for conservation easements on private lands after comments 
received in the spring of 2003 indicated general public opposition to 
this policy proposal.
    One comment urged BLM to update our allotment management plans.
    BLM usually determines which allotments require allotment 
management plans (AMPs) in land use plans. The timing, development, and 
updating of AMPs is determined through BLM's budgeting and planning 
processes, not in the grazing regulations. Therefore, this issue is 
outside the scope of this rulemaking.
3. Monitoring
    Many comments addressed monitoring on public lands, and suggested 
ways that BLM could use monitoring to improve public land management. 
Comments stated that BLM should not authorize grazing on areas where it 
lacks adequate data to

[[Page 39434]]

determine that standards are met or to ensure that resource damage is 
avoided. They recommended that BLM set up exclosures as control sites 
representing various major ecological types of land in order to 
establish benchmarks for assessing grazing management. Discussions of 
other comments on monitoring directed at specific regulations appear 
elsewhere in this preamble under the appropriate section.
    BLM authorizes livestock grazing on areas that have been determined 
through the land use planning process to be available for grazing. BLM 
determines whether lands are available for livestock grazing through 
the land use planning process in compliance with FLPMA and 43 CFR part 
1600. The process involves public participation, assessment, 
decisionmaking, implementation, plan monitoring and evaluation, as well 
as adjustments through plan maintenance, amendment, and revision. This 
planning process adheres to the principles of multiple use and 
sustained yield and uses an interdisciplinary approach to integrate 
physical, biological, economic and other sciences. BLM is required to 
take appropriate action if we determine that existing grazing 
management practices or levels of grazing use are significant factors 
in failing to achieve the standards and conform to the guidelines for 
grazing administration. This final rule emphasizes the importance of 
using monitoring data by adding a requirement for its use when 
determining whether existing grazing management is a significant factor 
in failing to achieve the standards and conform with the guidelines 
under section 4180.2(c). In the final rule, we have clarified the 
proposed rule by providing for the use of monitoring data if a 
standards assessment indicates to the authorized officer that the 
rangeland is failing to achieve standards or that management practices 
do not conform to the guidelines. BLM endorses the use of exclosures to 
determine the compared effects of grazing and its absence on various 
ecological types of land, and discusses their use in several BLM and 
interagency rangeland monitoring technical references.
    Comments suggested that monitoring was so critical to determining 
whether multiple use objectives are being met on grazing allotments 
that it should be specifically required in all allotments, along with 
other methodologies, in the regulations.
    BLM agrees that monitoring is important in measuring progress 
toward meeting objectives in grazing allotments and elsewhere on public 
land. Allotment-level monitoring is generally a component of allotment 
management plans, and is sometimes addressed in land use plans. Current 
allotment management planning includes monitoring on the maximum 
possible number of priority areas, limited only by budget and 
workforce. We currently administer grazing on about 21,535 allotments 
(2005). BLM has established monitoring sites in nearly 11,500 
allotments, and currently collects monitoring data to some degree on 
about 3,500 of those allotments each year. These monitoring sites are 
used primarily to evaluate achievement of land use plan objectives, to 
ascertain changes in condition, and to determine trend (toward or away 
from a desired condition). Information is collected at some of the 
monitoring sites more often than at others, depending on priority and 
purpose. Specific methods of data collection are better addressed in 
handbooks and technical references, which are much more readily 
updated. However, it is not always necessary to monitor to find that 
rangeland is achieving standards and that management practices conform 
to the guidelines. Under the final rule, if a standards assessment 
indicates that the rangeland is failing to achieve the standards or 
that grazing management practices do not conform to the guidelines, we 
will use monitoring data to support our determination regarding the 
significant contributing factors for failing to achieve the standards 
or to conform to the guidelines.
    One comment stated that BLM should clearly show its long-term 
budget strategy that outlines the monitoring programs, funding, and 
personnel that will be added to the agency's capacity to carry out the 
implied monitoring. The comment asserted that BLM does not have 
sufficient funding, personnel, and management support for adequate 
monitoring of vegetation, Special Status Species, and Birds of 
Conservation Concern, let alone other resources.
    Funding is provided by annual congressional appropriation. We will 
prioritize allocation of our discretionary monitoring funding to 
address resource needs and provide a foundation for management 
adjustments. BLM agrees that generally, monitoring is a critical 
component providing data for evaluation and adjustments of terms and 
conditions of grazing authorizations, unless the need for the change in 
authorization terms and conditions is immediate and obvious, such as 
when conditions described at 43 CFR 4110.3-1(b) are encountered (e.g., 
wildfire burns available forage, necessitating temporary suspension of 
grazing use). We will continue to prioritize funding to meet the 
monitoring needs required by this rule. The change in the final rule 
that limits the monitoring requirement to those cases where a standards 
assessment indicates that the rangeland is failing to meet standards or 
that management practices do not conform to the guidelines does not 
result in a negative budgetary impact.
4. Enforcement
    Some comments suggested that BLM should enforce all of its current 
regulations or strengthen them to prevent environmental damage caused 
by livestock grazing or coal bed methane development. Another comment 
stated that BLM should allow permittees and lessees to ``manage'' 
recreation on public lands.
    BLM agrees that it should enforce all of its public land 
regulations and does so with the resources and authority provided to it 
by Congress. We believe that the final grazing regulations provide 
adequate authority for BLM to take action when necessary to arrest and 
reverse environmental damage attributable to livestock grazing on 
public lands. Regulations governing coal bed methane development are 
found in 43 CFR part 3100 and are not addressed in this rule. BLM 
cannot grant management authority for one user group, as such, to 
``manage'' another user group. However, any qualified individual or 
business entity may obtain a permit under BLM regulations to carry on 
specific activities on public lands. For example, a rancher can obtain 
a special recreation permit under 43 CFR part 2930 and operate as an 
outfitter or guide. However, the rancher cannot obtain authority to bar 
casual recreational use of the allotment he uses, as the comment seems 
to suggest would be desirable.

H. Other Recommendations

    Several comment letters offered additional recommendations for BLM 
actions that were not specific to any particular regulatory section.
1. Advisory Councils and Grazing Advisory Boards
    BLM received comments regarding advisory council membership and 
function. A comment stated that we should re-establish Multiple Use 
Advisory Councils (MUAC) to resolve local issues, contending that the 
RACs that superceded MUACs and Grazing Advisory Boards in 1995 in many 
cases cover too large an area to respond adequately to local issues. 
Such MUACs reorganized on a District or Field Office basis, according 
to the comment, could be a positive force for problem solving,

[[Page 39435]]

conflict resolution, and vetting land management issues far beyond 
grazing management matters. Another comment suggested that RAC 
membership be made up of 50 percent conservationists, 10 percent 
community interests, and 30 percent independent biologists and not be 
dominated by ranchers who represent their narrow special interest. One 
comment stated that BLM should drop reference to RACs as public 
oversight bodies because they are ineffective at arriving at a 
decision.
    The suggestion to re-establish MUACs is outside the scope of this 
rule. To the extent there is concern that RACs cover too large an area 
to address local issues adequately, the regulations pertaining to RACs 
at 43 CFR subpart 1784 provide for the formation of RAC subgroups to 
gather local level input on specific issues. If you believe a 
particular issue should be addressed on a smaller subgroup scale by the 
RAC with which you are associated, you, as a member of the public, may 
suggest such an action to the RAC. The comment implies that RACs only 
consider grazing management matters. However, the regulations at 43 CFR 
subpart 1784 provide that RACs can address all facets of public land 
management. Regarding RAC composition, regulations at section 1784.6-
1(c) and (d) require that the Secretary provide for balanced and broad 
representation from commercial, environmental, scientific, and 
aesthetic interests, as well as the public, Tribes, and state and local 
governments. This balanced composition of the RAC comports with the 
statutory requirements of Section 309 of FLPMA. We have not adopted 
these suggestions in the final rule.
    Some comments expressed disappointment that BLM chose not to 
propose reestablishment of Grazing Advisory Boards as suggested during 
the public scoping process on the ANPR and the notice of intent to 
prepare an environmental impact statement. They further expressed 
disappointment in the justification for not pursing regulations that 
would allow board establishment that was presented in the DEIS section 
2.4.
    The RACs that were established following the 1995 grazing 
regulation amendments have generally assumed the role played by the 
Grazing Advisory Boards, whose authority ``sunset'' on December 31, 
1985. RACs provide an evenly balanced advisory board to cooperate with 
BLM, and are available to represent local interests on all facets of 
public land management. The regulations governing board functions at 43 
CFR subpart 1784 also provide for the formation of RAC subgroups to 
gather local level input on specific issues. The suggestion to redefine 
the role of RACs is outside the scope of this rulemaking. Moreover, we 
disagree that they are ineffective as public oversight bodies. The RACs 
represent a balance of views among various interests concerned with the 
management and use of the public lands. Furthermore, the Councils are 
advisory in nature and have given the public an effective forum for 
participating in the management of the public lands, as well as giving 
land managers direct public insight into proposed programs and 
policies. BLM has included in this final rule a provision that BLM 
cooperate with Tribal, state, county, or locally established grazing 
boards when reviewing range improvement projects and allotment 
management plans on public lands. We feel that these existing and 
proposed provisions adequately address the need for a forum for 
cooperation and coordination on both local and regional issues 
affecting livestock grazing on public lands.
2. Wild Horses and Burros
    One comment objected to the ``unfair treatment BLM has given to 
wild horses, using them as scapegoats for the abuses of livestock and 
plotting to eliminate them along with the vested interest livestock 
community.''
    BLM manages rangelands for multiple use and sustained yield, and 
follows all laws and regulations governing the management of public 
lands, including the Wild and Free Roaming Horse and Burro Act of 1971. 
Management considerations for and analysis of impacts on wild horse and 
burro populations are described in EIS chapters 3.12, 4.2.9, 4.3.9, and 
4.4.9. BLM consults with the Wild Horse Advisory Board to coordinate an 
efficient management program in accordance with statutory direction and 
at a level commensurate with funding appropriated by Congress.
3. Reserve Common Allotments
    We received several comments on the concept referred to as 
``Reserve Common Allotments'' (RCA), which was discussed in the ANPR. 
We decided not to pursue the possibility of creating RCAs in the 
proposed rule following a generally unenthusiastic reception during the 
public scoping process. Comments that opposed this concept speculated 
that it would foster abuse and excessive grazing on the one hand, or 
could lead to a loss of preference AUMs on public lands on the other. 
Some comments supported designation of RCAs on a temporary basis only, 
not permanent designation that would eliminate those AUMs from term 
permit availability. Comments that supported the RCA concept expressed 
disappointment that we did not propose them because they recognized the 
RCA as a potential solution to environmental and economic challenges 
confronting modern-day ranching. Another comment suggested that RCAs 
could provide an outlet for producers whose allotments are unusable due 
to weather, fire, or scheduled range improvements such as prescribed 
burning or stream restoration. This comment also suggested implementing 
the concept on a pilot basis and monitoring performance on a set of 
administrative and ecological criteria.
    BLM recognizes that these thoughtful comments demonstrate cautious 
interest and qualified support of the RCA concept. It is also obvious 
that the proposal rolled out in the ANPR was insufficiently defined and 
inadequately developed to gain full public support. We will continue to 
examine the concept of establishing temporary or permanent forage 
reserves, or alternative management scenarios, through future 
policymaking processes. Due to the keen interest in this subject, we 
will communicate with the public during any policy development process 
on RCAs.
4. Incentives for Good Stewardship
    Some comments stated that rangeland conditions would improve if BLM 
regulations established various incentives for ranchers who implement 
good management practices, or allowed ``considerations'' for permittees 
who voluntarily reduce livestock numbers or build wildlife projects, or 
provided for purchasing willow whips from private landowners for 
planting on public lands. One comment suggested adopting conservation 
easement tax laws currently in effect in Colorado, New Mexico, and 
other states.
    In past decades, BLM, in consultation with user groups and the 
public, has examined various programs (e.g. Incentive Based Grazing 
Fees--1993; Cooperative Management Agreements--1984) intended to 
provide incentive for rancher stewardship of public lands for multiple 
uses, including wildlife habitat. Ultimately, consensus could not be 
achieved and these efforts were set aside. More recently, in early 
2003, BLM's Sustaining Working Landscapes (SWL) policy development 
initiative explored possible incentives for ranchers to engage in 
partnerships to achieve conservation ends, while encouraging and 
enabling good stewardship. In mid-2003, BLM decided to focus its 
grazing program resources

[[Page 39436]]

on this rulemaking effort, rather than attempt simultaneously to 
accomplish SWL policy development and a rule. Upon completion of this 
rule, BLM intends to revisit SWL policy concepts and focus on updating 
grazing manuals and technical procedures needed to implement the 
grazing rules.
    While BLM supports the use of conservation easements for protection 
of watershed and habitat values on private lands, we do not have 
authority to change the tax laws of individual states.
5. Encouraging Flexible Management
    One comment expressed concern that proposed changes in the 
regulations would limit adaptive management options, and urged BLM to 
increase opportunities for adaptive management for unforeseen 
circumstances such as drought.
    The proposed rule is designed to improve working relations with 
permittees and lessees. Better working relationships should result in 
more frequent communication and greater willingness to consider 
additional management alternatives.
6. Determining Appropriate Technical Procedures
    One comment stated that BLM should incorporate the scientific and 
economic principles expressed in Catlin et al. (2003) and Stevens et 
al. (2002) into its analysis and permit renewal processes, so that 
appropriate changes are made to ensure that native diversity and 
productivity are restored to grazed BLM lands. (The comment refers to 
Catlin, James, Jaro Walker, Allison Jones, John Carter, and Joe Feller, 
2003: Multiple use grazing management in the Grand Staircase National 
Monument. A tool provided to the Monument range staff by the Southern 
Utah Land Restoration Project and Stevens, Laurence E., Peter Stacey, 
Don Duff, Chad Gourley, and James C. Catlin, 2002: Riparian ecosystem 
evaluation: a review and test of BLM's proper functioning condition 
assessment guidelines.)
    Employment of the technical procedures and principles described by 
these documents is appropriately addressed in policy, manuals, and 
guidance rather than in a rule. When revising policy, manuals, and 
other guidance, BLM reviews all available technical materials, and will 
review the Catlin and Stevens articles before the next revision.
    One comment stated that BLM policy should require that grazing 
decisions always be based on appropriate scientific data because it is 
required by the Data Quality Act.
    Some comments maintained that BLM is required to prove, on 
administrative appeal, that the terms and conditions of grazing permits 
are consistent with the Data Quality Act (DQA), Section 515 of the 
Treasury and General Government Appropriations Act for Fiscal Year 2001 
(Pub. L. 106-554).
    As discussed above, BLM is not required to launch an affirmative 
defense of grazing permits in response to an administrative appeal to 
OHA. BLM may come forward with a rebuttal, but the appellant bears the 
ultimate burden of persuasion.
    OHA may not be the forum of choice for raising questions with 
respect to BLM's compliance with the DQA's standards (i.e., ``the 
quality, objectivity, utility, and integrity of information''). As 
required by the DQA, BLM has issued guidelines that provide an 
administrative mechanism for raising such questions directly with BLM 
(Bureau of Land Management Information Quality Guidelines, published 
October 1, 2002).
    Another comment stated that utilization studies sanctioned by BLM 
should include methodology for determining which species consumed the 
forage to ensure that measures taken to correct over-utilization are 
effective.
    Methodologies for utilization studies are better addressed in 
reference manuals, guidance, and policy.
    One comment stated that BLM should require data used to support 
changes in grazing preference to be acceptable to the permittee or 
lessee, as well as to the BLM authorized officer.
    Congress entrusted the Secretary of the Interior with the 
responsibility to manage the public lands. The Secretary, in turn, has 
delegated this responsibility to BLM. We understand that permittees and 
lessees are more likely to accept decisions and act cooperatively if 
the data we use to support changes in grazing preference are acceptable 
both to BLM and the affected permittees or lessees. However, if the 
data BLM uses to support changes in grazing preference are not 
acceptable to a permittee or lessee, BLM is still obligated to make its 
management decision in light of its statutory management 
responsibilities.
7. Access to Public Lands
    One comment stated that BLM should require other users of the 
public lands to get permission to be on public land from BLM, and that 
BLM should inform the permittee when other users and/or BLM staff will 
be out on the permittee's allotment.
    Determining whether and under what circumstances public land users 
other than livestock permittees need approval to use public lands is 
outside the scope of this rule. Casual recreationists normally do not 
need permits to visit public lands, so there is no way BLM can inform 
grazers in advance of such visitation. Whenever feasible, in the spirit 
of consultation, cooperation, and coordination, BLM will inform the 
livestock operators in advance about BLM field operations or public 
uses under permit, lease, or license that affect grazing management of 
allotments where they have permits or leases. However, a provision 
requiring advance notification would be impractical to implement and 
detract from efficient management of the public lands. BLM declines to 
adopt this suggestion.
    One comment asserted that a rancher does not have to have a grazing 
permit to access his vested rights, and that the rancher's ownership of 
water rights, forage rights, and improvements are issues that are not 
appealable, and cited several court decisions.
    Under the TGA (sections 3 and 15), ranchers must hold a BLM permit 
or lease in order to graze livestock on public lands. The current 
regulations, as well as the proposed regulations, reiterate this 
requirement, at 40 CFR subparts 4130 and 4140, which has been upheld by 
decisions of Federal courts. See, e.g., Osborne v. United States, 145 
F.2d 892, 896 (9th Cir. 1944) (livestock grazing on public lands is 
``under the original tacit consent or*. * * under regulation through 
the permit system * * * a privilege which is withdrawable at any time 
for any use by the sovereign.'') Although the Court of Federal Claims 
ruled in 2002 that a holder of ditch right-of-way established under the 
Act of 1866 also has an appurtenant right for livestock to forage 50 
feet on each side of the ditch, this matter is still in litigation and 
no final decision has been rendered by the court. Hage v. United 
States, 51 Fed. Cl. 570, 580-84 (2002).
8. Judicial Matters
    A comment stated that BLM should add a provision to the grazing 
regulations requiring BLM to notify permittees when BLM has received a 
Notice of Intent to sue or has been sued under ESA, Clean Water ACT 
(CWA) or other environmental law, when the outcome of the lawsuit may 
affect the permittee's allotments or grazing privileges. This advance 
notification would allow the permittee to take whatever action he deems 
necessary to protect his interests.
    Notification procedures for potential challenges under various 
federal laws are more appropriately handled through policy rather than 
regulation. This is

[[Page 39437]]

because as statutory or regulatory provisions change BLM may have to 
undertake a regulatory change, which is time consuming. BLM does not 
have rulemaking authority to implement CWA or ESA as to citizen-suit 
provisions or notice of intent provisions. The CWA provides that notice 
``shall be given in such manner as the Administrator [of the 
Environmental Protection Agency] shall prescribe by regulation.'' 33 
U.S.C. 1365(b). The FWS and NOAA Fisheries may promulgate regulations 
for the enforcement of the ESA, by citizen suit and by other means. 16 
U.S.C. 1540(f). BLM will defer to the rulemaking authorities of these 
agencies. As a matter of policy and customer service, however, BLM 
routinely informs grazing operators of such eventualities as lawsuits 
that may affect their allotments.
9. Interagency Cooperation
    One comment stated that BLM should collaborate with other agencies 
like FWS, and another stated that state wildlife agencies should be 
fully engaged, because BLM decisions can easily affect these other 
agencies and their work, because BLM decisions can affect species of 
concern, and because effective wildlife management requires 
coordination with uses related to grazing management.
    BLM routinely consults with FWS and NOAA Fisheries in accordance 
with the requirements of the ESA and BLM Manual 6840 on Special Status 
Species Management. This consultation ensures that actions requiring 
authorization or approval by BLM are consistent with the conservation 
needs of species of concern and do not exacerbate the need to list 
additional species. As for state agencies, current regulations require 
cooperation with them. This rule does not change this. Section 4120.5-2 
states, ``The authorized officer shall, to the extent appropriate, 
cooperate with Federal, State, Tribal and local governmental entities, 
institutions, organizations, corporations, associations, and 
individuals.'' Many specific provisions also call for cooperation and 
consideration with the staff having lands or managing resources in the 
area affected by proposed BLM grazing management decisions.
    For more commentary regarding interagency cooperation, see the 
discussion of section 4120.5-2, Cooperation with Tribal, state, county, 
and Federal agencies, in Part V of this preamble.

V. Section-by-Section Analysis and Response to Comments

    In the following paragraphs of the preamble, we discuss briefly the 
sections of the regulations that appeared in the proposed rule, how the 
proposed rule changed each section, whether and how we further amended 
each section in the final rule, the comments we received addressing 
each section, and how we respond to those comments.

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

Section 4100.0-2 Objectives
    In the proposed rule we made technical and editorial corrections to 
this section to remove reference to regulatory provisions that no 
longer exist and to acknowledge that the Public Rangelands Improvement 
Act (PRIA) contributes to the objectives of the regulations. Several 
comments urged BLM to adopt section 4100.0-2 as proposed.
    One comment addressed this section, stating that BLM should remove 
the statement ``to accelerate restoration and improvement of public 
rangelands to properly functioning conditions' and change the words 
``consistent with'' to ``that is in conformance with,'' for several 
reasons. First, removal of this objective would ensure that the public 
is not distracted from the real objectives of grazing management, which 
are expressed in the applicable land use plans. These plans may or may 
not require the ``restoration and improvement of public rangelands to 
properly functioning conditions' upon every acre of the public lands. 
Second, removal of the objective would make it clear that the 
applicable land use plan and relevant laws guide management.
    We have not amended the objectives section in response to this 
comment. ``[T]o accelerate restoration and improvement of public 
rangelands to properly functioning conditions'' is a proper objective 
for these regulations, and consistent with Section 2 of the TGA (``The 
Secretary * * * shall make provision for the protection * * * and 
improvement of * * ) grazing districts and do any and all things 
necessary to insure the objects of such grazing districts, [including] 
* * * to preserve the land and its resources from destruction or 
unnecessary injury [and] to provide for*. * * improvement of the range; 
and the Secretary * * * is authorized to * * * perform such work as may 
be necessary amply to protect and rehabilitate the areas subject to the 
provisions of this Act * * *''). To ensure clarity regarding the role 
of land use plans and grazing management, section 4100.0-8 of the 
regulations, which is not changed by this final rule, continues to 
state unequivocally that ``* * * [l]ivestock grazing activities and 
management actions approved by the authorized officer shall be in 
conformance with the land use plan as defined at 43 CFR 1601.0-5(b).''
    Rangeland Standards and Guidelines (43 CFR part 4180) have been or 
are required to be developed statewide and/or regionally in 
consultation with RACs. Once standards and guidelines were developed 
for a particular area, BLM reviewed the relevant land use plans to 
ensure that their provisions were consistent with achieving standards 
and conforming with guidelines. In some cases, it was necessary to 
amend land use plans to make their provisions consistent with achieving 
standards and conforming with guidelines. Restoration and improvement 
of rangelands to properly functioning conditions are objectives of the 
grazing regulations and are implemented in a manner that conforms with 
applicable land use plan decisions.
    BLM planning regulations define ``conformity'' or ``conformance'' 
as meaning that a resource management action is specifically provided 
for in the land use plan or, if not specifically mentioned, clearly 
consistent with the terms, conditions, and decisions of the plan (43 
CFR 1610.0-5(b)). The planning regulations define ``consistent'' as 
meaning that plans will adhere to the terms, conditions, and decisions 
of resource related plans, or in their absence with policies and 
programs (43 CFR 1610.0-5(c)). We cannot anticipate in land use plans 
the specific circumstances involved in subsequent grazing decisions. 
Therefore, the specific term chosen for use in this rule, either 
``conformance'' or ``consistent,'' would not alter the intent of the 
objective described in this rule. Finally, all individual records of 
decision issued when BLM adopted land health standards pursuant to 
section 4180.2 amended applicable land use plans to include those land 
health standards.
Section 4100.0-3 Authority
    The proposed rule made 3 editorial corrections in this section. One 
comment stated that the proposed rule lacked reference to, and 
consideration of, 43 U.S.C. 315a and 1732(b), and 48 Stat. 1269, on 
management of use, occupancy, and development of public lands. These 
provisions are included in this section, either expressly or 
implicitly. We make no changes in this section of the final rule.

[[Page 39438]]

Section 4100.0-5 Definitions--``Active Use''
    We amended the definition of ``active use'' to make it clear that 
the term refers to a forage amount based on the carrying capacity of, 
and resource conditions in, an allotment.
    ``Active use'': In this definition, we have substituted the word 
``livestock'' for ``rangeland'' in the reference to carrying capacity. 
The change makes the definition consistent with all other references to 
``carrying capacity'' in the rule.
    BLM received several comments that suggested alternative 
definitions for the term ``active use.'' Some comments suggested that 
active use should be based on ``forage available on a sustained yield 
basis.'' The comments also suggested that we define the term ``forage 
available on a sustained yield basis.'' Other comments suggested that 
the definition of active use should include reference to monitoring 
data and documented resource conditions in an allotment. One comment 
suggested that ``active use'' should include both ``authorized use'' 
and ``nonuse.''
    We have made no change to the definition of ``active use'' in the 
final rule in response to these comments. In the final rule the term 
``active use'' is the amount of forage that is available for grazing 
use under a permit or lease. Active use is based upon resource 
conditions within an allotment. When permittees or lessees apply not to 
use all or a portion of their active use in any particular year, they 
are applying for ``nonuse.'' If BLM finds it necessary to reduce the 
level of grazing use permitted either temporarily or indefinitely, we 
will suspend ``active use.'' At that point, active use is reduced and 
suspended use is created or increased, either temporarily or 
indefinitely. ``Active use'' is a grazing-program-specific 
administrative term and does not include all forage available on a 
sustained yield basis within an allotment, because other forage, or 
potential forage, within the allotment is allocated under the auspices 
of the applicable land use plan to watershed protection, plant 
maintenance and reproduction, to wildlife habitat and, where wild 
horses or burros are present, to forage for those animals.
Section 4100.0-5 Definitions--``Conservation Use''
    We removed the definition of the term ``conservation use,'' and 
removed the term itself everywhere it appears in the existing 
regulations, in keeping with the 10th Circuit Court decision discussed 
earlier in this preamble.
    Several comments opposed removing the concept of conservation use 
permits from the regulations. One comment expressed the need for a 
mechanism to rest rangelands for extended periods of time when 
necessary to recover plant composition and forage production or protect 
important habitats. Others stated that the regulations should not make 
it difficult or a lower priority for a conservation group to buy 
grazing permits. They pointed out that if BLM collects its fees from a 
conservation group, from a revenue perspective it makes no difference 
if the conservation group decides not to graze livestock, and that such 
non-grazing would have minimal impact on western economies. The comment 
also said that such groups are often able to pay willing sellers higher 
prices for permits, and that such transactions result in healthier 
rangelands. Another comment said that BLM should convene a forum of 
permittees, conservationists, and agency representatives to explore 
regulatory options for facilitating ``willing seller--willing buyer'' 
grazing permit retirement. One comment acknowledged that changes in 
allotment use for conservation purposes is no longer permitted, because 
conservation use was set aside in the 10th Circuit Court of Appeals 
decision in Public Lands Council v. Babbitt, but encouraged BLM to 
continue to work within applicable laws and regulations to allocate 
rangeland uses that achieve multiple-use goals, such as providing 
important wildlife habitat and contributing to water quality and soil 
retention, while providing compensation to the public commensurate with 
what other range users provide.
    The amendment in the final rule of the temporary nonuse section of 
the regulations removes the 3-year limit on nonuse by a grazing 
permittee. This proposed rule will achieve the goals set forth in this 
comment. BLM is able to designate areas as not available for grazing by 
decision, based upon the land use plan's multiple use objectives, or to 
withdraw areas from grazing under Section 204 of FLPMA. BLM can also 
make changes in grazing management such as adjusting, reducing, or 
eliminating grazing use based on a determination that existing 
livestock grazing management or levels of use are a significant factor 
in not achieving or making progress toward achieving land health 
standards.
    One comment that supported removal of reference to ``conservation 
use permits'' stated that not grazing can result in fuel build-up and 
catastrophic fires.
    The removal of the term ``conservation use'' from the regulations 
is required by Federal court decision (Public Lands Council v. Babbitt, 
supra). The final rule provides adequate options to achieve the 
purposes expressed in the comment supporting the need for a rest 
mechanism. Section 4130.4 provides the authorized officer the ability 
to authorize nonuse as needed to provide for resource conservation, 
enhancement, or protection. Even though the nonuse will be reviewed and 
approved on an annual basis, the rule provides the mechanism to 
accommodate nonuse for the time needed to achieve plant composition, 
forage production, or habitat improvement objectives.
    Regional RACs may be one forum for permittees and/or 
conservationists to discuss options for grazing permit retirement. 
However, creating and administering ``willing seller--willing buyer'' 
grazing permit retirement opportunities is beyond the scope of the 
rule. At regional RAC meetings, it may be appropriate to discuss 
conservation buy-outs, but, as noted earlier, BLM does not have 
authority at the present time to ``buy out'' permits.
    Many comments urged BLM to provide means and methods for reducing 
or eliminating grazing in specific areas, such as by appealing and 
challenging the court's ruling against conservation use permits or 
allowing conservation buy-outs as a provision of the regulations, 
giving a number of reasons:
    a. Some areas require long-term or permanent protection for 
rangeland environmental health.
    b. The proposed rule will not promote sustainable grazing.
    c. The elimination of conservation use also eliminates the 
opportunity for a conservation easement.
    d. Such arrangements can have substantial economic and other 
benefits for all concerned.
    e. Most people consider conservation to be a legitimate use of the 
land.
    BLM is able to designate areas as not available for grazing by 
decision based upon the land use plan's multiple use objectives, or to 
withdraw areas from grazing under Section 204 of FLPMA. The Bureau is 
also able to make changes in grazing management, such as reducing or 
eliminating grazing use, based upon a determination that livestock 
grazing is a factor in not meeting the standards for rangeland health.
    One comment stated that BLM and Congress should consider amending 
the TGA to allow for conservation use, because that might be the only 
legal way

[[Page 39439]]

to protect resources from livestock grazing.
    Amending laws, such as the TGA, FLPMA, and PRIA, is not within the 
scope of the proposed rule or the authority of BLM.
Section 4100.0-5 Definitions--``District''
    We have amended the definition for the term ``District'' to update 
the regulations as to the organization of BLM field offices. The term 
is not to be confused with ``grazing district.'' The latter term either 
is used in its full form--``grazing district''--or appears in context 
so that its meaning is clear.
Section 4100.0-5 Definitions--``Ephemeral Rangelands''
    We have revised the definition for this term as well, as suggested 
in comments. This definition was not in the proposed rule, but the 
change suggested in the comments was more of a clarification than a 
change, removing the notion that production of sufficient forage by 
ephemeral range was necessarily unusual. Therefore, we removed the 
phrase ``may briefly produce unusual volumes of forage'' and added in 
its place the phrase ``from time to time produce sufficient forage.''
Section 4100.0-5 Definitions--``Grazing Lease/Grazing Permit''
    We amended the definitions of ``grazing lease'' and ``grazing 
permit'' for purposes of clarification, to make it clear that BLM 
issues grazing leases to authorize grazing on lands that are not within 
grazing districts established under the TGA, and permits to authorize 
grazing within grazing districts.
    One comment from a state game and fish agency stated that we should 
not amend the definitions of ``grazing lease'' and ``grazing permit,'' 
because inclusion of preference in the text of a grazing lease leads to 
the lease establishing the stocking rate. The comment contended that a 
grazing lease is not the appropriate vehicle for establishing a 
stocking baseline.
    We have not adopted this recommendation. Changes in the definitions 
are required in order to remove conservation use from the regulations, 
based on the 1999 Tenth Circuit Court of Appeals decision. Grazing 
preference, as well as other allowable uses on all BLM lands, is 
established in land use plans. Grazing permits and leases are the 
instruments that authorize grazing use, based on land use planning 
allocations. Under section 4110.3, BLM will periodically review the 
grazing preference specified in a grazing permit or lease, and make 
changes in the grazing preference as needed to help achieve management 
objectives and to attain rangeland health.
    Comments stated that the definitions should not provide that the 
grazing permit or lease is the document that authorizes grazing on 
public lands, because this unnecessarily triggers the need to document 
NEPA compliance.
    The TGA directs BLM to authorize livestock grazing through a permit 
or lease. NEPA provides requirements for Federal actions including the 
issuance of grazing permits and leases. BLM must comply with provisions 
of both laws.
    Comments urged BLM to amend the definition of a grazing permit to 
require that landowners be engaged in the livestock business in order 
to acquire a Federal grazing permit. They stated that this requirement 
is based on a provision of the TGA.
    The TGA does not require a permit or lease holder to be in the 
livestock business. Section 3 of the Act states, ``Preference shall be 
given in the issuance of grazing permits to those within or near a 
district who are landowners engaged in the livestock business.'' 
Therefore, being in the livestock business is not a requirement, only a 
point of priority for receipt of a forage allocation.
    Other comments cited legislation pending in Congress that would 
allow the voluntary buyout of grazing permits, and stated that the 
proposed definition of ``grazing permit'' would complicate the 
potential for such voluntary buyouts.
    BLM has not changed the final rule in response to this comment. 
Pending legislation is not authority for regulation. If the legislation 
were to pass both houses of Congress and be signed by the President, 
BLM would, if necessary, amend the regulations to implement the new 
legislation.
Section 4100.0-5 Definitions--``Interested Public''
    Under the definition of ``interested public'' in the 1995 
regulations, an individual, group, or organization could obtain 
interested public status by (1) submitting a written request for 
involvement in the decisionmaking process associated with specific 
allotments, or (2) by submitting written comments during a formal 
public comment period associated with a decision within a specific 
allotment.
    In the proposed rule, we revised the definition of ``interested 
public'' to refer to an entity that has done one of two things: (1) 
Submitted a written request to BLM to be provided an opportunity to be 
involved in the process leading to a BLM decision on the management of 
livestock grazing on public lands, and followed up that request by 
commenting on or otherwise participating in the decisionmaking process 
as to the management of a specific allotment if there has been an 
opportunity for such participation, or (2) submitted written comments 
to the authorized officer regarding the management of livestock grazing 
on a specific allotment. Thus, a person, group, or organization still 
would qualify as a member of the interested public simply by commenting 
on grazing management in a specific allotment during an announced 
public comment period.
    In the final rule, we have further amended the definition to 
require a written request to cover individual allotments. Under current 
wording, a potential interested public could write one letter 
requesting interested public status as to all ``public lands.'' Each of 
BLM's 162 field offices would then be obligated to send this entity 
information, for purposes of local consultation/commenting 
opportunities, and then ``weed out'' the interested public from their 
local lists if the potential interested public does not specifically 
respond or take advantage of the consultation opportunity. Keeping the 
definition's focus on management of a specific allotment will keep the 
process more orderly and efficient.
    Use of the term ``grazing management'' when speaking of allotments 
is redundant, given the definition of ``allotment'' elsewhere in the 
regulations. Therefore, there is no need to include it in the 
``interested public'' definition--since the ``interested public'' 
definition uses the term ``allotment.''
    We received many comments regarding this definition. Many of the 
comments on the topic were concerned that this change could unduly 
exclude public input from the grazing management decision process. Some 
comments stated that this change could lead to secretive decision 
making by BLM. Others stated that the new qualification criteria posed 
an unreasonable barrier to participation. Contrarily, a significant 
number of comments stated that more requirements should be imposed to 
avoid what they saw as unnecessary delays and frivolous protests and 
administrative appeals. Suggestions for additional requirements 
included an annual application process or other time limit on 
interested public status. Creating a substantive standard for the 
participation requirement was also

[[Page 39440]]

suggested. Some comments suggested that the interested public be 
narrowed to include only grazing lessees and permittees and local users 
of the land. Finally, a significant number of comments supported the 
changes as proposed.
    BLM seeks to balance the legitimate need for public involvement in 
the management of public lands with the public interest in the cost-
effective administration of the public participation process. Since the 
definition of interested public was last changed in 1995, BLM has 
devoted substantial resources to the public participation process. Some 
of these resources have been devoted to tasks such as maintaining lists 
that include individuals and groups that have not participated in 
allotment management activities in years. These uninvolved members of 
``interested public'' still receive periodic mailings at taxpayer 
expense.
    BLM recognizes the importance of public participation and desires 
to provide an opportunity for all those who demonstrate an ongoing 
interest in an allotment to participate. Requiring some follow-up 
activity is not unreasonable, but allows the individual or group to 
demonstrate true continuing interest in the activities on the 
allotment. BLM has not adopted any further qualification requirements, 
in order to maintain an open process available to all of the public. 
Annual applications or minimum criteria standards would create 
additional paperwork requirements, and could run counter to the 
administrative efficiency goal. Also note that the change to the 
interested public definition does not in any way affect the public 
notice and public participation opportunities available when potential 
grazing decisions are analyzed under NEPA.
    One comment stated that, to enhance BLM's working relationship with 
the permittee and to bring cohesive management into the decisionmaking 
process, monitoring should be conducted only by the permittee and BLM, 
omitting the interested public.
    Section 202(f) of FLPMA makes clear that it is the direction of 
Congress that BLM must allow for public involvement and allow the 
public to comment upon and participate in the formulation of plans and 
programs relating to the management of public lands. An important 
element of our plans is the establishment of resource management 
objectives, which then must be monitored. The grazing regulations do 
not address who should or should not be involved in monitoring. It is 
BLM's policy to encourage partnerships with appropriate interests to 
accomplish our work. When the interested public joins in conducting 
monitoring studies with BLM, they bring their perspective to the 
management of resources, which often is different from the perspective 
of BLM or the permittee. BLM benefits from this perspective by 
receiving more diverse information upon which to base its decisions. 
BLM retains discretion to reject monitoring information that does not 
meet agency standards, regardless of who collects it.
    One comment stated that removing some requirements to consult with 
the ``interested public'' while adopting a requirement to cooperate 
with state, county, or locally-established grazing advisory boards 
provides preferential treatment to one group over another. The comment 
questioned whether this change ensures ``a consistent community-based 
decision-making process.''
    The final rule retains requirements for consultation, cooperation, 
and coordination with the interested public for:
     Apportioning additional forage on BLM-managed lands;
     Developing or modifying an allotment management plan or 
grazing activity plan; and
     Planning range development or improvement programs. For 
example, the final rule provides for continued participation by the 
interested public at the same level as the state, county, or locally-
established grazing advisory boards. The rule also retains requirements 
to
     Allow the interested public to review and comment on 
grazing management evaluation reports; and
     Notify the interested public of proposed and final grazing 
decisions.
    The final rule provides the interested public with ample 
opportunities to participate and provide input to BLM on its management 
of public lands, even though the rule limits the interested public's 
role in day-to-day operational aspects of the grazing program. BLM's 
experience under the existing regulations is that this form of public 
participation is often inefficient and unproductive. The final rule 
allows the authorized officer discretion to determine appropriate on-
the-ground management actions to achieve plan objectives and respond to 
various resource conditions.
    Two related comments questioned BLM's proposal to restrict 
interested public participation to plan-level or program-level 
decisions. The comments stated that information and decisions presented 
at this level are often too broad and general to allow specific and 
meaningful evaluations or comments, and site-specific actions have the 
greatest potential to impact fish and wildlife, including species 
listed under the Endangered Species Act. The comment asserted that it 
is therefore important to retain public consultation requirements for 
site-specific resource decisions.
    An important element of BLM land use planning is the establishment 
of resource management objectives. These are designed to prompt 
managers to achieve standards and implement guidelines under pertinent 
state and Federal laws in order to improve the condition of the land 
resource. Most if not all of the site-specific actions that would 
affect fish and wildlife are included in the development or 
modification of an allotment management plan and the planning of range 
improvements. Both allotment management and range improvement planning 
continue to require consultation, cooperation, and coordination with 
the interested public under the final rule. BLM is seeking to balance 
the need for public involvement in the management of public lands with 
the public interest in the cost-effective management of those lands.
    Still another comment expressed concern that members of the public 
(other than the grazing permittee) should be given the opportunity to 
submit comments regarding a grazing permit environmental assessment 
(EA). The comment stated that, because grazing management affects many 
resources on which fish and wildlife depend, it would be valuable to 
allow predecisional comments from all interested parties to be 
introduced into the public record. The comment stated that the 
opportunity for review under NEPA may not allow for timely and site-
specific public input. The comment stated that efforts to simplify and 
streamline the NEPA process could result in the agencies and the public 
being informed only about those projects that warrant an EIS, when most 
proposals for changes in rangeland management are evaluated in EAs.
    The final rule does not change relevant requirements pertaining to 
public involvement in the NEPA process. While BLM has proposed CXs that 
would pertain to grazing decisions (71 FR 4159, January 25, 2006), at 
present BLM consults with the public and provides notice regarding NEPA 
activities to the public, pursuant to CEQ's regulations at 40 CFR 
1501.4(b) and 40 CFR 1506.6(b). Grazing EAs are made available for 
public review if the manager responsible for authorizing the action 
believes it necessary. Public

[[Page 39441]]

participation might also occur as part of determining the scope of the 
assessment.
    Under the final rule, the interested public will still be provided 
a copy of the proposed decision and associated NEPA documents or 
notified of the availability of the NEPA document, may protest proposed 
decisions under section 4160.2, and may seek appeal of a final decision 
under section 4160.4.
    Also, section 4130.3-3(b) provides the interested public 
opportunity to review and provide input to reports that lead to 
decisions to modify grazing use.
    There are several opportunities for public involvement in the 
process of issuing grazing permits. The interested public may comment 
on or otherwise provide input in the development of reports leading to 
adjustments in terms and conditions, the development of allotment 
management plans (section 4120.2(a), (c), and (e)), which include terms 
and conditions that would be incorporated in the grazing permit, and in 
the permit decision process. At the authorized officer's discretion, 
the interested public may be, but is not required to be, consulted in 
the development of the terms and conditions of the permit.) BLM also 
consults Resource Advisory Councils during the preparation of Resource 
Management Plans (land use plans) and allotment management plans, 
providing the public an additional opportunity and means for 
participating in the land use planning process.
    Another comment proposed that public input be sought when there 
would be a significant change of land use. The comment stated that this 
may provide for useful public input information for making management 
decisions, but limit the opportunity for obstruction due to individual 
entity or public agendas.
    The comment seems to advocate a ``significance'' threshold for 
public participation. BLM declines to adopt such a threshold. BLM 
removed the requirement (but not the option) to consult with the 
interested public on actions that involve what BLM considers to be the 
day-to-day operational aspects of the grazing program, while preserving 
the requirement to consult with the interested public in apportioning 
additional forage, developing or modifying a grazing activity plan or 
range improvement plan, and preparing reports evaluating range 
conditions. These are actions for which public input would be of the 
greatest value in deciding management direction for the public land. 
This final rule does not affect the public's ability to participate 
when BLM formulates plans and programs for land use.
    One comment suggested that, in the definition of ``interested 
public,'' we should specifically identify that a ``lienholder of 
record'' is an entity that may be considered an interested public.
    We have not adopted this suggestion. A lienholder of record would 
be an individual, a group, or an organization, and there is no need to 
mention them specifically in the definition.
Section 4100.0-5 Definitions--``Grazing Preference; Permitted Use''
    We revised the definition of ``grazing preference'' to add the 
quantitative meaning of the term as it was used in the 1978 
regulations, as opposed to the 1995 rule, which defined it in terms of 
priority of use as against other grazers. Under the final rule, 
preference is the sum of active and suspended use. Related to this 
change, we removed the definition of ``permitted use,'' and substituted 
``preference'' or ``grazing preference,'' as appropriate, for 
``permitted use'' in the regulations.
    BLM received some comments supporting and some comments opposing 
the removal of the term ``permitted use'' and expanding the definition 
of ``grazing preference'' to include a livestock forage allocation. 
Favorable comments suggested that the term connects a public land 
livestock forage allocation with base property owned by the preference 
holder, thus facilitating preference transfer when the property changes 
hands, thereby providing stability and certainty for grazing operations 
as well as ranching communities, and eliminating the confusion that use 
of the term ``permitted use'' generated. Some of the comments in 
support of the change erroneously suggested that preference was somehow 
a fixed quantity, not subject to change.
    Comments opposing the change stated that the definition of 
preference has no basis in law, that it weakens BLM's administrative 
authority, that it will cause confusion unless further clarified, and 
that it would create expectations that BLM, when choosing among 
possible public land management actions, would be obligated to minimize 
livestock forage reductions, ensure they are temporary, and restore 
historical livestock forage allocations. Other comments opposing the 
change stated that, since allotments are quantified in terms of acres, 
further quantification in terms of forage is both unnecessary and 
unrealistic because the amount of forage produced on a given area is 
not a fixed quantity. Another comment suggested that the proposed 
definition of preference should not be adopted because it elevated a 
livestock forage allocation as first priority above other valid uses of 
vegetation, such as wildlife habitat and watershed protection. Some 
comments stated that the present definitions of preference and 
permitted use were consistent with the TGA. One comment stated that it 
was inappropriate to change the definition of ``grazing preference'' to 
include an amount of forage on public lands attached to a rancher's 
base property without considering other factors, such as species 
composition and diversity, vegetation structure and maturity, rare or 
ephemeral species, and soil condition. The comment stated that these 
factors do not necessarily relate either to livestock forage quantity 
or to base property attributes, and that using these factors in the 
definition of ``grazing preference'' gives the operator an 
inappropriate expectation of what is available for his or her use. The 
comment suggested that BLM consider other factors in defining ``grazing 
preference.''
    The final rule's modification of the definition of preference and 
the removal of the term ``permitted use'' will remove administrative 
inconsistencies from the regulations and provide for improved BLM 
administration of forage allocations on public lands. The amendment 
will alleviate confusion in the regulated community that has existed 
since 1995. The definition of ``preference'' in the rule supports the 
requirement that livestock forage allocations on public land be made 
within a multiple use context in accordance with land use plans under 
section 4110.2-2. When BLM determines that additional forage is 
available for livestock within a planning area, under this definition 
the preference holder is ``first in line'' for that portion of the 
available forage that occurs within his/her allotment(s). The 
definition does not mean and should not be construed to imply that 
satisfying a permittee's or lessee's livestock forage allocation (the 
preference) has the highest priority when BLM employs land use planning 
or activity planning processes to determine possible uses, or values to 
be managed for, that depend upon available vegetation. BLM reconciles 
competing demands for public land resources through its land use 
planning process.
    One comment suggested that the term ``preference'' should be 
redefined to mean the current livestock carrying capacity following 
forage allocations to wildlife, watershed protection, and land 
recovery. Another comment suggested that the definition of preference 
should

[[Page 39442]]

incorporate the concepts of distance from water and the percent slope 
or steepness of terrain. Another comment suggested that BLM should 
include in the definition of ``grazing preference'' the concept that 
forage is allocated according to land use plans, to emphasize the 
connection between permitted activities and the land use plan.
    The final rule includes the definition of ``grazing preference'' or 
``preference'' as proposed. As explained in the preamble to the 
proposed rule, the 1995 rules changes introduced some inconsistencies 
into the regulations (see the discussion in section III.D.9. of this 
preamble) by creating the term ``permitted use'' to mean the forage 
allocation, and narrowing the definition of ``preference'' to mean only 
a priority position as against other applicants for forage.
    ``Preference'' or ``grazing preference'' is a grazing-program-
specific administrative term that connects an individual entity's 
allocation of public land forage to property that it owns or controls. 
It allows BLM to record, in accordance with other applicable grazing 
regulations, a forage allocation on public lands, expressed in terms of 
``active use'' and use that has been suspended, or ``suspended use,'' 
together constituting ``preference,'' and administratively connect it 
to privately owned base property. It facilitates both the transfer of 
preference from one party to another and/or from one property to 
another, and the making of equitable adjustments of preference in 
``common allotments'' (allotments permitted or leased to more than one 
operator), when needed in the course of land management.
    In the 1978 grazing regulations, BLM formally defined ``grazing 
preference'' to be a forage allocation on public lands, expressed in 
AUMs, that is apportioned and attached to base property owned or 
controlled by a permittee or lessee. These regulations also stated that 
``grazing preference shall be allocated to qualified applicants 
following the allocation of the vegetation resources among livestock 
grazing, wild free-roaming horses and burros, wildlife, and other uses 
in the land use plans.'' Before 1978, BLM called livestock forage 
allocations on public lands ``grazing privileges.'' The amount of 
privileges awarded to individuals and attached to their base property 
was limited by the ``qualifications'' of the property. Determination of 
land base property qualifications was based in part upon the forage 
that was produced on the base property, and was used to help calculate 
BLM's determination of the property owner's forage allocation on public 
lands. Determination of water base property qualifications relied upon 
the forage production that occurred on public lands within the service 
area of the water that the water base property owner controlled. 
Adjudication of grazing privileges occurred independently from, and in 
many cases pre-dated, pre-FLPMA land use planning processes. Grazing 
privileges on public lands that were awarded in recognition of base 
property qualifications were informally referred to by ranchers and BLM 
alike as ``preference AUM's,'' and were distinguished from forage use 
approved on a temporary and nonrenewable basis and from forage consumed 
in the exercise of livestock crossing permits.
    Following the 1978 rulemaking that formally defined the term 
``grazing preference,'' establishment of preference was based on forage 
allocations that occurred in the course of implementing land use plans 
under FLPMA. In the majority of cases, these forage allocations 
mirrored the apportionment of forage that occurred under pre-FLPMA 
livestock grazing adjudications. In any event, all allocations were 
supported by resource information, including inventory and monitoring. 
Allocations that pre-dated FLPMA, and the preference that arose from 
those allocations in the course of implementing land use plans under 
FLPMA, do not ``trump'' BLM's multiple use mandate, which was 
formalized under FLPMA. On the contrary, forage allocations made under 
the auspices of FLPMA land use plans superseded the forage allocations 
made by the pre-FLPMA adjudications. All BLM offices with a grazing 
program are covered by land use plans completed since the enactment of 
FLPMA.
    As discussed below, increasing active preference or activating 
suspended preference is a valid grazing program goal. However, when 
considering management opportunities presented by an increase in 
vegetation available for forage or other uses and values, meeting this 
goal must be considered in concert with meeting other equally valid 
goals established by the land use plan.
    BLM is aware that an absolute quantity of forage production on 
public lands is not fixed in time. In accordance with the TGA and 
FLPMA, the grazing regulations provide for monitoring and assessment to 
support both temporary and long-term adjustments in grazing use, 
including the amount of forage that may be removed under a permit or 
lease, when BLM determines that such adjustments are warranted. It has 
been BLM policy for two decades that changes in the amount of forage 
allowed for grazing use under a term permit or lease (regardless of 
whether it is called ``active use'' or ``active preference'') must be 
supported by monitoring, or, since 1995, other resource information 
that indicates a need for adjustment, such as when the authorized 
livestock grazing significantly contributes to not meeting rangeland 
health standards (and excepting, of course, adjustments that are based 
on significant changes in management circumstances, such as land 
disposals rendering less land available for grazing use). However, 
although livestock grazing capacity can and does fluctuate in response 
both to natural events and to management inputs, BLM also seeks to 
provide reasonable stability to permittees and lessees who rely on 
public land forage authorized by their permit or lease. Therefore, BLM 
established a preference for removal of a specific amount of forage. 
There is no need to include a requirement for consideration of physical 
factors such as distance from water and steepness of terrain in the 
definition of preference. The appropriate place for including this type 
of guidance is in technical references and handbooks that address how 
to establish livestock grazing capacity. As indicated in the final rule 
at section 4110.3, BLM may adjust preference for several reasons, 
including the need to conform the livestock grazing use program to the 
provisions of applicable land use plans. BLM may also cancel preference 
outright when circumstances warrant, such as to impose a penalty for 
regulatory violations, or when public land is transferred to private 
hands or devoted to another public purpose that precludes livestock 
grazing.
    The regulatory provisions to place preference in ``suspension'' 
indefinitely apply when BLM adjusts allowable livestock forage removal 
based on a determination that grazing use or patterns of use are not 
consistent with the provisions of subpart 4180, or grazing is causing 
unacceptable utilization, or when use exceeds the livestock carrying 
capacity as determined through monitoring, ecological site inventory, 
or other acceptable methods, or for other purposes consistent with 
legal and regulatory requirements. The assumption behind indefinitely 
suspending preference is that, should management inputs result in 
restoring acceptable patterns or levels of utilization, or increased 
production of forage available to livestock, then BLM may reinstate the 
suspended use under section 4110.3-1(b). BLM believes it

[[Page 39443]]

appropriate to encourage management input by ranchers who hold 
preference by providing that when management inputs result in increased 
forage for livestock available on a sustained yield basis, they can 
expect that this forage will be made available to them without having 
to compete for it with other potential applicants. We view the 
reinstatement of suspended preference as an appropriate livestock 
grazing program goal that provides incentive to preference holders for 
improved livestock grazing management. Attaching the suspended 
preference to base property results in a record that transcends any one 
entity's or individual's tenure of ownership or control of that base 
property. In the event, perhaps decades later, that BLM determines that 
increased forage for livestock is available within a specified area, 
this record allows BLM to make fair and appropriate distribution of the 
increased livestock forage first to those with preference for grazing 
use in the area in question.
    To conclude, the definition of grazing preference contained in the 
final rule is consistent with its longstanding meaning--a meaning that 
was in formal usage for 17 years before it was changed by the 1995 
grazing regulations, and consistent with how the term ``preference 
AUM's'' was informally used before 1978.
Section 4100.0-5 Definitions--Suspension
    We amended the definition of ``suspension'' to remove the qualifier 
``temporary,'' which is redundant.
    Several comments stated that the definition of ``suspension'' could 
cause problems because it allows for withholding of active use ``by 
agreement.'' These comments urged that we remove the phrase ``or by 
agreement'' from the definition, so that the definition would read: 
``Suspension means the withholding from active use, through a decision 
issued by the authorized officer, of part or all of the grazing 
preference specified in a grazing permit or lease.'' They stated that 
allowing suspensions by agreement could allow the creation of de facto 
conservation use permits, contrary to the decision of the Federal 
Court, and would short circuit the grazing decision process under 
subpart 4160.
    We have not adopted the recommendation to change the definition of 
``suspension'' in the proposed regulation. The phrase ``or by 
agreement'' was in the definition prior to the 1995 revision of the 
regulations. It is in the definition partly to recognize that the 
permittee may not wish to contest the suspension. The definition also 
supports our goal of using cooperation with permittees and lessees to 
achieve rangeland management objectives. When an action that meets the 
objective of achieving rangeland management objectives is implemented 
through agreement with affected permittees or lessees, the action 
carries no less weight than when it is implemented through decision. 
The implementation of an action to place active use in suspension, for 
example, still requires sound rationale, whether implemented through 
agreement or decision, and may be appealed by parties with standing to 
appeal.
    Another comment stated that BLM should implement a process to 
ensure that suspended use is reinstated to active use. It stated that 
the current regulations deprive permittees of this credit, 
unjustifiably eliminating base property qualifications that are kept on 
the books in suspended status at the time of permit renewal based on an 
allotment evaluation. The comment went on to suggest that, as range 
conditions improve, BLM should reinstate the active use that is 
presently in suspended use.
    BLM agrees that it is important to keep track of grazing use that 
has been reduced, and the final rule provides at section 4110.3-2(b) 
that BLM will place such reductions in suspension. If range conditions 
improve in the future and BLM finds there is additional forage for 
livestock on a sustained yield basis, under the final rule at section 
4110.3-1(b), such additional forage will be applied first to reduce or 
eliminate any suspensions. There is no need to change the final rule in 
response to this comment.
    Some comments stated that BLM should not change the definition of 
suspended use, but rather retain the one in the 1995 regulations. BLM 
has not adopted the recommendation to retain the 1995 definition of 
``suspension.'' The proposed and final rules change the definition to 
be consistent with the restored definition of ``preference.''
Section 4100.0-5 Definitions--``Temporary Nonuse''
    We amended the definition of ``temporary nonuse'' to mean that 
portion of active use that BLM allows a permittee or lessee not to use.
    Several comments expressed general support for the changes in the 
temporary nonuse provisions. Various other comments suggested 
amendments for the definition of ``temporary nonuse:'
    (1) To include nonuse that is required by BLM in response to fire, 
drought, or in other cases where range restoration or improvement is 
necessary;
    (2) To provide that BLM will manage decreases in livestock numbers 
by temporary nonuse rather than suspension; and
    (3) To require permittees and lessees to apply for temporary nonuse 
on an annual basis, in order to make the definition consistent with 
section 4130.4(d)(1).
    The first two suggestions are related. Some grazing permittees and 
lessees do not want to have authorizations suspended for drought, fire, 
and range restoration. Although no reason is given in the comments, 
apparently these grazing operators consider a suspension tantamount to 
a penalty. However, there is no stigma associated with this kind of 
suspension. Nonuse to allow fire rehabilitation or drought recovery at 
the request of BLM is properly achieved by suspension. Also, having a 
suspension imposed by BLM in this situation eliminates the paperwork 
burden associated with applying for temporary nonuse.
    BLM cannot adopt the third suggestion. Definitions are in the 
regulations to describe what a term means. The definition is not the 
proper place to describe how to implement it. Section 4130.4 gives 
sufficient information about the implementation of temporary nonuse; it 
is unnecessary to repeat it in the definition.
    One comment from a state fish and game agency opposed the 
definition of temporary nonuse, relating it to its opposition to the 
proposed definition of ``preference.'' The agency opposed 
institutionalizing a stocking number in grazing permits. Instead, the 
comment supported the definition in the current regulations, stating 
that forage allocations should be based on available forage.
    We have not adopted the comment in the final rule. Changes in the 
definition of ``temporary nonuse'' proposed in the rule are necessary 
to implement the ruling of the 10th Circuit Court in Public Lands 
Council v. Babbitt, supra, on conservation use. The interpretation in 
the comment of the relationship between temporary nonuse and grazing 
preference is incorrect. The proposed rule defines ``grazing 
preference'' or ``preference'' as the total number of AUMs on public 
lands apportioned and attached to base property owned or controlled by 
a permittee, lessee, or an applicant for a permit or lease. A permit or 
lease is a long-term (up to 10 years) authorization to graze livestock 
on public land and is based on available forage. BLM may authorize 
temporary nonuse, on the other hand, for a short

[[Page 39444]]

term, one year, when applied for by a permittee or lessee, for a 
variety of reasons.
    One comment stated that BLM should amend the rule with regard to 
temporary nonuse to make the negative effects on grazing permittees as 
predicted in the DEIS positive.
    We believe the long-term effects of the rule will be favorable to 
the health of the range. BLM is free to disapprove nonuse if resource 
conditions do not warrant approval of temporary nonuse for conservation 
reasons, and to allow temporary use by other operators if the nonuse is 
for personal or business reasons. The regulations contain checks and 
balances to minimize adverse effects.
Section 4100.0-5 Other Comments and Recommendations on Definitions
    Some comments urged BLM to clarify the regulations by changing the 
term ``actual use'' to ``actual livestock use,'' and ``actual use 
report'' to ``actual livestock use report,'' because the terms relate 
only to use by livestock.
    The definitions of ``actual use'' and ``actual use report'' in the 
final regulation remain unchanged. The current definition states that 
actual use relates to livestock use. Incorporating the suggestion would 
require adjusting the regulations in a number of areas in the 
regulations. We believe that such changes would not add clarity to the 
regulations.
    One comment stated that BLM should revise the grazing rules to make 
consistent the concepts of active use, monitoring, rangeland studies, 
livestock carrying capacity and the term ``forage available on a 
sustained yield basis.'' The comment contended that currently they lack 
consistency among themselves and throughout the existing rules and the 
proposed rules.
    We believe that these terms are used consistently with one another 
in the grazing regulations.
    Many comments suggested that we define the term ``affected 
interest.'' Some provided suggested language: ``Affected interest means 
a permittee, lessee, allotment owner, or property owner who is directly 
and materially affected by BLM action related to livestock grazing 
plans or actions related to those plans' and stated that under Section 
8 of PRIA, BLM has responsibility to directly consult, coordinate, and 
cooperate with any allottee, lessee, and landowner in a situation where 
they would be directly and materially affected by a BLM action or 
proposed action. Another comment asked BLM to define the term 
``affected person, interest, or party'' and clearly limit those who are 
considered ``affected'' to people who would directly suffer economic 
and cultural loss. The comment said that this would prevent those who 
would use legal processes to impair or stop prudent land management 
from having standing to bring suit. Another said that such a definition 
would be consistent with the difference between a member of the public 
who enjoys certain opportunities for public involvement in BLM land use 
plans as part of the NEPA process, and the permittee, lessee, or 
landowner who is assured of ``careful and considered consultation, 
cooperation, and coordination''.
    One comment stated that the term ``affected interest'' was too 
vague and could be misused, and suggested that BLM should refer instead 
specifically to the permittee or the landowner, as the case might be.
    The terms ``affected person,'' ``affected interest,'' and 
``affected party'' do not appear in part 4100. There are references to 
``affected applicant, permittee or lessee, and any agent and lienholder 
of record,'' ``affected permittees or lessees, and the State having 
lands or responsibility for managing resources within the area'' and 
other references to affected parties such as ``landowners.'' In these 
cases, the definition of the word ``affected'' is clearly evident, as 
pertaining to those persons whose interest is directly affected by the 
provision of the regulation. There is therefore no need to provide a 
separate definition for the term ``affected interest'' or any of its 
variants.
    We have not adopted the recommendation to replace the term 
``interested public'' in the regulations with the term ``affected 
interest'' and to restrict its definition to include only an allotment 
owner, lessee, or landowner that is directly and materially affected by 
a BLM action related to livestock grazing plans or actions related to 
those plans. Although the sections of PRIA that address consultation 
and coordination (sections 5 and 8) list those entities that BLM should 
include in the decision process on allocation of range improvement 
funds and in the formulation of allotment management plans, they do not 
limit public involvement during the process leading to such BLM 
decisions. To involve all those who may be interested in participating 
in the decision process is not in conflict with the portions of PRIA 
that address consultation and coordination. As noted elsewhere, the 
final rule does affect the role of the interested public and removes 
the consultation requirement from several day-to-day management level 
decisions. The effect of these changes is that the interested public, 
permittees, and lessees all have opportunities to participate under 
Section 202 of FLPMA (43 U.S.C. 1712) in decisions on land use plans 
and allotment management plans that form part of the basis for grazing 
management decisions, while some day-to-day management decisions 
require consultation opportunities for permittees and lessees but not 
with the interested public. BLM believes that this best balances the 
legitimate need for wide public participation in the management of 
public lands with the need for efficiency in day-to-day matters that 
directly affect permittees and lessees.
    One comment urged BLM to revise the definition of ``animal unit 
month,'' stating that the existing definition is outdated and causes 
confusion. It suggested that the definition should be based on 
livestock size and class, since these vary.
    We have not adopted this comment in the final rule. The suggestion 
to define an AUM in terms of livestock size and class would make 
implementation of the regulation prohibitively complex and costly.
    One comment stated that BLM should define the term ``authorized 
use'' as it was defined by the Interior Board of Land Appeals in New 
Burlington Group Grazing Association, IBLA 2003-324: ``The level of 
AUMs granted in the permittee's grazing permit.'' According to the 
comment, this would make it clear that authorized use is not the 
previous year's actual use, an interpretation rejected by IBLA in , and 
would avoid confusion as to what use is authorized.
    We have not adopted the recommendation in the comment, since the 
term does not appear in this form in these regulations. Terms similar 
to ``authorized use'' that appear in these regulations include 
``preference'' or ``grazing preference'' and ``active use,'' all of 
which are defined in section 4100.0-5. These definitions and the use of 
these terms in the regulations address the concern in the comment that 
the regulations should have a term pertaining to the number of AUMs 
authorized by a permit or lease.
    One comment asked BLM to define the terms ``authorization'' and 
``authorized'' to ensure clarity of application of these terms in the 
regulations. Another comment stated that, to end current confusion and 
ambiguity regarding meaning of the terms ``authorization'' and 
``authorized'' in the grazing regulations, BLM should include a 
definition of ``authorized'' in

[[Page 39445]]

the regulations as ``the level of AUMs granted by the permittee's term 
grazing permit,'' or, as ``all AUM's included within the permittee's 
term grazing permit.''
    BLM does not agree that it should define the terms 
``authorization'' and ``authorized'' as the comment suggested. In the 
absence of a definition in the regulations, we apply the common 
dictionary definition and meaning. This is true for terms like 
``authorization'' and ``authorized,'' whose dictionary definition is 
sufficient. The term is used throughout the regulations in the sense of 
to ``allow'' or ``grant permission,'' and in areas that do not directly 
relate to forage amounts, such as when BLM authorizes construction of a 
range improvement through a cooperative range improvement agreement. 
Moreover, BLM is not limited to authorizing grazing through the use of 
term permits and leases. We may also authorize grazing on a temporary 
and nonrenewable basis where the applicant is not a preference holder.
    The final rule states unambiguously at Sec.  4130.2(a) and through 
the definitions of ``grazing permit'' and ``grazing lease'' at Sec.  
4100.0-5 that the grazing permit or lease is the document that 
authorizes grazing use on the public lands and other BLM-administered 
lands that are designated in land use plans as available for livestock 
grazing. Consistent with statutory language in Sections 3 and 15 of the 
TGA, and with the use of the term ``permit or lease'' in Section 402 of 
FLPMA, BLM intends that the grazing permit or lease, which specifies 
the terms and conditions of grazing use allowed by the permit or lease 
during its term, be relied upon as the document that authorizes grazing 
use.
    In the proposed rule, we removed the term ``annual grazing 
authorization'' from section 4140.1(b)(1)(i) (which had prohibited 
grazing without a permit or lease and an ``annual grazing 
authorization''). We found that this term was confusing because it 
implied that there was some other document besides a permit or lease 
(or in limited circumstances, an exchange of use agreement) that 
authorizes public lands grazing.
    The grazing regulations provide some flexibility to make minor 
adjustments in the grazing use within the terms and conditions of the 
permit or lease. The amount of forage consumed in any one year need not 
exactly reflect the amount of forage that could be allowed to be 
consumed as shown on the authorizing permit or lease. Such flexibility 
is necessary to be responsive to forage conditions that can vary from 
year to year due to weather conditions or as a result of emergencies 
such as wildfire, or to be responsive to personal or business needs of 
the livestock operator.
    BLM collects fees for use authorized by the grazing permit or 
lease, as may be adjusted. The use shown on the grazing fee billing 
becomes a part of the permit or lease for the period of grazing use 
that is specified by the grazing fee billing.
    One comment urged BLM to define ``livestock carrying capacity'' in 
terms that address and meet ecological needs, including plant 
productivity, soil nutrient cycles, ground cover, plant community 
composition, wildlife habitat function, and habitat resilience.
    The current definition of ``livestock carrying capacity'' found in 
the BLM grazing regulations accords with the commonly accepted 
definition of this term and reads: ``Livestock carrying capacity means 
the maximum stocking rate possible without inducing damage to 
vegetation or related resources. It may vary from year to year on the 
same area due to fluctuating forage production.'' ``Related resources'' 
include the ecological needs of rangelands.
    One comment urged BLM to clarify the regulations by adding a 
definition of ``forage available on a sustained yield basis,'' as 
follows: ``Forage available on a sustained yield basis means the 
average ``livestock carrying capacity'' as determined by monitoring 
over time.''
    We considered the definition suggested in the comment and 
determined that it would not add clarity to the regulations. This 
definition would equate an amount of forage with livestock carrying 
capacity. ``Livestock carrying capacity'' is defined by the regulations 
in terms of a ``stocking rate.'' ``Stocking rate'' is a standard term 
describing a number of animals, over time, per unit area. Ultimately, 
were the suggestion to be adopted, the result would be to make an 
amount of forage the equivalent of a number of animals over time per 
unit area. To put it simply, ``forage available on a sustained yield 
basis'' is not the same thing as a number of animals per unit area per 
time period. Also, adopting this suggestion would create an internal 
conflict with section 4100.0-8, which states that land use plans 
establish allowable resource uses and program constraints. In other 
words, BLM may consider factors other than the results of monitoring in 
determining livestock carrying capacity.
    Comments suggested that BLM should include in the definitions of 
``monitoring'' and ``rangeland studies'' the requirement to apply BLM-
approved analytical methodology. One comment criticized BLM's current 
practice of providing guidance for monitoring through manuals and 
handbooks, and not through regulations. Another comment asked for 
clarification that monitoring is not mere observation but must occur 
through rangeland studies set forth in approved BLM manuals. It 
concluded that this monitoring should include data collected on actual 
use, utilization, climatic conditions, special events, and trend. 
Others urged that the rule ensure that monitoring will occur through 
rangeland studies, as set forth in approved BLM Manuals, and not by the 
``whims'' of the authorized officer.
    We have not changed the regulations in response to these comments. 
The BLM Manual, handbooks, and other BLM internal instruction materials 
provide adequate opportunity for guidance on monitoring and rangeland 
studies, and these materials are more easily updated than regulations. 
For example, subsequent to implementation of the 1995 rules, BLM has 
been part of an interagency team that has developed and improved a 
method for assessing indicators of rangeland health. After 4 years of 
use, this Technical Reference has been modified to incorporate 
quantitative measures with the qualitative techniques. We have also 
been developing techniques for monitoring macro-invertebrates as 
indicators of water quality and have been researching the relationship 
between upland range condition and macro-invertebrate populations. The 
comments generally agree with this approach, and mainly discuss how we 
should address monitoring in our internal guidance. We will consider 
these comments when we review our Manual provisions and other internal 
guidance.
    Comments stated that BLM should restrict monitoring to rangeland 
studies. They suggested that ``monitoring'' should be defined as ``the 
orderly collection of rangeland studies data to evaluate ``* * *,'' 
stating that this would contrast monitoring with observations and 
indicate that only the collection of ``rangeland studies'' will be 
considered valid monitoring. Further, they stated, ``rangeland 
studies'' should be defined as ``any study methods as set forth in 
approved BLM manuals for collecting data on actual use, utilization, 
climatic conditions, other special events, and trend to determine if 
management objectives are being met.'' The comment's position was that 
this will ensure that management decisions are based on sound 
information.
    We considered the suggested definitions. However, we determined 
that BLM needs flexibility to use site-

[[Page 39446]]

specific methods in addition to those monitoring methods set forth in 
Manual guidance. This flexibility will allow BLM to employ techniques 
that meet local needs and that we can develop in cooperation with other 
agencies and partners.
    One comment stated that BLM should define the term ``multiple use'' 
to include outdoor recreational activities, such as hiking, hunting, 
fishing, and other outdoor activities, because FLPMA provides authority 
for managing lands on the basis of multiple use.
    Although the comment correctly interprets outdoor recreation 
activities to be included in any definition of multiple use, we have 
not adopted the recommendation to define the term ``multiple use'' in 
the regulations on livestock grazing. The term ``multiple use'' is 
defined in FLPMA and the BLM planning regulations (43 CFR 1600.0-5) and 
needs no further definition in these regulations.
    One comment suggested that BLM should define the following: 
``Affiliate,'' ``terms and conditions,'' ``cooperator,'' ``qualified 
applicant,'' ``community-based decision making,'' and ``court of 
competent jurisdiction.''
    BLM does not believe this is needed. The term ``affiliate'' is 
defined in the current regulations and remains unchanged. 
Qualifications for holding a grazing permit or lease are set forth at 
subpart 4110 of the grazing regulations, and the proposed amendments 
simply reorder the mandatory qualifications provision found at section 
4110.1. The meanings of the other terms, ``terms and conditions,'' 
``cooperator,'' ``community-based decision making,'' and ``court of 
competent jurisdiction'' are clear from their usage and the context in 
which they appear.
Section 4100.0-9 Information Collection
    This section is in the regulations for information purposes. It 
recites the fact that the Office of Management and Budget has approved 
BLM's collection of information to enable the authorized officer to 
determine whether to approve an application to use public lands for 
grazing or other purposes. No public comments addressed this section, 
and we have made no changes in the final rule.

Subpart 4110--Qualifications and Preference

Section 4110.1 Mandatory Qualifications
    We amended this section by moving the provisions containing BLM's 
procedures for determining whether an applicant has a satisfactory 
record of performance to section 4130.1-1, which addresses filing 
applications, and adding a cross-reference to that section. No public 
comments addressed this rearrangement. We will discuss the comments 
that addressed the procedures themselves when we discuss section 
4130.1-1.
    Comments urged BLM to add a requirement that permittees ``must be 
engaged in the livestock business,'' stating that this requirement is 
in the TGA, but not in the regulations. The comment went on to say that 
addition of that statutory requirement would ensure that a permittee 
has an economic motive to graze livestock on the permitted allotment 
and is not merely acquiring a permit in order to retire it.
    We have not adopted this comment in the final rule. Although those 
engaged in the livestock business are preferred recipients of permits, 
being engaged in the livestock business is not a statutory prerequisite 
for permit eligibility. Section 3 of the TGA states that grazing 
permits shall be issued only to U.S. citizens or those who have filed a 
valid declaration to become a U.S. citizen, or to corporations, groups, 
or associations authorized to conduct business under the laws of the 
states within which the grazing district is located. Section 3 of the 
Act also states that ``[p]reference shall be given in the issuance of 
grazing permits to those within or near a [grazing] district who are 
landowners engaged in the livestock business, bona fide occupants or 
settlers, or owners of water or water rights, as may be necessary to 
permit the proper use of lands, water or water rights owned, occupied 
or leased by them * * *.'' For lands outside grazing districts, Section 
15 of the TGA provides that the Secretary may issue leases for grazing 
purposes to nearby landowners and does not require that before they can 
receive a lease, they must be engaged in the livestock business. BLM 
requires that to receive and retain preference for a term grazing 
permit or lease, one must own or lease land or water that serves or is 
capable of serving as a base for livestock operations and either be a 
citizen or have filed a valid petition to become a citizen, or be a 
group or corporation authorized to conduct business in the state where 
the permit or lease is sought, and must have a satisfactory record of 
performance as defined by the regulations.
    One comment urged that the regulations should require that to hold 
a grazing permit or lease, one must own livestock, stating that this is 
a clear requirement of the Taylor Grazing Act as most recently 
clarified by the Supreme Court in Public Lands Council v. Babbitt, 
supra.
    We have not adopted this suggestion in the final rule. The Supreme 
Court upheld the deletion of the phrase ``engaged in the livestock 
business'' from the regulation enumerating ``mandatory qualifications'' 
for permittees and lessees. Our approach is consistent with the TGA, 
which directs that ``[p]reference shall be given to landowners engaged 
in the livestock business'' (43 U.S.C. 315b). Adopting the comment 
could unduly interfere with a permittee's or lessee's ability to 
pasture leased livestock on the BLM allotment where they are permitted 
to graze. BLM has long allowed a permittee or lessee to ``control,'' 
rather than own, the livestock grazing under their permit or lease. It 
also is common in the livestock industry that livestock are routinely 
bought and resold during the course of a year, and it may happen during 
a typical year that a permittee may not, in fact, own livestock on a 
particular date. It would be impractical for BLM to track, much less 
enforce, a requirement that, to maintain status as a BLM permittee or 
lessee, one must maintain ownership of at least one cow, sheep, goat, 
horse, or burro throughout the entire year.
    In Public Lands Council v. Babbitt, supra, where the plaintiff 
objected to BLM's 1995 removal from the grazing regulations the 
requirement that one must be ``engaged in the livestock business'' to 
qualify for a grazing permit or lease, the Supreme Court found that the 
TGA continues to limit the Secretary's authorization to issue grazing 
permits to bona fide settlers, residents, and other stock owners and 
that BLM need not repeat that requirement in their regulations for it 
to remain a valid requirement. However, the Court also looked behind 
the issue at the plaintiff's concern that with the removal of the 
requirement that an applicant must be ``engaged in the livestock 
business,'' entities could acquire permits specifically to not make use 
of them (ostensibly for conservation or speculative purposes), thereby 
excluding others who could make use of the range. The Court pointed out 
that, under the regulations, a permit holder is expected to make 
substantial use of the permitted use set forth in the grazing permit. 
These provisions remain in the final rule and provide that permittees 
or lessees may lose their grazing privileges if they fail to make 
substantial use of them, as authorized, for two consecutive fee years. 
The phrase, ``as authorized,'' is included to make clear that BLM-
approved (i.e. authorized) nonuse of grazing privileges, or privileges 
that

[[Page 39447]]

BLM has suspended, are not at risk of loss for failure to use.
    One comment urged BLM to address the concept of grazing 
associations, explain what they are, and examine if all members of an 
association must own base property.
    A grazing association is a group of ranchers organized into an 
association for the common benefit and welfare of the members. Grazing 
associations are organized under the laws of the state where they are 
located. Under section 4110.1(a)(2), a grazing association may apply 
and qualify for grazing use on public lands if all members of the 
association own or control land or water base property.
    One comment stated that BLM should not allow large corporations to 
acquire grazing permits but instead reserve permits for local families 
who have a tradition of farming and ranching in the area.
    It is not within BLM's authority to adopt this suggestion. The TGA 
authorizes the Secretary to issue grazing permits to ``corporations 
authorized to conduct business under the laws of the State in which the 
grazing district is located.'' The TGA does not place limits on which 
corporations may be issued permits based on their size.
    One comment asked BLM to clarify whether state government agencies 
are qualified to hold public land grazing permits.
    Section 4110.1 on mandatory qualifications states that to qualify 
for grazing use on public lands, one must own land or water base 
property and must be a citizen or have filed a declaration of intention 
to become a citizen or petition for naturalization, or be a group or 
association authorized to conduct business in the state where the 
grazing use is sought, all members of which are citizens or have filed 
petitions for citizenship or naturalization, or be a corporation 
authorized to conduct business in the state in which the grazing use is 
sought. Although state agencies may acquire base property, they are not 
a citizen, group, association, or corporation authorized to conduct 
business in the state in which the grazing use is sought. Therefore, 
state agencies are not qualified under the grazing regulations for 
grazing use on public lands. Thus, unless the exception for base 
property acquisition by an ``unqualified transferee'' in the 
circumstances described at section 4110.2-2(e) applies (which provides 
for issuing a permit or lease to an unqualified transferee for up to 
two years when they acquire base property by ``operation of law or 
testamentary disposition''), state agencies may not be granted a 
grazing permit or lease.
    BLM recognizes that at times a state agency, typically the state 
wildlife agency, will acquire base property for various purposes, may 
apply for the associated grazing preference on public lands, and may 
express their wishes that the grazing preference be reallocated to 
wildlife, or express an interest to limit use of the grazing preference 
and permit to grazing treatments that are, for example, necessary for 
maintenance or improvement of habitat for wildlife. BLM will cooperate 
with state agencies wherever possible to pursue common goals. However, 
BLM land use plans set forth management goals and objectives and the 
ways and means available for achieving those objectives. Where state 
agencies have acquired base property and do not wish to use the public 
land grazing preference associated with that property in conformance to 
the governing land use plan, BLM may work with the state agency, 
affected permittees or lessees, and any interested public to consider 
options regarding the management of affected public lands. This could 
include reallocating the forage to another permittee or lessee. It is 
not within BLM's authority to issue term grazing permits to state 
agencies, even if they own livestock, because they do not meet 
mandatory requirements to qualify for grazing use on public lands. 
This, however, does not preclude other arrangements such as where the 
state agency may form a separate corporation chartered by the state for 
purposes of holding and managing a public lands grazing permit.
    One comment suggested that we amend section 4130.1-1 to require 
that BLM offer permittees and lessees a new permit or lease 150 days in 
advance of their permit or lease expiration date, and suggested that we 
amend section 4110.1(b) to refer to this proposed requirement.
    We have not adopted this comment in the final rule. Permit renewal 
time frames are best addressed in BLM's policy guidance and the BLM 
Manual rather than in regulations. Also, section 4110.1 deals only with 
qualifications of applicants, and the only necessary cross-reference is 
to provisions in section 4130.1-1 on determining satisfactory 
performance, which is a mandatory qualification. Other procedural 
matters are not relevant to section 4110.1.
    Finally, one comment urged BLM to prohibit the transfer of 
preference to groups seeking to eliminate grazing.
    BLM has not changed its regulations in response to this comment. In 
order to qualify for grazing use on public lands, one must still meet 
the requirements of section 4110.1. Other regulatory provisions allow 
BLM to cancel preference should a permittee or lessee fail to make 
grazing use as authorized.
Section 4110.2-1 Base Property
    In this section, we proposed an editorial change, dividing 
paragraph (c) of the existing regulations into two parts, designated 
(c) and (d), since the paragraph addressed two subjects: the 
requirement to provide a legal description of the base property, and 
the sufficiency of water as base property. No public comments addressed 
this section, and we have made no changes in the final rule.
Section 4110.2-2 Specifying Grazing Preference
    We amended this section in the proposed rule to replace the term 
``permitted use'' with the term ``grazing preference'' or 
``preference.'' We discuss comments on the change in terminology under 
the definitions section. No comments addressed this section as such, 
and we have made no changes in the final rule.
    One comment on this section urged BLM to give preference to buffalo 
ranchers in issuing grazing permits because use by buffalo pre-dates 
use by cattle on the range, and they therefore have right by history to 
receive first consideration for grazing use. Another comment stated 
that BLM should let ranchers decide how many livestock should be grazed 
and adjusted based on their judgment because most ranchers are good 
stewards of the land. Another comment urged BLM not to make changes in 
preference solely on the basis of forage allocations in land use plans, 
stating that monitoring must be used to justify changes in authorized 
levels of grazing use.
    We have not changed the final rule in response to these comments. 
BLM has no authority to give priority to buffalo ranchers when issuing 
grazing permits or leases. The TGA requires that when issuing grazing 
permits, the Secretary must give preference to landowners engaged in 
the livestock business, bona fide occupants or settlers, or owners of 
water or water rights, as may be necessary to permit the proper use of 
lands, water, or water rights owned, occupied, or leased by them. 
(Grazing permits authorize grazing use on lands within grazing 
districts established under Section 1 of the Act.) The Act also 
requires that when issuing grazing leases, the Secretary must give 
preference to owners, homesteaders, lessees, or other lawful occupants 
of lands contiguous to the public lands

[[Page 39448]]

available for lease, to the extent necessary to permit proper use of 
such contiguous lands, with certain exceptions. (Grazing leases 
authorize grazing on public lands outside grazing districts.) 
Therefore, under the TGA, the kind of animal an applicant for a permit 
or lease wishes to graze on public lands has no bearing on whether the 
applicant has or will be granted preference for a grazing permit or 
lease. BLM may issue permits to graze privately owned or controlled 
buffalo under the regulations that provide for ``Special Grazing 
Permits or Leases'' for indigenous animals (section 4130.6-4), so long 
as the use is consistent with multiple use objectives expressed in land 
use plans.
    Both Sections 3 and 15 of the TGA and Sections 402(d) and (e) of 
FLPMA entrust to the Secretary of Interior the responsibility for 
determining and adjusting livestock numbers on public lands. The 
Secretary has delegated this responsibility to BLM. BLM may not 
delegate this responsibility to the ranchers. BLM works cooperatively 
with ranchers, the state having lands or responsibility for managing 
resources, and the interested public in determining terms and 
conditions of grazing permits and leases, including the number of 
livestock to be grazed. Permits and leases contain terms and conditions 
to ensure that grazing occurs in conformance to land use plans, which 
are developed with public involvement.
    The regulations at section 4110.2-2 do not provide for the 
establishment of preference solely on the basis of the forage 
allocation contained in the land use plan. Rather, they state that, 
alternatively, preference may be established in an activity plan or by 
decision of the authorized officer under section 4110.3-3. Some land 
use plans determined a forage allocation for livestock on an area-wide 
basis and apportioned that allocation among qualified applicants. Other 
land use plans simply recognized previous allocations and stated that 
future adjustments to these allocations would be guided by the multiple 
use objectives contained in the land use plan, be implemented by 
grazing decisions, and be supported by monitoring information.
Section 4110.2-3 Transfer of Grazing Preference
    The proposed rule made editorial changes to this section to conform 
the rule to the definition of ``grazing preference.''
    A comment on this section suggested that before issuing a permit or 
lease that arises from transfer of preference, BLM should conduct 
capacity surveys, condition assessments, evaluate monitoring data, and 
complete NEPA compliance documentation so that the terms and conditions 
of the permit or lease that we issue reflects current allotment 
conditions.
    BLM does not control when or for what allotments it will receive 
applications to transfer grazing preference and issue a permit arising 
from that transfer. By the end of fiscal year 2003, BLM had assessed 
about 40 percent of its allotments for achievement of standards of 
rangeland health. In these areas, BLM reviews the application in light 
of the existing assessment and NEPA compliance documentation, and 
issues the permit or lease with appropriate terms and conditions. BLM 
continues to prioritize its data gathering needs based on known 
resource management issues. If BLM does not conduct an assessment of 
rangeland health and otherwise ``fully process'' a permit or lease 
application that accompanies a preference transfer, it includes terms 
and conditions on the newly issued permit or lease to ensure 
achievement of the standards and conformance to appropriate guidelines. 
These permit or lease terms and conditions include a statement that, if 
a future assessment results in a determination that changes are 
necessary in order to comply with the standards and guidelines, BLM 
will revise the permit or lease terms and conditions to reflect the 
needed changes.
Section 4110.2-4 Allotments
    In the proposed rule, we removed the requirement that BLM consult 
with the interested public before making an allotment boundary 
adjustment because it is primarily an administrative matter that we 
implement by decision or agreement following a NEPA analysis of the 
action. This means that, under the final rule, allotment boundary 
changes will no longer trigger required consultation, cooperation, and 
coordination with the interested public. This change is intended to 
improve the administrative efficiency of grazing management.
    Many comments expressed opposition to any reduction in the role of 
the interested public, but relatively few comments addressed this 
particular function. One comment stated that this change would affect 
the public role in NEPA analysis of boundary changes. That is 
incorrect. The public role under NEPA is unaffected by this rule 
change.
    One comment stated that boundary adjustments could affect native 
plant populations and requested continued public involvement. 
Environmental issues such as impacts on native plants are best 
addressed through the NEPA process, which is unaffected by this change. 
BLM has found that much of the required consultation with the 
interested public is duplicative of these other processes and often 
delays routine, non-controversial decisions.
    In BLM's view, the NEPA process, informal consultations and the 
ability to protest before a decision is final provide adequate 
mechanisms to identify legitimate public concerns over boundary 
changes. Thus, no changes have been made in the final rule.
    One comment on this section suggested that BLM should consult with 
base property lien holders before adjusting allotment boundaries, and 
should remove its authority to adjust allotment boundaries by decision 
so that the permittee or lessee has control over allotment boundaries 
rather than BLM.
    We have not adopted these comments in the final rule. Under section 
4110.2-4, BLM will consult with affected permittees or lessees before 
adjusting allotment boundaries. Should permittees or lessees wish to 
consult regarding boundary adjustment proposals with those holding 
liens on their base properties, they may do so at their option. It is 
necessary for BLM to retain authority to adjust allotment boundaries by 
decision for those situations where all affected parties cannot reach 
consensus regarding an allotment boundary adjustment.
Section 4110.3 Changes in Grazing Preference
    In the proposed rule, we removed the term ``permitted use'' 
wherever it occurred in this section and replaced it with the term 
``grazing preference'' for the reasons explained previously. We also 
added a third paragraph to provide that our NEPA documentation 
addressing changes in grazing preference would include consideration of 
the effects of changes in grazing preference on relevant social, 
economic, and cultural factors.
    Numerous comments addressed both aspects of this section.
    One comment stated that BLM should only consider changes in 
preference when there has been a permanent change in the number of AUMs 
available for attachment to base property. The comment asserted that, 
because AUMs of preference were established through formal 
adjudication, it would be inappropriate for BLM to change grazing 
preference as needed to manage, maintain, or improve rangeland 
productivity, to assist in restoring ecosystems to properly functioning 
condition, to conform to land use plans

[[Page 39449]]

or activity plans, or to comply with the provisions of subpart 4180. 
Another comment stated that is was important for permittees and lessees 
to retain preference as to potential AUMs that have been suspended, so 
that when productivity improves the AUMs are awarded to those who own 
or control the base property to which the suspended preference is 
attached. Yet another comment stated that BLM should make clear in this 
section that any changes to grazing preference must be supported by 
monitoring that is conducted using BLM-approved Manual procedures.
    BLM rejects the contention that because a forage allocation 
reflected by an existing preference may have at its roots a pre-FLPMA 
formal adjudication, it would be inappropriate to change it when needed 
to improve rangeland productivity, restore ecosystems to properly 
functioning condition, conform to land use plans or activity plans, or 
comply with the provisions of subpart 4180. As pointed out by the 
Supreme Court in Public Lands Council v. Babbitt, supra, ``the 
Secretary [of the Interior] has since 1976 had the authority to use 
land use plans to determine the amount of permissible grazing, 43 
U.S.C. Sec.  1712.'' Further discussion of the role of FLPMA-mandated 
land use plans with respect to BLM's statutory multiple use mission, 
including the mission to provide for the orderly administration of 
livestock grazing on public lands under the TGA and to improve 
rangeland conditions, is included in the previous section that 
addresses removing the definition of ``permitted use'' and redefining 
``preference'' to include a forage allocation element.
    The final regulations in section 4110.3-2(b) provide that, when BLM 
decreases active use on an allotment, we will put the reduction in 
suspension and it will remain associated with base property to which 
the preference for use in the allotment is attached. This will ensure 
that the preference holder will be given first consideration for use of 
the additional forage as provided at section 4110.3-1(b)(1). BLM 
considered the comment that urged requiring that changes in grazing 
preference be supported by monitoring methods contained in BLM Manuals 
and determined that that BLM needs flexibility to use site-specific 
methods in addition to those monitoring methods set forth in Manual 
guidance. This flexibility will allow BLM to use techniques that meet 
local needs and that BLM may develop in cooperation with other agencies 
and partners.
    We received several comments that opposed including in this section 
language providing that before BLM changes grazing preference, we will 
analyze, and if appropriate, document relevant social, economic, and 
cultural effects of this action. These comments urged BLM to abandon 
the provision to include social, economic, and cultural considerations 
in its grazing decisions. The reasons provided by these comments were: 
neither NEPA, FLPMA, nor PRIA authorize BLM to adopt rules to protect 
the ``custom and culture'' of the western cowboy or rancher, protect 
ways of life, or insulate the public land livestock industry from 
economic impacts, nor does NEPA authorize BLM to ignore the resource 
protection requirements of FLPMA and PRIA; BLM should apply an even-
handed administration of existing laws and regulations rather than try 
to preserve a way of life and rural character of ranching communities, 
which the agency has no authority to do; open space and rural character 
are best preserved through local zoning and tax policies; BLM field 
managers have routinely considered social, economic, and cultural 
effects, despite the fact that NEPA does not require analysis of these 
considerations except in connection with preparing an EIS, which is why 
rangeland conditions are still unsatisfactory; it sets the agency up 
for failure, since no permittee would be willing to share the financial 
aspects of their operation with BLM; NEPA already allows for 
consideration of such effects into environmental analyses, so this 
proposal is duplicative and unnecessary; BLM's policy strategy is based 
on a skewed interpretation of the law; NEPA does not require that 
grazing decisions incorporate analyses of social, economic, and 
cultural impacts when preparing environmental assessments (EA); Federal 
law directs that the public lands be managed for multiple uses, of 
which grazing is only one; it would result in management that benefits 
ranchers over the short term and damages the land over the long term; 
and public land grazing is not very cost effective to begin with, and 
this provision would perpetuate that.
    We have not adopted the suggestion to abandon the requirement for 
BLM managers to analyze and, if appropriate, document their 
consideration of relevant social, economic, and cultural factors before 
changing grazing preference. BLM is obligated under 40 CFR 1508.8(b) to 
assess the consequences, i.e., impacts or effects, of BLM actions, 
authorizations, and undertakings on * * * ``ecological * * * aesthetic, 
historic, cultural, economic, social, or health * * *.'' aspects of the 
human environment. CEQ regulations at 40 CFR 1508.9(b) also direct that 
Environmental Assessments include brief discussions of the impacts of 
the proposed action and alternatives. The provision at section 4110.3 
is consistent with this direction and intent of NEPA. Consideration of 
these factors in the NEPA context does not result in a particular 
outcome, but ensures from a procedural perspective that the information 
is considered and, if appropriate, documented in the associated NEPA 
analysis.
    Other comments urged BLM to include in any future direction, 
guidance, or regulation formulated with respect to social, economic, or 
cultural considerations, an emphasis on the requirement for a 
comprehensive and thorough assessment of the impacts on multiple 
resource values of the public rangelands, not just grazing impacts, 
including: The environmental, educational, aesthetic, cultural, 
recreational, economic and scientific value to the nation of fish and 
wildlife; the relevant social, economic and cultural effects of 
livestock overgrazing on recreational users, municipal water users, 
threatened and endangered species management, the need and cost for 
erosion control, threatened and endangered species recovery, and 
restoration and rehabilitation of public lands, watersheds, and 
wildlife habitat damaged by livestock grazing; the economic, social, 
and cultural considerations of the vast majority of the people in this 
country who view public lands as a place to produce wildlife, for 
recreational enjoyment, clean water, and wild and scenic vistas, and; 
any economic effects of the subsidy inherent in the grazing program due 
to the cost of administering the program, undervalued Federal grazing 
permits, and the benefits of foregone uses.
    BLM agrees that some of the considerations and assessment topics 
listed in the comment may be relevant to specific proposal(s) for 
changes in grazing preference. Those determinations would be made for 
each individual proposal on a case-by-case basis. BLM would likely 
consider other factors listed in the comment, such as ``grazing 
subsidies'' related to grazing fee issues and/or costs of administering 
the program, and the value of grazing permits, outside the scope of 
future site-specific proposals for changes in grazing preference.
    Another comment stated that, if BLM adopts the proposal to consider 
social, economic, and cultural considerations in its grazing decisions, 
we should be

[[Page 39450]]

required to consider the past, present, and future impacts of grazing 
management decisions on the culture and traditions of Tribal members. 
This comment asserted that BLM must include in its analysis a full 
review of the economic costs to the public of livestock grazing on 
public lands, and the economic, social, and cultural effects that 
grazing has on Tribal nations and their members due to the effect of 
grazing activities on the Tribal resources (e.g., fish, wildlife, 
roots, berries).
    With respect to considering impacts of changing grazing preference 
on Tribal members, the consideration, when appropriate, of social, 
economic, and cultural factors will not necessarily preserve any 
particular lifeway associated with the use of public lands. Under NEPA, 
the American Indian Religious Freedom Act, and the National Historic 
Preservation Act, however, BLM must specifically consider the impacts 
of BLM actions and undertakings with respect to the concerns and 
traditional cultural properties of federally recognized Indian Tribes. 
The final rule does not subvert this direction.
    One comment stated that the analysis did not adequately consider 
the impacts of grazing, and of the proposed revisions, on American 
Indian sacred sites. The comment also stated that additional analysis 
focused on protecting the physical integrity of such sites is 
necessary. The comment noted particularly the sacredness attributed by 
Tribes to natural springs and surface waters.
    BLM recognizes its responsibility to manage heritage and cultural 
resources, including sacred sites under the National Historic 
Preservation Act and other authorities (e.g., Executive Order 13007), 
``Indian Sacred Sites''). Inventory, protection, stabilization, and 
enhancement of cultural resources have become integral parts of BLM 
management practices and planning initiatives. BLM does not believe any 
additional analysis is necessary. Beginning on page 4-41, the FEIS 
discusses the potential impacts of the proposed revisions on heritage 
resources. For example, the FEIS notes that new project developments 
will continue to be analyzed for effects on heritage resources on a 
case-by-case basis. For field office planning efforts and in accordance 
with BLM Manual 8100--The Foundations for Managing Cultural Resources, 
BLM will continue to address livestock grazing impacts at the land use 
or allotment management planning level, and conduct cultural resource 
surveys before taking management actions that could damage heritage 
resources. Historic and prehistoric sites found during such surveys 
would be protected in accordance with the National Historic 
Preservation Act of 1966 and other laws or executive orders as provided 
in 36 CFR part 800.
    The FEIS also states that Tribal consultation begins as soon as 
possible in any case where it appears likely that the nature and/or 
location of the activity could affect Native American interests or 
concerns. Finally, section 4120.5-2(c) of the final rule provides that 
BLM will cooperate with Tribal agencies, including Tribal grazing 
boards, in reviewing range improvements and allotment management plans 
on public lands. During such Tribal consultation, Tribes may submit 
information about all sites, including natural features such as springs 
and surface waters that have cultural or religious significance. BLM 
will consider all relevant information before making decisions about 
grazing.
    One comment stated that BLM should consider social, economic, and 
cultural effects only to the extent that agency decisions move toward 
balance and harmony with the environment, which is the stated purpose 
of NEPA. Another urged BLM to provide criteria for an ``appropriate 
analysis,'' because the regulation is not clear as to what analysis 
would be appropriate and whether any action could be taken until the 
analysis has been conducted.
    NEPA is a procedural statute, and does not direct the outcome of 
any agency decisionmaking process. The selection of impact topics to be 
considered in any environmental document is not pre-ordained, and BLM 
must tailor it to the issues identified for each proposed action, 
authorization, or undertaking. The commensurate level of impact 
analyses is tied to these selections. BLM believes the consideration of 
social, economic, and cultural factors provided for in section 
4110.3(c) of the proposed rulemaking--``analyze and, if appropriate, 
document relevant social, economic, and cultural effects of the 
proposed action''--is consistent with the intent of NEPA.
    BLM has decided not to provide criteria for an ``appropriate 
analysis'' because the level of analysis considered to be 
``appropriate'' will vary with each site-specific proposal and, 
consequently, specific criteria are unnecessary. As with all proposed 
actions for which environmental analysis is conducted pursuant to NEPA, 
the level of analysis must be tailored to the issues identified for 
each proposal and the level of impacts anticipated. Additionally, as 
with other Federal actions for which NEPA analysis is required, no 
action may be taken until a decision by the authorized officer is 
final. This is no different from any other analysis conducted under 
NEPA where a decision must be made before taking action.
    One comment stated that there are thousands of archaeological, 
historical, and cultural sites that are eligible or potentially 
eligible for the National Register of Historic Places that have been 
and are being damaged by livestock grazing on BLM-administered 
allotments. The comment also stated that BLM did not adequately 
consider these impacts, and that case-by-case review of range 
improvement projects will be insufficient for assessing the effect of 
grazing within the boundaries of documented historic properties.
    BLM adequately evaluated and disclosed the effects of the proposed 
rule on cultural resources in the FEIS. For example, as noted in the 
above response, page 4-41 of the FEIS discusses the potential impacts 
of the proposed revisions to the grazing regulations on heritage 
resources. New project developments will continue to be analyzed for 
effects on heritage resources on a case-by-case basis, and BLM will 
analyze the impacts on such resources from grazing at the land use or 
allotment management planning level. BLM disagrees with the comment's 
assertion that review of individual range improvement projects will not 
be sufficient to assess grazing impacts on historic properties. Before 
authorizing surface disturbance, BLM must identify cultural properties 
that are eligible for inclusion in the National Register of Historic 
Places and consider the effects of the action through the consultation 
process in Section 106 of the National Historic Preservation Act of 
1966.
    BLM notes that this final rule does not constitute an 
``undertaking'' with the potential to affect historic properties as 
defined in 36 CFR 800.16, since promulgating the rule is not an on-the-
ground activity affecting such resources. Promulgating a rule makes 
certain activities possible but does not mean that these activities can 
be tied to specific historic properties in specific places. However, 
NEPA and FLPMA do apply, and cultural resources were broadly considered 
in our planning and regulatory activities. This was done at a 
programmatic level for this rule in the FEIS, where the effects of the 
proposed rule (generally) were assessed with regard to potential 
effects on cultural resources (generally). Absent any specific actions 
it is not possible to identify potential effects on specific historic 
properties, and the rule does

[[Page 39451]]

not become an ``undertaking'' with the potential to affect historic 
properties as defined in the regulations. The regulations established 
by the Advisory Council for Historic Preservation make clear that once 
an agency determines there is no undertaking, or that its undertaking 
has no potential to affect historic properties, the agency has no 
further Section 106 obligations.
    Other comments stated that emphasis on considerations such as the 
social, economic, and cultural effects of agency decisions that change 
levels of grazing preference would have adverse impacts on natural 
resources, leading to degradation of the public lands. Comments stated 
that improving working relationships with grazing permittees and 
lessees would tend to weaken the ability of BLM to manage rangelands in 
a timely fashion by adding considerable time before action can be 
taken. One comment stated that BLM should have working relationships 
with the public, not just ranchers. Another accused BLM of appeasing 
ranchers and increasing the level of environmental damage.
    We have not materially changed current policy with regard to the 
consideration of social, economic, and cultural impacts of decisions in 
the grazing program. We currently consider the social, economic, and 
cultural effects of actions that change grazing use levels, as well as 
other aspects of grazing operations in the NEPA process. The main 
difference is that, under these changes to the regulations at section 
4110.3(c), BLM will more consistently document these considerations. 
This change in the regulations will help improve consistency across the 
Bureau in the analysis of social, economic, and cultural impacts. The 
consistent documentation of these concerns does not come at the expense 
of protecting natural resources and maintaining healthy rangelands. 
Rather, it improves working relationships between BLM and ranchers by 
ensuring that social, economic and cultural impacts are analyzed and 
disclosed where appropriate. Since this provision requires no more 
analysis than current policy does, we anticipate few delays in the 
authorization and implementation of grazing management actions on 
public lands attributable to this provision.
    One comment urged BLM to include, in addition to the provision as 
proposed, provisions to require BLM to work closely with local planning 
departments, to include consultation, cooperation, and coordination 
with the grazing permittee or lessee, and state and local government in 
this section, and to give consideration to provision for local, state, 
and regional governance.
    Under 43 U.S.C. 1712(c)(9), 40 CFR 1500.4(n), 1501.2(d)(3), 
1501.7(a)(1), 1506.2(b), and Departmental Manual and BLM Handbook 1790, 
BLM is directed to coordinate to the degree feasible with state and 
local governments. BLM sees no need to reaffirm existing guidance on 
this aspect of planning and environmental analysis in this rule.
Section 4110.3-1 Increasing Active Use
    In keeping with the changes in the meanings of ``preference'' and 
``active use,'' in the proposed rule we amended the heading of this 
section to refer to active use and removed the term ``permitted use'' 
throughout. Because the provision affects how we regulate available 
forage, we asked the public to comment on whether BLM should use the 
term ``available forage'' instead of ``active use.''
    BLM also asked for specific comments on this section to help 
determine whether there have been situations in which the ability of 
permittees or lessees to obtain loans was adversely affected by having 
some of their forage allocation suspended.
    We proposed to reorganize this section to describe how we authorize 
increased grazing use when additional forage is available either 
temporarily, or on a sustained yield basis. BLM added two new 
paragraphs to clarify who has priority when we grant additional grazing 
use because livestock forage has become available on either a 
nonrenewable basis or a sustained yield basis.
    In the final rule we have added language in the introductory text 
of this section that makes it clear that decisions increasing active 
use are also based on monitoring or documented field observations, just 
as decisions decreasing active use must be. Changes in preference, 
whether increases or decreases, already must be supported by monitoring 
or documented field observations under section 4110.3.
    A number of comments raised issues relating to additional forage 
temporarily available. Before discussing the comments, we will briefly 
describe how BLM handles forage that is temporarily available.
    In conformance with land use plan multiple-use objectives and 
decisions, BLM may allocate additional forage that is temporarily 
available for use by livestock, and authorize its use on a nonrenewable 
basis. Because it is a temporary forage allocation, the action of 
authorizing such use does not increase active preference. BLM commonly 
refers to such temporary forage allocations as ``TNR,'' which stands 
for ``temporary and nonrenewable'' livestock grazing use. Before 
authorizing TNR livestock grazing use, either by issuing a nonrenewable 
grazing permit, or by temporarily modifying the grazing permit or lease 
of a preference operator, BLM ensures compliance with NEPA analysis 
requirements and documents that this action conforms to applicable land 
use planning decisions. BLM completes NEPA-required analysis either in 
response to a specific circumstance following an application for 
additional use, or by completing a regionally-based analysis, in 
anticipation of applications, that specifies natural resource and 
weather-based criteria or thresholds that must be met or crossed, as 
well as other conditions that must be met before BLM will authorize TNR 
livestock grazing use.
    We have not changed the regulations in response to these comments, 
which we discuss below.
    BLM received numerous comments asking that a permittee's or 
lessee's stewardship efforts be included as criteria for determining 
who is to receive temporary, as well as permanent, increases in grazing 
use.
    Additional forage that is temporarily available most often occurs 
in years when favorable growing conditions result in above-average 
forage production. Although stewardship efforts can contribute to 
additional forage for livestock that is temporarily available, BLM 
believes that in most cases, it would be difficult to ascertain the 
role of stewardship versus the role of good growing conditions in 
contributing to the increase. Therefore, requiring BLM to consider and 
reward this role would be impractical.
    One comment asserted that only existing permittees and lessees 
should be eligible for grants of additional forage for livestock when 
BLM finds that it is available under section 4110.3-1(b).
    Section 4110.3-1 provides that if BLM determines that there is 
additional forage available for livestock within an allotment, it will 
first be apportioned to remove any suspensions of that allotment's 
permittees or lessees, then to those permittees or lessees in 
proportion to their contributions to stewardship efforts that led to 
the increased forage production, then to those permittees and lessees 
in proportion to the amount of their grazing preference, then to other 
qualified applicants. The comment urges BLM to remove ``other qualified 
applicants'' from the list of possible

[[Page 39452]]

recipients of the forage increase. BLM believes that it would be a rare 
occasion when there would be an increase in forage available for 
livestock that would be made available, following satisfaction of the 
other requirements of this regulation, to ``other qualified 
applicants.'' Nonetheless, BLM sees no need for undue restrictions on 
who may receive this public benefit.
    One comment advocated that BLM should determine if additional 
forage is temporarily available only upon application by a qualified 
applicant. If, the comment went on, following such application, BLM 
finds additional forage to be temporarily available, we should be 
obliged to approve its use by the applicant, following consultation, 
cooperation, and coordination with the preference permittee or lessee.
    BLM generally responds to, rather than solicits, applications for 
TNR use. It is unnecessary to make it a regulatory provision that BLM 
can determine additional forage to be available only if a qualified 
applicant applies for it first. Most commonly, BLM receives 
applications for TNR use from the permittee or lessee with preference 
for use in the allotments where the forage is available. The 
regulations provide also that a person other than the preference 
permittee or lessee may apply for TNR use.
    One comment urged us to provide in this section that BLM must 
consult with wildlife agencies before temporarily, as well as 
permanently, increasing grazing use, so that they can effectively 
manage wildlife whose populations can be affected by grazing.
    As provided by section 4130.6-2, BLM is required to consult, 
cooperate, and coordinate with the preference permittee or lessee and 
the state having lands or responsibility for managing resources in the 
area prior to authorizing TNR use. Thus the state agencies responsible 
for managing wildlife resources will be consulted prior to a proposed 
decision for increases or decreases in active use as well as for TNR 
use. In addition, BLM will consult with state wildlife agencies as part 
of the process to develop the NEPA compliance documentation.
    One comment asked BLM to clarify in this section that additional 
forage will be, rather than may be, apportioned to qualified applicants 
consistent with land use plans.
    BLM retained the term ``may,'' rather than ``will,'' as it pertains 
to apportioning additional forage available for livestock grazing, in 
order to retain our complete discretion in this matter. The wording in 
the final rule reflects that in the pre-1995 provision. It means that 
BLM will not apportion additional forage temporarily available if there 
is no demand for it. (As to additional forage available on a sustained 
yield basis, on the other hand, the regulations state that BLM will 
first use it to end suspensions that were in place due to lack of 
forage. Any further apportionment of such forage, however, will occur 
only after consultation with the affected state agencies, permittees, 
lessees, and the interested public.)
    One comment interpreted changes in this section to mean that BLM 
could designate ephemeral or annual rangelands based on a finding that 
forage was temporarily available and allow BLM to approve grazing 
regardless of land use plan decisions and land conditions.
    A BLM determination that additional forage for livestock is 
available on a temporary basis does not serve to designate ephemeral or 
annual rangelands. BLM makes these determinations in land use plans.
    The next group of comments addressed increases generally. BLM made 
one change to the final regulations in response to these comments.
    One comment asked BLM to make it clear that section 4110.3-1(b)(2) 
refers only to forage available for livestock, so that the regulation 
is not interpreted to preclude allocations of additional forage 
available on a sustained yield basis to other uses.
    Section 4110.3-1 (b)(2) is within paragraph (b), which we have 
amended in this final rule by adding the word ``livestock,'' so that it 
states in part, ``When the authorized officer determines that 
additional forage is available for livestock use on a sustained yield 
basis, he will apportion it in the following manner * * *.'' BLM 
believes that this makes it clear that the forage being referred to is 
forage allocated to livestock through planning and decision processes, 
in contrast to, for example, forage that is allocated to wild horses 
and burros, or forage that is allocated to wildlife, using the same 
planning and decision processes.
    Another comment asked BLM to include assurances or a requirement 
that increased forage allocation to wildlife will result when wildlife 
organizations contribute to a project that increases available forage.
    The suggestion to provide assurances in this subpart that increased 
forage resulting from projects funded by wildlife organizations is 
outside of the scope of this rule. However, before agreeing to fund 
projects that will increase forage available on public lands, wildlife 
organizations are free to negotiate the terms under which to make such 
contributions, and to memorialize these arrangements through 
cooperative agreements with BLM and other project participants.
    Another comment urged BLM to establish criteria that must be met 
before preference can be increased.
    Regulatory criteria for making changes in grazing preference, 
including increases in preference, appear in section 4110.3(a). They 
include: to manage, maintain, or improve rangeland productivity; to 
assist in restoring ecosystems to properly functioning condition; to 
conform to land use plans or activity plans; or to comply with the 
provisions of subpart 4180.
    One comment urged BLM to provide permittees and lessees the right 
to ``petition'' for increased grazing use up to the limit of their 
preference, subject to its availability.
    Under previous and current regulations at section 4130.1-1, 
permittees and lessees have the right to apply for grazing use at 
whatever level they desire, regardless of preference. BLM's response to 
the application, however, will be guided by available resource 
information pertinent to the decision, be consistent with land use plan 
objectives and decisions, and comply with these grazing regulations.
    One comment stated that BLM should develop and demonstrate a 
process that would allow grazing to increase if monitoring shows that 
an increase is warranted.
     The section discussed in this portion of the preamble already 
contains, and this rule does not remove, procedures to allow grazing to 
be increased.
    One comment suggested that the interested public should be excluded 
from consultation, cooperation, and coordination under section 4110.3-
1(b)(2).
    We have not adopted this suggestion in the final rule. The 
allocation of additional livestock forage available on a sustained 
yield basis, after satisfaction of any suspension of preference of the 
permittee or lessee for the allotment where the additional forage is 
located, is considered a planning decision by BLM. Therefore, it is 
appropriate to consult, cooperate, and coordinate with the interested 
public, as well as affected permittees, lessees, and the state, before 
issuing a proposed decision allocating that additional livestock 
forage.
Section 4110.3-2 Decreasing Active Use
    Again, in this section we replaced the term ``permitted use'' with 
the term ``active use'' throughout. We also amended paragraph (a) to 
provide that BLM will document its observations

[[Page 39453]]

that support the need for temporary suspension of active use, and 
amended paragraph (b) to provide that BLM will place any reductions in 
active use made under this paragraph into suspension rather than 
require a permanent reduction.
    Several comments on this section stated that BLM should have the 
option to require that preference reductions made under section 4110.3-
2(b) be placed in ``nonuse'' rather than be suspended by BLM.
    BLM has not adopted this suggestion in the final rule. Adopting 
this suggestion would confound, rather than clarify, the management 
implications of the action of ``suspending'' active preference versus 
approving the ``nonuse'' of active preference.
    Before 1995, the grazing regulations provided that when active use 
was reduced, the amount reduced could be either ``held [by BLM] in 
suspension or in nonuse for conservation/protection purposes.'' This 
pre-1995 terminology created 3 categories of preference: ``active,'' 
``suspended'' and ``nonuse for conservation/protection purposes.'' 
Having three categories of preference made it less clear under what 
management circumstances it was appropriate for BLM to suspend active 
use rather than ``hold'' nonuse (of active use) for conservation/
protection purposes. Further conceptual blurring was created by BLM 
policy, as stated in our handbook, that a permittee/lessee could 
annually apply and receive approval for nonuse of all or a part of his 
active use for reasons associated with personal or business needs, or 
for ``conservation and protection of the range,'' but this ``short-
term'' nonuse did not affect preference status. Based on the pre-1995 
regulations, there currently are some grazing permits and leases that 
list nonuse that is being ``held'' by BLM and which is included as a 
part of the total grazing preference. However, this nonuse, i.e., that 
portion of active use that was ``held in nonuse conservation/
protection'' under the pre-1995 regulations, is the practical 
equivalent of suspended preference as this term is used in this rule.
    This final rule intends to establish and clarify a distinction 
between ``suspended'' preference and ``nonuse'' of preference, thus:
     Suspended preference arises from an action initiated by 
BLM. BLM suspends preference when necessary to manage resources by 
decreasing active use under section 4110.3-1 or as a penalty action for 
grazing regulations violations under section 4170.1-1. In contrast, 
nonuse arises when BLM approves an application submitted by a grazing 
permittee or lessee not to use some or all of the active use authorized 
by a permit or lease under section 4130.4.
     Suspended preference is shown on the grazing permit or 
lease, and along with active use is part of the total grazing 
preference of the permittee or lessee. BLM does not issue a grazing 
permit or lease to authorize nonuse. The ``conservation use 
permitting'' provisions that allowed for this practice were disallowed 
by the 10th Circuit Court of Appeals in 1998 and are removed from the 
grazing regulations by this rule. As explained previously, because of 
the regulations that were in place before 1995, there is one exception 
to the statement that we do not issue grazing permits or leases that 
authorize nonuse. On some permits and leases, BLM still shows nonuse as 
a part of the total preference because pre-1995 regulations allowed 
reductions of active preference to be ``held in nonuse for 
conservation/protection purposes.'' However, this nonuse is the 
practical equivalent of suspended preference as clarified by this rule.
     BLM may suspend preference on a short-term basis, as may 
be needed, for example, to allow recovery of vegetation after a fire. 
BLM also may suspend preference for a longer term or indefinitely, as 
may be needed, for example, when BLM determines through monitoring that 
there is not enough livestock forage produced on a sustained yield 
basis to support the active use authorized by a permit or lease, and 
that forage production is not expected to be able to support that level 
of use for the foreseeable future. To receive BLM's approval for 
nonuse, permittees or lessees must apply for nonuse of some or all of 
the active use authorized by their permit or lease, prior to the start 
date of the grazing use period specified on their permit or lease. The 
BLM authorized officer authorizes the nonuse by approving the 
application, as indicated by his signature on the application. BLM will 
not approve of nonuse for longer than one year at a time, and will 
approve it only if we agree that nonuse is warranted for the reasons 
provided on the application.
     BLM must issue a grazing decision or be a party to a 
documented agreement to suspend preference. BLM records suspended 
preference on permits and leases and in operator case records for 
recordkeeping purposes, but suspended preference is not available for 
active use under the permit or lease. BLM need not issue a decision or 
have a documented agreement to approve nonuse. If BLM approves an 
application for nonuse for reasons of rangeland conservation, 
protection, or enhancement, or for personal or business needs, the 
permittee or lessee is precluded from using the amount of active use 
that has been approved for nonuse. BLM may subsequently approve a later 
application to make use of what had been approved as nonuse should 
circumstances change (e.g., moisture is received later in the season 
that increases forage production, thereby alleviating the need for 
nonuse for conservation reasons, or an operator purchases livestock 
mid-season and because of this can use forage that he previously could 
not because he did not own enough livestock).
    Suspended preference is a recordkeeping convention adopted by BLM. 
If, after the suspension, BLM determines that there is an increase in 
the amount forage available for livestock on a sustained yield basis, 
this record indicates who has priority for its use and in what amount. 
As explained above, due to the regulations in place before 1995, some 
permits and leases show ``nonuse'' as a part of the grazing preference. 
In actuality, this nonuse is equivalent to suspended use as the concept 
has been clarified by this rule.
    One comment requested that BLM not change the regulation and 
continue to provide that the active use that is reduced under this 
paragraph be terminated rather than suspended.
    We did not adopt this comment in the final rule. It is important to 
keep record of any reductions in active preference as ``suspended'' 
preference. It helps BLM to track, by allotment, permittee or lessee, 
and base property, the original livestock grazing use forage 
allocation, the attachment of that allocation to base property, and 
subsequent adjustments arising both from management actions to increase 
or reduce use, and from administrative actions such as preference 
transfers. Suspended preference is attached to base property, and is 
transferred along with active preference. This record facilitates BLM's 
ability to apply section 4110.3-1 to reinstate active use to permittees 
and lessees, upon a BLM determination that forage for livestock, in an 
amount that exceeds active preference, has become available on a 
sustained yield basis.
    Another comment asked that BLM cross-reference this paragraph to 
section 4110.3-1 in order to make it clear that activation of 
preference suspended under section 4110.3-2(b) would be governed by 
that section.
    BLM did not adopt this suggestion. BLM does not believe that cross-
referencing section 4110.3-1 in section 4110.3-2(b) is needed to ensure 
that it is understood that activation of

[[Page 39454]]

preference suspended under section 4110.3-2(b) is, in fact, governed by 
section 4110.3-1.
    One comment asked BLM to change the criteria that justifies a 
reduction of active use as described in Sec.  4110.3-2(b) from ``when 
monitoring or documented field observations show that grazing use or 
patterns of use are inconsistent with subpart 4180, or that grazing use 
is otherwise causing an unacceptable level or pattern of use, or that 
use exceeds livestock carrying capacity,'' to ``when monitoring shows 
that active use is inconsistent with objectives of the applicable land 
use plan, activity plan, or decision, or shows that active use exceeds 
the forage available on a sustained yield basis.'' This comment said 
that this change would clarify that land use plans governed actions 
that affected the amount of active use authorized.
    We have not adopted the comment in the final rule. BLM believes 
that these criteria are sufficiently clear to serve the purpose 
intended by the regulation. These criteria allow for the effects of 
grazing use to be measured against objectives tailored specifically to 
a local area, such as a single stretch of a riparian area, or an 
individual pasture, that may not be addressed in sufficient management 
detail in a land use plan, activity plan, or decision of the authorized 
officer. These local objectives would be consistent with the more 
general management objectives typically found in land use plans and 
activity plans. Moreover, section 4110.3(a) provides that BLM will 
change grazing preference as needed to conform to land use plans or 
activity plans.
    Another comment stated that because grazing use or patterns of use 
are by definition a part of monitoring, including them in Sec.  4110.3-
2(b) is redundant.
    BLM acknowledges that use of pattern mapping and measurement of 
utilization are a part of monitoring. The wording in the regulation, 
however, is not redundant. The regulation requires that when this 
information shows that grazing use levels or patterns of use are 
unacceptable, BLM will reduce active use, otherwise modify management 
practices, or both.
    One comment stated that BLM should provide for payment to the 
permittee or lessee for any cuts in permit numbers at the prevailing 
appraised rate in order to curtail cutting permits under the pretense 
of the ESA.
    It is not clear from the comment why it concluded that BLM paying a 
permittee or lessee for reductions in grazing use would curtail 
reductions made as a result of compliance with the requirements of the 
ESA. In any event, grazing permits and leases convey no right, title, 
or interest held by the United States in any lands or resources. 
Therefore, payment for reduced livestock use would be neither 
appropriate nor legally supportable.
    Finally, one comment stated that BLM should not reduce preference, 
and suggested that individual monitoring would provide the information 
needed to make grazing changes that would address management issues 
without having to reduce preference.
    We have not adopted the suggestion that BLM not be allowed to 
reduce preference. This would unduly restrict the statutory authority 
of the Secretary to manage grazing use on public lands. Depending on 
circumstances, there are management solutions to grazing issues that do 
not involve reducing preference. However, this is not always the case.
    One comment urged that, in case of fires in allotments, the 
allotment should be rested for a minimum of 3 years, and 5 years if any 
BLM permittee has livestock on a burn area prior to approval, plus a 
substantial reduction in their grazing permit.
    The issue of how much rest from livestock grazing is needed after a 
fire is a matter for internal guidance, and is outside the scope of 
this rule. Furthermore, prescribing rest periods for lands through the 
regulatory process does not allow site-specific analysis and 
consideration of on-the-ground resource conditions and potential 
impacts.
Section 4110.3-3 Implementing Changes in Active Use
    In the proposed rule, we changed the title of this section to 
reflect that it pertains to both increases and decreases in grazing 
use. We also modified how BLM implements changes in active use. The 
amended section provided that BLM will phase in changes in active use 
of more than 10 per cent over a 5-year period unless the affected 
grazer agrees to a shorter period or the changes must be made before 
the end of 5 years to comply with relevant law. This 5-year phase in 
period is similar to that in the pre-1995 regulations.
    BLM also amended paragraphs (a) and (b) by removing the phrase 
``the interested public.'' Changes in active use must be preceded by 
reports, including NEPA documents, that analyze data BLM uses to 
support the change. Under section 4130.3-1, BLM provides the interested 
public the opportunity to comment on these reports. Under section 
4160.1, BLM provides a copy of the proposed and final grazing decisions 
to implement the change to the interested public. BLM will provide the 
interested public full opportunity for participation and comment on the 
action prior to actual implementation. For this reason additional 
consultation with the interested public regarding the actual scheduling 
of the change is redundant.
    Under the final rule, changes in active use levels and emergency 
closures made due to drought, fire, flood, insect infestation, or when 
grazing poses an imminent threat to the resource, no longer trigger 
required consultation, cooperation, and coordination with the 
interested public. This change is intended to improve the 
administrative efficiency of grazing management operations.
    Many comments opposed any reduction in the role of the interested 
public, but relatively few comments addressed these particular 
functions. Some comments supporting the change noted active use changes 
as an area where efficiency could be improved by removing the 
interested public consultation requirement.
    Note again that the role of the public under NEPA is unaffected by 
this rule change. Additionally, members of the interested public will 
have an opportunity to review and provide input on any reports used as 
a basis for decisions on changes in grazing use. The interested public 
will still receive the proposed and final decisions for changes in 
active use, and they could protest the proposed decision if so desired.
    In BLM's view, the NEPA process, informal consultations, the 
opportunity to review and provide input on reports used as a basis for 
decisions, and the ability to protest before a decision is final, all 
are adequate mechanisms for identifying legitimate public concerns over 
active use changes. No protest could be filed against an emergency 
closure, which is issued as a final decision, but these decisions 
require management flexibility to allow a quick response to changing 
circumstances on the ground. These changes make the grazing program 
similar to other BLM programs in the level of coordination required for 
actions under various BLM permits and leases. Therefore, we have made 
no changes in the final rule.
    A number of comments supported the proposed provision in section 
4110.3-3 for phasing in changes in active use greater than 10 percent 
over 5 years. These comments stated that the provision would ensure 
more orderly administration of grazing on BLM administered lands and 
protect the resource better than the current regulations do. Others 
agreed that it would improve the ability of local BLM

[[Page 39455]]

field managers to use the variety of rangeland management tools 
available, including range improvements and changes in grazing 
strategies, to accomplish resource objectives because of the additional 
time allowed. Most of the supportive comments agreed that permittees 
should be given the opportunity to make adjustments over a period of 
time in order to incorporate the reductions into their entire 
operation/business without unnecessary economic disruption.
    Other comments opposed the provision allowing up to 5 years to 
implement changes in active use greater than 10 percent. Some stated 
that the provision is inconsistent with the regulatory objective: ``to 
accelerate restoration and improvement of public rangelands to properly 
functioning conditions.'' Others reasons given for opposing the 
provision included concerns that it would allow unhealthy range 
conditions to persist, delay range recovery, or lead to additional 
range degradation, especially of riparian and wetland habitats. They 
said the provision would have negative impacts on natural resources and 
other uses of the land. Some of these comments stated that the 
provision showed that BLM is more concerned with private financial 
well-being of permittees than with managing publicly owned natural 
resources in the public interest. One comment said that if the 
condition of the natural resources on a grazing allotment is so bad 
that a reduction in permitted livestock numbers in excess of 10 percent 
is necessary, then the situation is probably so bad that delaying 
implementation of the reductions would be tantamount to criminal 
neglect. Others said that such delays would lead to continued petitions 
for listing species under the ESA. One comment opposed this provision 
because it would contradict the goal of increasing administrative 
efficiency, negate the requirement for prompt action to address harmful 
grazing practices, and limit the conditions under which BLM may revoke 
a grazing permit. Others said that it would tend to weaken the ability 
of the local BLM field offices to manage rangelands in a timely fashion 
by adding considerable time before we can take action. Some comments 
conceded that under some circumstances it may be possible to phase in 
the needed changes in grazing over a 5-year period without compromising 
long-term range sustainability, but stated that BLM range professionals 
needed the ability to respond immediately and to the extent necessary 
to avoid impacts on range condition or vegetation communities that may 
take decades to reverse. Other comments expressed concern that the 
proposed 5-year phase-in period may be inadequate to protect sensitive 
species and their habitat. One comment requested clarification as to 
whether the provision allow BLM to adjust livestock numbers over a 
shorter period of time to protect wildlife and plants that are 
candidates for listing as threatened or endangered or determined by BLM 
to be sensitive, and whether the proposed rule was in compliance with 
the requirements of the Endangered Species Act. (The sensitive species 
designation is normally used for species that occur on BLM-administered 
lands, and for which BLM can significantly affect their conservation 
status through management. See BLM Manual 6840.06E (Release 6-121, 01/
19/01)).
    We believe the final rule gives BLM sufficient discretion to handle 
a wide range of circumstances. The rule does not change BLM's ability 
to cancel a permit in whole or in part if necessary. The rule is 
flexible enough to provide for immediate, full implementation of a 
decision to adjust grazing use if continued grazing use poses an 
imminent likelihood of significant soil, vegetation, or other resource 
damage. The rule also allows BLM and the permittee to agree to a 
shorter time frame for implementation. The rule allows BLM to initiate 
necessary adjustments while giving the permittee an opportunity to make 
changes in their overall business operation. The provision in the rule 
allows us to begin reducing active use when necessary, while 
considering the human aspect of the impacts of the reduction. Our 
cooperative approach should lead to a decreased likelihood of appeal on 
the part of the permittee or lessee. In turn, we expect this decreased 
likelihood of appeal to result in implementing necessary grazing 
reductions more quickly, thus allowing BLM to remedy resource problems 
more efficiently. Recent experience (1998-2002) indicates that current 
livestock grazing or level of use was a significant factor in not 
meeting land health standards on only 16 percent of the allotments 
evaluated, requiring adjustments in current livestock management. From 
1998 to 2005, 15 percent of the evaluated allotments were determined to 
be in this category. Most of these adjustments have been made in the 
season of use, or movement and control of livestock, rather than in 
levels of active use. An unknown, but likely small, portion of these 
adjustments were changes of more than 10 percent in active use. Where 
adjustments are needed to improve riparian or wetland condition, the 
adjustments are rarely in active use, but are frequently adjustments in 
season of use, or changes in length of time livestock are allowed 
access to the riparian area (e.g., grazing might be changed from 6 
weeks in the summer to 3 weeks in the spring). The rule contains an 
exception, in section 4110.3-3(a)(ii), that allows changes in active 
use in excess of 10 percent to be implemented in less than 5 years to 
comply with applicable law, such as the Endangered Species Act. BLM 
also has discretion under section 4110.3-3(b)(l)(i) and (ii) to 
implement changes in active use immediately to handle a wide range of 
circumstances. These circumstances may include fire, drought, the need 
to protect soil, vegetation, or other resources, or if continued 
grazing use poses an imminent likelihood of significant resource 
damage.
    BLM has the authority to implement grazing decisions immediately if 
the authorized officer determines that soil, vegetation, or other 
resources on the public lands require immediate protection because of 
conditions such as drought, fire, flood, or insect infestation, or if 
continued livestock grazing poses an imminent likelihood of significant 
resource damage. BLM's responsibilities under the ESA and BLM special 
status species policy are not affected by the final rule.
    Several comments offered alternatives to the 10 percent threshold 
and the 5 year implementation period. One comment proposed that the 
threshold for changes that prompt a delay of 5 years in implementation 
should be increased from 10 percent to at least 25 percent, reasoning 
that small adjustments would result in ascertainable changes in 
resource condition in a season or two. Another comment suggested that 
the authorized officer implement changes in active use of 5 percent or 
less in 1 year, 5 to 15 percent equally over 3 years, and in excess of 
15 percent equally over 5 years. The comment stated that this 
formulation would ensure equal, incremental decreases or increases in 
active use over time, and accelerate decreases or increases in active 
use when a relatively small change is made.
    The 10 percent threshold and 5 year implementation period proved to 
be a practical combination prior to being changed in the 1995 rules. 
The lower threshold allows affected permittees to avoid rapid 
adjustments in such significant numbers. However, the number of 
permittees and allotments affected by this provision is not likely

[[Page 39456]]

to be large, given that over the last 5 years, most adjustments in 
grazing management resulting from land health assessments have been 
made in the season of use, or movement and control of livestock, rather 
than in levels of active use. Again, recent experience (1998-2002) 
indicates that current livestock grazing or level of use was a 
significant factor in not meeting land health standards on only 16 
percent of the allotments evaluated, requiring adjustments in current 
livestock management. From 1998 to 2005, 15 percent of the evaluated 
allotments were determined to be in this category. See Section 4.3.1 of 
the EIS and page 33 of the EIS Addendum.
    Comments expressed concern that annual conditions or fluctuations 
in weather could require more than 10 percent reductions on an annual 
basis, particularly in the arid southwest.
    In practice, during prolonged drought conditions, ranchers 
voluntarily reduce their livestock numbers because of the economics of 
their industry. However, this section of the rules applies to 
adjustments in the terms of the grazing permit, rather than in 
temporary adjustments made on an annual basis. When temporary 
adjustments need to be made because of annual conditions, BLM and the 
permittee or lessee can respond by:
    (1) Resorting to temporary changes in grazing use within the terms 
and conditions of the permit or lease under section 4130.4(a);
    (2) Electing temporary nonuse under section 4130.4(d);
    (3) Decreasing active use through suspensions under section 4110.3-
2; or
    (4) In more extreme cases of drought, fire, flood, or insect 
infestation, closing or partially closing allotments under section 
4110.3-3(b).
    One comment stated that implementing stocking rate changes of more 
than 10 percent over a 5-year period would only be significant for 
large operators. For most small permit holders such changes would be a 
nuisance and administrative burden for permit managers to implement 
(citing an example of a 50 AUM permit). The comment stated that small 
changes to existing permits should be implemented in 2 years or less, 
since this would be more efficient for both permittee and public land 
manager. For larger permits, the comment suggested that the phase-in of 
changes should be dependent on situational conditions and their 
relationship to the need for improving rangeland health and permittee 
interests (up to 5 years).
    The final rule is flexible enough to allow BLM and the permittee to 
agree to a shorter time frame for implementation. The regulations allow 
BLM to initiate necessary adjustments while giving permittees 
opportunity to make changes in their overall business operations.
    One comment pointed out that BLM has not reviewed many grazing 
allotments for over a decade. The comment concluded that, considering 
improvements in our knowledge of range science and of best management 
practices for rangelands over the past 20 years, it is likely that 
changes in active use in excess of 10 percent will be required on 
numerous allotments.
    BLM is evaluating current resource conditions in relation to land 
health standards. By the end of 2003, we had evaluated 40 percent of 
allotments, and plan to evaluate the remainder by the end of 2008. As 
we stated earlier, based on results and changes made because of these 
evaluations, most adjustments in grazing management are being made in 
the season of use, or movement and control of livestock, rather than in 
active use.
    One comment cited situations when it would be desirable to increase 
grazing in order to enhance habitat for ``federal trust species.'' The 
comment also asked whether BLM needs permission from an allotment's 
existing permittee before it could allow another grazing operator to 
graze additional livestock on an allotment when desired to enhance 
habitat for Federal trust species, and asked also whether such an 
operator would need to meet mandatory qualifications.
    It is advantageous at times to increase livestock numbers for weed 
or vegetation management for purposes of enhancing habitat and reducing 
brush cover for specific wildlife species (e.g., burrowing owl or 
mountain plover). In these cases BLM has several options. The BLM would 
first contact the existing permittee to discuss needs and options 
feasible to the permittee. If the permittee is unable to increase 
stocking numbers, BLM may advertise an available opportunity to 
applicants qualified under section 4110.1, offer a free-use permit, or 
contract to have vegetation reduced by goats, mechanical thinning, or 
manual pulling and weeding.
    One comment stated that slowing the response to unhealthy 
rangelands seems to be inconsistent with the current Administration 
policy of accelerating management responses to fire and the conditions 
that lead to or exacerbate fires.
    This comment is attempting to compare two situations that are not 
comparable. Fires in the wrong locations threaten life and property, 
and it is vital to accelerate management efforts to deal with these 
threats. Rangeland degradation does not normally carry equivalent 
threats. The regulations are flexible enough to allow accelerated 
management to address range degradation that cannot wait for the phase-
in period provided in section 4110.3-3(a)(1). As stated earlier, the 
rule at section 4110.3-3(b)(1)(i) allows BLM to remove or modify 
livestock grazing when immediate protection is needed because of 
conditions such as drought, fire, flood, or insect infestation. In 
1994, BLM amended its grazing regulations to address the health of 
public rangelands. These changes, including the standards and 
guidelines for grazing administration, remain in the rule and continue 
to contribute to improving the health of public rangelands. The changes 
adopted in this final rule seek to refine, without altering the 
fundamental structure of, the grazing regulations. In other words, we 
are adjusting rather than conducting a major overhaul of the grazing 
regulations.
    One comment asked BLM to require that increases in active use be 
implemented by decision, so that the action could be protested and 
appealed, and to make it consistent with the requirement at section 
4110.3-3(a)(2), which, the comment states, requires that decreases in 
active use be implemented by decision. Another comment stated that BLM 
should remove its authority at section 4110.3-3 to implement changes in 
active use by decision, so that range improvements could be installed 
in lieu of reducing active use.
    This provision in section 4110.3-3 was not proposed for change in 
the proposed rule. BLM believes that it is important to retain the 
discretion to change preference by agreement or by decision, depending 
on management circumstances that can vary greatly from instance to 
instance, and not require the use of one method or the other. We would 
use agreements in relatively simple management circumstances, such as 
with the holder of a small allotment with relatively few management 
issues. For example, an operator who agrees with the need for a change 
in his forage allocation, and has no interested public, would be a 
likely candidate for implementing a change in preference by agreement. 
In contrast, decisions are more likely to be used in complex management 
circumstances such as might be encountered, for example, when 
addressing the needs of a large allotment that has several resource 
issues, is permitted to several operators, and has several interested 
publics, some of whom might dispute the need for, or

[[Page 39457]]

the appropriate level of, the preference change. Section 4110.3-3(a)(2) 
does not require that decreases in active use be implemented by 
decision. This section requires that when a reduction in permitted use 
is implemented by decision, as opposed to by agreement, the decision 
must first be issued as a proposed decision, except when immediate land 
protection is needed because of circumstances such as drought, fire, 
flood, or insect infestation, or when continued grazing use poses an 
imminent likelihood of resource damage. There are times when the 
installation of range improvements is an adequate substitute for 
indefinite suspension of active use. For example, a new water 
development may improve grazing distribution enough so that forage not 
previously available becomes available for livestock use. However, 
range improvements are not always the appropriate management response. 
It is in the interest of sound management to provide BLM with the 
flexibility to modify active use, or authorize range improvements, 
depending on the circumstances.
    One comment suggested rewriting sections 4110.3-2 and 4110.3-3 so 
that they are clearer and don't cross-reference each other so much.
    Each of the two sections specified in the comment contains one 
cross-reference to the other section. We do not consider this an 
unreasonable number of cross-references. We have reviewed the two 
sections and do not see how they could be written more clearly and 
still provide the information necessary.
    One comment suggested making the 5-year phase in of changes in 
active use greater than 10 percent discretionary with BLM, stating that 
it would allow BLM to react in a timely manner if resource conditions 
were in more immediate need of improvement, for whatever reason, and 
result in greater benefits to wildlife.
    The regulations, at section 4110.3-3, already allow BLM to act more 
quickly to avoid significant resource damage by closing all or portions 
of an allotment in the circumstances described in the comment.
    One comment urged BLM to make adjustments when data indicates 
livestock numbers are out of balance with the capacity of the land. 
Estimates of stocking rates in plans do not necessarily reflect BLM's 
willingness to reduce stocking levels. Another comment stated that 
Federal rangeland health standards demand that the rule should focus 
decisionmaking on management objectives stated in land use plans, 
activity plans, and grazing decisions.
    Stocking rates are best determined in the land use planning 
process. However, as we stated earlier, the regulations contain 
mechanisms for making changes in grazing use to avoid significant 
resource damage. As provided in subpart 4180, we will use monitoring 
and standards assessment to determine whether changes in management 
practices are necessary.
    Several comments suggested modifications of this section 4110.3-2 
of the proposed rule. One was that BLM should consult with any base 
property lienholder before closing allotments to grazing or modifying 
grazing authorizations due to emergencies or when continued grazing use 
will result in resource damage. Another was to include consultation 
with county commissioners where downward adjustments in grazing use 
levels are being planned, and that the reductions should be justified 
by reasons that are documented in an allotment evaluation that is 
conducted before the adjustments occur. A third suggested change was to 
amend Sec.  4110.3-3(b)(1) and (b)(2) by replacing the term 
``authorized grazing use'' with ``active use'' because there is no 
definition of ``authorized grazing use'' in the regulations.
    BLM is not changing the regulations in response to these comments. 
BLM implements changes in active use by grazing decision or by 
documented agreement. When changes are implemented by decision, our 
regulations provide for sending such decisions to any lienholder of 
record. If such lienholders requested ``interested public'' status, 
they would also be able to provide input and comment on reports BLM 
uses as a basis for making decisions to increase or decrease grazing 
use. Given these opportunities for lienholder input to BLM's 
decisionmaking process, there is no need for BLM to require itself to 
consult specifically with lienholders before implementing changes in 
active use. Further, in the pursuit of sound resource management, it 
would be inappropriate to allow consideration of whether base property 
is subject to a lien to affect or change a BLM decision to close 
allotments to grazing or to modify grazing permits or leases due to 
emergencies or when continued grazing use will result in resource 
damage.
    The state having lands or responsibility for managing resources in 
the affected area may choose to include county commissioners' input as 
part of the state's consultation with BLM. BLM may also consult 
directly with county commissioners at its option. BLM believes that 
these two avenues of consultation provide adequate opportunity for 
county commissioners to make their views known to BLM regarding 
management issues. BLM makes either downward adjustments in grazing use 
levels temporarily in response to emergencies or indefinitely after it 
has determined that livestock forage is insufficient on a sustained 
yield basis to support grazing at levels that had been previously 
authorized. In either case, the decision implementing the downward 
adjustment provides the rationale for the action and is subject to 
review upon appeal. In most cases of indefinite downward adjustments in 
grazing use levels, such rationale relies upon analysis found in a 
documented allotment evaluation.
    Paragraphs 4110.3-3(b)(1) and (b)(2) allow BLM to modify authorized 
grazing use in response to emergencies, including complete closure of 
an area to grazing when necessary to provide immediate protection 
because of conditions such as drought, fire, flood and insect 
infestation. ``Active use'' refers to a number of AUMs of forage. The 
term ``authorized grazing use'' is more expansive and refers to all the 
terms and conditions of use authorized by a term permit or lease. These 
terms and conditions include, at a minimum, the number of livestock 
authorized, where they may graze, and the season of the year and period 
that they may graze. Although BLM may modify ``active use'' in response 
to emergency resource conditions, we may also modify the other 
parameters of use (such as location, period, and season) in response to 
these conditions.
    One comment suggested removing the provision authorizing BLM to 
close allotments to grazing or modify authorized grazing use when the 
authorized officer determines that resources on public land require 
immediate protection or continued grazing use poses an imminent 
likelihood of significant resource damage (section 4110.3-3(b)(1)). The 
comment stated that the provision is too vague and could be used as a 
catch-all to eliminate grazing at any time.
    We have not adopted this suggestion in the final rule. The phrase 
``or where continued use poses an imminent likelihood of significant 
resource damage'' is in fact a prerequisite that must occur or be found 
to exist before BLM can take action. The phrase covers situations not 
otherwise specified in the regulation (i.e. ``because of conditions 
such as drought, fire, flood, or insect infestation''). It would be 
impractical for BLM to list in the regulations all possible situations 
where an immediate closure or modification of grazing may be needed. 
All BLM decisions that close

[[Page 39458]]

or modify grazing use are supported by rationale stated in the 
decision, and decisions may be appealed under subpart 4160 and part 4.
    One comment stated that, because of the problems associated with 
recurrent long term drought, the regulations should require that base 
property provide forage or other means of sustaining livestock should 
the necessity arise to remove livestock from the public lands. 
Furthermore, the comment went on, the base property should be real fee 
property of the permittee or lessee and not leased property from a 
state or other private property owner.
    In areas where land serves as base property, BLM specifies the 
length of time that the property must be capable of supporting 
authorized livestock during the year (see section 4110.2-1(b)), thus 
including the concept that the base could be used to sustain the 
livestock should the necessity arise to remove them from public lands. 
This ``base property requirement'' differs depending on the BLM 
jurisdiction, but generally ranges from 2 to 5 months. In the desert 
southwest, where water or water rights can serve as base property, BLM 
can close allotments or portions of allotments to grazing use 
immediately to protect resources because of conditions such as drought. 
BLM sees no need to require that base property must not be leased 
property.
    One comment identified an incorrect reference to 43 CFR 4.21 in 
4110.3-3(b)(2). A stay relative to grazing is granted in accordance 
with 43 CFR 4.472.
    The final rule contains the correction.
Section 4110.4-2 Decrease in Land Acreage
    In the proposed rule, we removed the term ``permitted use'' from 
this section and replaced it with the term ``grazing preference'' for 
the reasons explained previously. No public comments addressed this 
specific change, and we have made no further changes in the final rule 
as to this aspect of the proposed rule.
    Several comments raised issues that are tied to this provision. One 
comment suggested that BLM should be able to designate lands as not 
available for grazing when this is needed to protect critical or 
sensitive areas. Another comment stated that BLM should develop 
regulations providing: (a) For the retirement or non-use of grazing 
permits by conservation organizations; (b) that a voluntary permit 
relinquishment automatically triggers the immediate permanent closure 
an allotment to livestock grazing when that closure would benefit 
conservation purposes; and (c) that at the request of the permittee, 
BLM will promptly initiate a planning process to determine whether the 
applicable land-use plan should be amended to provide that all or a 
portion of an allotment will be made unavailable for grazing authorized 
by FLPMA and PRIA. The comment stated that ``voluntary retirement'' of 
grazing permits is sometimes the fastest, simplest, most effective, and 
most amicable method of resolving disputes over livestock grazing in 
environmentally-sensitive areas.
    FLPMA directs BLM to develop and maintain land use plans to provide 
for multiple use of the public lands, including livestock grazing use. 
Land use plans, which are developed at the local office level with the 
involvement of the general public, identify lands available and not 
available for livestock use and management. In some land use plans, BLM 
can and does designate lands as not available for grazing, and assigns 
them to other uses. This results in reductions in land acreage 
available for grazing, and BLM acts under section 4110.4-2 to implement 
the reductions by canceling grazing preference.
    BLM amends or revises land use plans under the planning regulations 
(43 CFR part 1600) and the BLM land use planning handbook. An agreement 
on voluntary relinquishment of a grazing permit (and preference) for 
purposes of furthering a proposal to amend a land use plan to provide 
for the retirement of an area from livestock grazing is not a permanent 
contractual relationship between the entity relinquishing the permit 
and BLM. Even if BLM amends the land use plan and effectively retires 
the area from grazing for the immediate or foreseeable future, this 
action can be amended or reversed under subsequent BLM planning and 
decision processes.
    One comment stated that, in addition to the permittee or lessee, 
BLM also should give 2-year notification to any base property lien 
holder before canceling a permit or lease when the lands under the 
permit or lease will be devoted to a public purpose that precludes 
livestock grazing as stated in 4110.4-2(b) because this will ``level 
the playing field.''
    This suggestion is consistent with existing BLM policy to provide 
as a courtesy, upon request, notification to known base property lien 
holders of actions that may affect the value of that property. BLM does 
not believe, however, that it should require itself by regulation to 
provide lienholder notice in this circumstance. Lenders normally 
include provisions in their contracts with the borrower requiring the 
borrower to notify them of actions that will affect the value of their 
collateral.

Subpart 4120--Grazing Management

Section 4120.2 Allotment Management Plans and Resource Activity Plans
    We amended paragraph (c) of this section in the proposed rule to 
state BLM's internal procedural requirement more straightforwardly. The 
current rule provides that the decision document following the 
environmental analysis supporting proposed plans affecting the 
administration of grazing is considered a proposed decision for 
purposes of subpart 4160. This implies, but does not specify, that we 
must issue such decision documents following the procedures of section 
4160.1 on proposed decisions. The final rule merely makes it clear that 
we issue these decisions in accordance with the procedures in section 
4160.1.
    No public comments addressed the changes in this section, and we 
have made no changes in the final rule.
Section 4120.3-1 Conditions for Range Improvements
    In the proposed rule we revised paragraph (f) for clarity and to 
correct a citation to NEPA. No public comments addressed this section, 
and we have made no changes in the final rule.
Section 4120.3-2 Cooperative Range Improvement Agreements
    In the proposed rule we amended paragraph (b) to provide that, 
subject to valid existing rights, cooperators and the United States 
would prospectively share title to permanent structural range 
improvements constructed under cooperative range improvement agreements 
on public lands. Such structural improvements include wells, pipelines, 
and fences constructed on BLM-managed public lands. BLM and cooperators 
will share title to range improvements of public lands in proportion to 
the value of their contributed labor, material, or equipment to make 
on-the-ground structural improvements, subject to valid existing 
rights. This returns the provision on how title for improvements 
constructed under Cooperative Range Improvement Agreements is shared to 
the regulation in place before 1995. The current regulations provide 
that the United States has title to new permanent structural range 
improvements.
    Numerous comments opposed the change in section 4120.3-2 providing 
for shared title to permanent range improvements by BLM and the 
cooperators. One frequently expressed

[[Page 39459]]

concern was that a shared title creates potential ``takings'' issues if 
the need to change from grazing to some other land use in an allotment 
arises in the future. Comments asserted that a permittee or lessee with 
shared title to a permanent structure on public land would demand 
compensation for the lost value of his or her property if BLM proposed 
changes in the land use that would reduce or discontinue grazing in an 
allotment. Comments also stated that BLM would lack the funds needed to 
compensate the permittee, and would be unable to take the management 
actions needed to sustain rangeland health. Some comments stated that 
the provision for the United States to hold title to range improvement 
structures on public land was consistent with the TGA. One comment 
stated that sharing title to range improvements may make it more 
difficult to impose restrictions or modify grazing management because 
of these issues regarding regulatory takings and access to private 
property. A similar comment asserted that allowing shared title to 
range improvements gives away some of the public rights on public 
lands, making it more difficult for the public to redirect or 
reallocate the use of public lands as priorities change. The comment 
stated that public rights should not be ``given away'' and that they 
would have to be purchased back at a later date as circumstances 
change. Another comment questioned whether future rights or privileges 
to access ``titled'' range improvements will be conveyed to those 
holding the title that would not be extended to the general public. The 
comment requested that we clarify whether any priority would be 
conveyed to the ``titled'' holder for any land leases.
    BLM is choosing to share title to range improvement projects 
constructed in the future under Cooperative Range Improvement 
Agreements to encourage greater private investment in range 
improvements. This is not inconsistent with the TGA. Under the final 
rule, permanent structural range improvements will be jointly owned by 
the United States and permittees in proportion to their respective 
investments. The final rule provides operators an opportunity to 
maintain some asset value for their investments in range improvements, 
and thereby encourages private investments in them. However, an 
operator's interest in a permanent structural range improvement would 
not reduce BLM's ability to manage or obtain access to public lands. 
Sections 4120.3-1(e) and 4120.3-2(d), which are not changed in the 
final rule, provide that a cooperative range improvement agreement 
conveys no right, title, or interest in any lands or resources held by 
the United States, and does not confer upon a cooperator or permittee 
the exclusive right to use a range improvement or the affected public 
lands. Under these provisions, cooperative range improvement agreements 
would continue to include provisions that protect the interests of the 
United States in its lands and resources, and ensure BLM's management 
flexibility on public lands.
    Title to range improvements has no bearing on whether or to what 
extent BLM will allow access. Individuals would still have to seek 
authorization for access to maintain range improvements, whether they 
hold title to them or not. BLM gives no special privileges to 
``titled'' holders of range improvements.
    BLM disagrees that a joint title to range improvements creates 
``takings'' issues. The full extent to which permittees and lessees may 
be eligible for compensation is spelled out in the existing 
regulations. The existing regulations already assure that permittees 
and lessees are appropriately compensated for their investment in range 
improvements that can no longer be used because of government action. 
Section 4120.3-6(c) provides that ``whenever a grazing permit or lease 
is canceled in order to devote the public lands covered by the permit 
or lease to another public purpose, including disposal, the permittee 
or lessee shall receive from the United States reasonable compensation 
for the adjusted value of their interest in authorized permanent 
improvements placed or constructed by the permittee or lessee on the 
public lands covered by the permit or lease.'' The final rule does not 
change this requirement for compensation. The regulations do not 
address compensation for other types of cancellations. For example, 
there is no provision addressing compensation where permits are 
canceled for noncompliance. In another example, if a permittee or 
lessee voluntarily sells his property and interest, he may negotiate 
compensation with the new owner for the permittee's share of a range 
improvement title. However, BLM would not be a party to that 
transaction, except to decline to approve the transfer of the 
preference in the event that the new owner has not agreed to compensate 
the transferor, as described in section 4120.3-5.
    Some comments concluded that the change in section 4120.3-2 gives 
permittees and lessees exclusive title to new range improvements. Other 
comments opposed the change because, they asserted, it could create an 
interest in the land prohibited by the TGA. A related concern expressed 
by comments was that BLM would be unable to take the management actions 
needed to sustain rangeland health when range improvements were owned 
by permittees, and that BLM's authority to manage its grazing 
allotments would be limited. One comment took the opposite view that 
the change in the rules was not necessary, because the ranchers already 
have property rights on public lands.
    The rule change does not create an exclusive right, title, or 
interest in the public land, which is prohibited by the TGA. Section 
4120.3-2(b) specifically states that shared title to range improvements 
is ``[s]ubject to valid and existing rights.'' The regulations are 
equally clear on the creation or the existence of an interest in the 
land prohibited by the TGA. Holding a joint title to an improvement 
does not create a permittee interest in the public land, and will not 
limit BLM's ability to manage grazing allotments. Section 4120.3-1(e) 
states, ``A range improvement permit or cooperative range improvement 
agreement does not convey to the permittee or cooperator any right, 
title, or interest in any lands or resources held by the United 
States.'' Since the United States retains ownership of the land, and 
shares ownership of the improvements, BLM management actions would not 
be constrained by a permittee's interest in a range improvement.
    One comment asked whether BLM would have independent authority to 
remove, replace, or modify a structure, or if the cooperator's 
permission would be required. Another comment expressed concern that 
``sharing of titles on permanent structures'' may limit BLM's ability 
to implement effective conservation measures for sage-grouse, or to 
remove or modify structures, which may be negatively affecting sage-
grouse.
    Cooperative range improvement agreements (which allow installation 
of permanent structural range improvements) include provisions that 
protect the interest of the United States and its lands and resources. 
These provisions make it clear that the ownership of improvements does 
not confer exclusive right to the permittee or cooperator to use the 
improvement or the land affected by the range improvement work. Section 
4120.3-1(a) provides that range improvements are to be installed, used, 
maintained, and/or modified or removed in a manner consistent with 
multiple use management. BLM retains authority to

[[Page 39460]]

specify the design, construction, and maintenance criteria for the 
range improvement, and may require permittees or lessees to remove 
range improvements if they no longer help achieve land use plan or 
allotment goals and objectives.
    Joint title to permanent range improvements will not limit BLM's 
ability to take measures to protect sage-grouse. The Memorandum of 
Understanding (MOU) the BLM, Forest Service, and FWS signed with the 
Western Association of Fish and Wildlife Agencies (WAFWA) to conserve 
the greater sage-grouse and its habitat states our commitment to 
protect sage-grouse.
    Several comments noted that the changes would be inconsistent with 
common law or Forest Service regulations.
    Nothing in the TGA ``denies the Secretary authority reasonably to 
decide when or whether to grant title to those who make improvements.'' 
Public Lands Council v. Babbitt, 529 U.S. at 750. While we draw 
parallels between Federal and common law rules in explaining the 
rationale for existing section 4120.3-2, and note that the Forest 
Service had a similar policy, BLM is not obligated to accept common law 
rules or Forest Service statutes or policies in setting the terms for 
ownership of range improvements on public lands.
    One comment objected to joint title to range improvements because 
it would increase BLM's administrative burden.
    BLM disagrees that the proposed change will increase our 
administrative costs. BLM is currently obligated to record and track 
the value of contributions that cooperators provide for range 
improvements, including the imputed value of their labor. This is 
necessary under the current rules to meet our requirement that we 
reasonably compensate a cooperator if the permit or lease is canceled 
to devote public lands to another use or for other purposes. Thus, our 
administrative responsibilities will exist whether BLM shares the title 
to the improvement, or holds it solely in the name of the United 
States. Consequently, the shared title does not result in an additional 
administrative burden.
    One comment expressed concern about how joint title would affect 
Tribal consultation, cooperation, and coordination requirements and 
whether BLM is abdicating control of these responsibilities.
    BLM is responsible for consultation with the Tribes and will ensure 
that the required consultation occurs for all appropriate activities on 
public land. BLM does not believe that shared title with a cooperator 
for a range improvement is mutually exclusive with consultation. We 
again refer to section 4120.3-1(e), which states that establishing a 
range improvement does not convey any right, title, or interest in any 
lands or resources held by the United States. Under the final rule, BLM 
retains control of when and where improvements are installed, and other 
terms and conditions of the development (section 4120.3-1). Also, the 
cooperators' title and interest are limited to the proportion of 
structural improvements in which they invested. Considering these 
factors, cooperative range improvements should have no effect on Tribal 
consultations, BLM control of the land, or any Indian trust 
responsibilities.
    Several comments observed that evidence is absent or inconclusive 
that joint ownership of title to improvements encourages permittees to 
invest in further improvements, thereby improving range conditions, or 
increases the permittee's ability to secure a loan.
    State-by-state data on range improvements is shown in the EIS in 
Table 3.4.3.1. It is clear from the data that the number of new range 
improvements has declined since 1995 when the rule was last changed. 
The number has declined in every state with grazing on public land. The 
average decline is 38 percent. From 1982 to 1994, BLM authorized an 
average of 1,945 range improvements per year. From 1995 to 2002, we 
authorized an average of 1,210 per year. Several factors may be 
contributing, but it is reasonable to conclude that some of that 
decline may have been the result of the 1995 rule change. It is logical 
to assume that sharing title among cooperators and the United States 
provides the opportunity to maintain some asset value for investments 
made, thereby encouraging and facilitating private investment in range 
improvements. A permittee's or lessee's belief that sharing the title 
to improvements in which he invests contributes to stable ranch 
operations is also significant. Shared title to range improvements also 
provides an opportunity for permittees and lessees to document 
investment in their business enterprises, which is useful for securing 
business capital and demonstrating value of their overall private and 
public lands operations. Permittees and lessees perceive this 
recognition of investment as crucial to their business and, therefore, 
as an important factor when considering personal investment in range 
improvements. Beyond ranch economics, range improvements are tools for 
improving range conditions. Those benefits accrue to both public and 
private land and resource managers. BLM may enter into a cooperative 
range improvement agreement with any person, organization, or other 
government entity to develop range improvements. The shared title to 
such improvements is expected to serve as an incentive for all 
potential cooperators to participate and partner with BLM in the 
development of range improvements to assist in meeting management or 
resource condition objectives.
    Other comments were concerned that the impacts of shared title were 
not sufficiently analyzed, including the impact of increased wildlife 
use as range condition improves.
    BLM analyzes the anticipated impacts of shared title in the FEIS on 
pages 4-25, 4-31, 4-42, and 4-48. To the extent that shared title 
provisions will stimulate investment in range improvements intended to 
improve or enhance grazing management practices, or the quantity and 
quality of forage, BLM expects that such actions will result in 
improved habitat for wildlife. BLM considers improvement in wildlife 
habitat that may result from range improvements, and subsequent upward 
trend of overall watershed condition, to be benefits of the final rule. 
However, the nature of the regulatory change does not lend itself to 
broad analysis of the topic raised by comment. Anticipated impacts that 
may result from increased wildlife use because of improvements, 
regardless of whether they are constructed as a result of the shared 
title provision, will be analyzed under NEPA on site-specific basis as 
part of the preliminary work that precedes the construction of any 
range improvement.
    Some comments questioned the fairness of sharing title to 
improvements with permittees and lessees. They regarded the assignment 
of shared title as preferential treatment that is undeserved when terms 
and conditions of permits or leases are violated. One comment 
disapproved of shared ownership of improvements because they would be a 
constraint on other permittees or lessees in a common allotment.
    BLM's commitment to fairness is an important aspect of the joint 
title to range improvements. A permittee's or lessee's share of the 
title to a development in which he or she invests has no effect on 
BLM's administration of terms and conditions of the grazing permit or 
lease. Under section 4120.3-6(c), permittees and lessees are only 
compensated for the adjusted value of their interest in range 
improvements in

[[Page 39461]]

the event the permit or lease must be canceled to allow the land to be 
devoted to another purpose. There is no compensation if there is no 
remaining value of their interest in the improvement. BLM believes this 
is an equitable approach. If a permittee or lessee loses his grazing 
preference due to noncompliance with the permit or lease, there is no 
compensation for range improvements that remain on the allotment. 
However, he or she would be given the opportunity to remove 
improvements unneeded by BLM. The former permittee or lessee would also 
be responsible for restoration of the improvement site.
    Regarding common allotments, planning and implementation of range 
improvements on common allotments is an inclusive process involving all 
permittees or lessees authorized to graze in the allotment. As provided 
in section 4120.3-2(a), BLM enters into cooperative range improvement 
agreements to achieve management or resource condition objectives and 
does so through a collaborative process.
    One comment suggested that all range improvements, not just 
permanent improvements, should be eligible for shared title based on 
contributions of the cooperator.
    BLM currently allows title to temporary, removable range 
improvements installed under range improvement permits to be held by 
the permittee or lessee (section 4120.3-3). If the comment was 
suggesting that BLM should share title to non-structural improvements 
that cannot reasonably be removed from the land, such as a seeding or a 
prescribed fire treatment, BLM rejects this suggestion because it is 
impractical and would unduly complicate land administration. Where a 
cooperator permittee or lessee has contributed to an improvement that 
cannot be removed from the land, and BLM cancels the associated grazing 
permit or lease to devote the land to another public purpose that 
precludes livestock grazing, the permittee will be eligible for 
compensation for the adjusted value of their interest in the 
improvement, as documented in a cooperative agreement, under section 
4120.3-6(c) and Sec. 402(g) of FLPMA (43 U.S.C. 1752(g)). BLM will 
continue to hold 100 percent of the title to range improvements that 
cannot be removed from the land.
    One comment expressed concern about who would be liable if a public 
land user was injured in connection with a privately owned improvement.
    Based on our previous experience with joint Federal-private 
ownership, we do not recognize any liability issues that should be 
addressed in this rulemaking. Issues of liability generally are fact-
specific, and are best resolved on a case-by-case basis. Moreover, 
cooperative range improvement agreements will continue to include 
provisions that protect the interests of the United States in its lands 
and resources.
    One comment asked that we clarify agency and permittee 
responsibilities under the Endangered Species Act (ESA) and NEPA for 
shared range improvements. Another comment stated that if grazing 
permittees share title to range improvements, they may be accountable 
for any taking under ESA that occurs as a result of these improvements. 
Another comment stated BLM should consider and allow modification of 
range improvements if they are negatively affecting sensitive species. 
In addition, this comment stated that modification may be necessary to 
minimize the effects and ``avoid jeopardy to listed species.'' One 
comment stated that, at a minimum, the rule should make it clear that 
ESA section 7 consultation requirements and consideration of state-
listed or sensitive species would still be applicable to grazing 
activities.
    Additional clarification is not needed to set forth BLM's 
responsibility to consult with the appropriate service agency pursuant 
to the ESA when a discretionary BLM action triggers the application of 
the ESA. BLM will continue to fulfill the requirements for consultation 
in accordance with Section 7 of the ESA. Section 4120.3-1(f) provides, 
and will continue to provide, that ``proposed range improvement 
projects shall be reviewed in accordance with the requirements of 
[NEPA].'' The fact that a permittee holds a joint title with BLM for a 
range improvement has no effect on BLM's obligations under the ESA and 
NEPA.
    As part of NEPA analysis and the decision making process, BLM 
considers potential impacts of the range improvements to special status 
species (including listed species) and either avoids or mitigates them. 
Listed species are protected by the ESA. Therefore, BLM is obligated to 
make modifications as necessary to avoid jeopardy or to minimize 
incidental take as directed by the FWS or the National Marine Fisheries 
Service in a biological opinion.
    BLM expects individuals to take steps to ensure they are in 
compliance with the appropriate provisions of ESA. It is a prohibited 
act under section 4140.1(b)(2) for any person to install, use, 
maintain, modify, or remove range improvements on public lands without 
BLM authorization. If any person did such an act without BLM 
authorization and thereby violated the ESA, he or she would be liable 
for the applicable penalties for violations of the grazing regulations 
as well as those for any violation of the ESA.
    An additional comment suggested that BLM should retroactively 
provide for shared title to range improvements constructed under 
cooperative range improvement agreements after the 1995 rules changes 
took effect.
    The Department has declined to make the proposed change retroactive 
to 1995, since such retroactive changes have been discouraged by the 
Supreme Court (Bowen v. Georgetown University Hospital, 488 U.S. 204 
(1988)).
Section 4120.3-3 Range Improvement Permits
    We modified paragraph (c) in this section of the proposed rule to 
remove a reference to conservation use.
    We received two comments recommending that BLM authorize permanent 
range improvements under range improvement permits, noting that such 
permits are allowed under Section 4 of the TGA.
    Under Section 4 of TGA (43 U.S.C. 315), the Secretary has the 
authority to determine whether to issue permanent range improvements 
under range improvement permits or under cooperative range improvement 
agreements. BLM believes it is in the best interests of the public to 
authorize all permanent developments such as spring developments, 
wells, reservoirs, stock tanks, and pipelines under cooperative range 
improvement agreements to promote achievement of management and 
resource objectives. We have not adopted this recommendation in the 
final rule.
    We received an additional comment suggesting that BLM consult with 
all permittees associated with an allotment prior to approving 
nonrenewable use, and require cooperation from all permittees or 
lessees with the temporary operator.
    Under section 4130.6-2, which addresses nonrenewable grazing 
permits and leases, BLM is required to consult, cooperate, and 
coordinate with all affected permittees or lessees, as well as the 
state having lands or responsibility for managing resources within in 
the area, before issuing a nonrenewable grazing permit or lease. If BLM 
issues such a nonrenewable permit or lease, the preference permittee or 
lessee shall cooperate with the temporary authorized use of forage by 
another operator. BLM agrees that all preference permittees or lessees 
in an allotment

[[Page 39462]]

with temporary use authorized should be consulted and should cooperate. 
Therefore, we have amended section 4120.3-3(c) in the final rule by 
adding a cross-reference to the section 4130.6-2 requirement.
    One comment urged that we revise section 4120.3-3(c) to remove any 
reference to the permittee or lessee cooperating with a temporary 
authorized use of forage by another operator, stating that BLM should 
not have the discretion to allow someone other than an allotment's 
preference holder to graze in an allotment. Doing so, according to the 
comment, could cause conflict among BLM, the preference holder, and the 
temporary grazers.
    BLM needs the discretion to authorize grazing use on public lands 
when forage is available. We realize that there is potential for 
conflict, as the comment describes. In the final rule, we have 
rewritten Sec.  4120.3-3(c) to make it clear that BLM will consult with 
the preference operator before authorizing such use.
Section 4120.3-8 Range Improvement Fund
    We amended this section only to correct a misspelling. One comment 
objected to the correction, but provided no reason. We have made no 
changes in the final rule.
Section 4120.3-9 Water Rights for the Purpose of Livestock Grazing on 
Public Lands
    We proposed to amend this section by removing the requirement that 
livestock water rights be acquired, perfected, maintained, and 
administered in the name of the United States to the extent allowed by 
the laws of the states where the rights would be acquired. We made this 
change to provide BLM greater flexibility in negotiating arrangements, 
within the scope of state processes, for construction of watering 
facilities in states where the United States is allowed to hold a 
livestock water right. BLM continues to have the ability to acquire the 
water right to the extent allowed by state water law.
    We received many comments objecting to the change in the water 
rights provision. Most common were the general concerns that the 
proposed change communicated less commitment by the United States to 
hold the water rights on public land, which would result in more water 
rights in the name of permittees or others, complicating multiple use 
land management in a variety of ways. The identified complications 
included clouding title, hindering land exchanges and transfers of 
preference, encouraging takings claims by privatizing public resources, 
and devaluing public land. The over-riding concern of these comments 
was the supposed rejection by the proposed rule change of the 
fundamental connection of water to the land.
    We believe that the predicted complications that may be triggered 
by removing the requirement that water rights for livestock use be held 
in the name of the United States have a low probability of occurring. 
First, an increase in the number of water rights for livestock use on 
public lands held in the name of permittees or lessees is probable, but 
we believe it unlikely to compromise our ability to manage public lands 
effectively in accordance with FLPMA's requirement of multiple use 
management. Use of water on public land for wildlife, recreation, 
mining, and other uses will continue with rights for those uses usually 
in the name of the United States. By removing the requirement that 
water rights be acquired, perfected, maintained, and administered in 
the name of the United States, BLM may be in a position to negotiate 
better cooperative agreements, resulting in improved cooperation 
between BLM, states, and permittees and lessees. Second, ownership of 
water rights by permittees will have no effect on title to the land, 
since land remains in the ownership of the United States (section 
4120.3-1(e)). Third, complications in exchanges or preference transfers 
resulting from permittee ownership of water rights for livestock use 
could occur, although we do not expect them to be common. When they 
occur, they can often be resolved through negotiated settlements among 
all parties. Moreover, in most cases, BLM will not exchange or dispose 
of large tracts of the public lands; thus, private party ownership of 
water rights on these lands will have little impact. In addition, a 
transfer of preference would likely involve a transfer or sale of a 
permittee's base property or base water to a new permittee. A 
settlement would have to be reached between transferor and transferee 
on compensation for range improvements and water rights. BLM does not 
believe that the necessity for this type of agreement will hinder 
transfer. We disagree that private ownership of water rights on public 
lands will lead to successful takings claims. A water right is a 
property right that is distinct from title to the land managed by BLM. 
Land management decisions do not affect title to water. Finally, we 
disagree with the comment that the value of public land may be reduced 
if BLM does not control the water rights. The value of the land and the 
water right are two separate things. BLM also believes, however, that 
any such decrease will not affect our ability to manage the public 
lands.
    Several comments anticipated a loss of incentive to comply with 
grazing rules or consult and cooperate with BLM by permittees who own 
the livestock water rights.
    We disagree that this is likely to occur. Many water rights are 
currently held by permittees, or jointly owned with BLM, and we have 
not seen evidence that holding a water right discourages cooperation or 
compliance with terms and conditions of grazing permits. BLM's 
authority to take action under subparts 4140, 4150, and 4160 is not 
affected by the name in which the water right is held.
    Two comments observed that the proposed rule was inconsistent with 
laws governing water rights ownership on most state land, on land 
managed by the U.S. Forest Service, and on privately owned land.
    BLM agrees that there is inconsistency among the laws and policies 
governing water rights ownership in states and agencies throughout the 
country. For example, the BLM grazing program is guided by different 
laws, regulations, and policies than the Forest Service's program. 
Further, states assign water rights under different state laws, 
regulations, and policies. In this patchwork regulatory setting the 
flexibility afforded by the proposed rule will benefit BLM in 
cooperating with permittees and states. We believe that any 
inconsistencies are unlikely to interfere with BLM land management.
    Several comments questioned why permittees had any need for a water 
right that was associated with a water development. One asked why water 
right ownership would affect a permittee, as long as he had the water 
needed for his operation. Another said that water right ownership by 
the permittee was unnecessary now that the permittee has title of the 
water development. Another stated that the water right should be 
public, if BLM was investing public funds in the developments.
    Although many water rights for livestock use are associated with 
water developments, it is not always the case. Moreover, water rights 
are separate and distinct from water developments. The water right 
provides for appropriation of water for a specified beneficial use for 
a specified season of use according to the applicable state law. A 
cooperative range improvement agreement authorizes the development of 
and provides the terms, specifications, and

[[Page 39463]]

conditions for the construction, maintenance, or abandonment of a water 
development or other range improvements. The permittee or lessee and 
BLM share the cost of and title to the development; not all the funds 
used for a water development are public. Moreover, BLM does benefit 
from water developments, regardless of funding, because water 
developments improve grazing management and watershed conditions.
    One comment urged BLM not to implement the proposed change because 
it would encourage more livestock water developments to the detriment 
of wildlife.
    Ownership of water rights does not affect the approval of water 
developments. Further, BLM disagrees that encouraging more livestock 
water developments would harm wildlife. Water developments are 
constructed to improve grazing management and watershed condition. 
Before BLM authorizes a water development, the development is analyzed 
in accordance with NEPA. Such analysis will consider the development's 
impacts on wildlife, positive as well as negative, and the ultimate 
authorization would include the mitigation measures necessary to limit 
any negative impacts.
    Several comments stated that BLM should not acquire or retain water 
rights for livestock use on public lands.
    BLM disagrees with this statement as contrary to current and 
proposed regulations, and contrary to the intent of most state water 
laws to put water to beneficial use by the senior appropriator and 
claimant. Neither the current regulations nor this final rule prevents 
BLM from filing on water rights now or prospectively, or filing jointly 
with a permittee or lessee, when it is in the interest of good 
rangeland management, supports meeting the objectives of BLM land use 
and activity plans, and is in accordance with state law.
    One comment stated that the changes made in the BLM grazing 
regulations in 1995 that require livestock operators and BLM to use 
cooperative agreements to authorize new permanent water developments 
and direct the United States, if allowed by State water laws, to 
acquire livestock water rights on public lands, should be retained in 
the grazing rule.
    The final rule requires BLM to use cooperative range improvement 
agreements to authorize all new permanent water developments under 
section 4120.3-2(b). The intent of the rule is to provide greater 
flexibility to the United States in this regard.
    One comment recommended that BLM better explain its need to pursue 
water rights cooperatively with the permittee.
    Under the current grazing regulations, BLM must seek to acquire, 
perfect, maintain, and administer state-based livestock water rights in 
the name of the United States, to the extent allowed by state law. BLM 
therefore has little flexibility to seek alternative arrangements with 
permittees. We expect that the increased flexibility allowing 
cooperative pursuit of livestock water rights to stimulate greater 
permittee and lessee support for the development of additional water 
resources on public land in accordance with resource objectives found 
in BLM land use plans, allotment management plans, activity plans, and 
vegetation management plans. This will contribute to an overall 
beneficial effect on vegetation resources. Having determined that 
permittees and lessees can hold livestock water rights, BLM may be able 
to negotiate better cooperative agreements, resulting in improved 
cooperation among BLM, states, and permittees and lessees.
    One comment recommended that BLM discuss the environmental 
consequences to sensitive wildlife and plants if BLM were to retain the 
existing provision on water rights, that is, solely acquire livestock 
water rights from the state, without cooperatively sharing that right 
with a permittee or lessee.
    BLM has observed a significant decrease in the number of water-
related range improvements (especially reservoirs and wells) since 
adopting the existing regulations in 1995. It is widely recognized that 
water-related range improvements may be beneficial to sensitive 
wildlife and plants. One reason BLM is proposing to change the existing 
regulations is to provide an incentive for operators to install water-
related range improvements, and thereby potentially benefit sensitive 
wildlife and plants.
    Another comment stated that it is unclear whether BLM's ability to 
make changes in livestock management to protect sensitive wildlife, 
plants, and their habitat will be affected by the permittee or lessee 
having shared water rights.
    BLM's ability to make changes in livestock management to protect 
sensitive wildlife, plants, or their habitat will not be affected by 
permittee or lessee sharing ownership of livestock water rights. The 
current grazing regulations, at section 4130.3-3, provide BLM with 
authority to make changes to the terms and conditions of a grazing 
permit or lease when management objectives are not being met or when 
grazing does not conform to the provisions of subpart 4180 
(Fundamentals of Rangeland Health and Standards and Guidelines). This 
provision is not changed in the final rule. Permittee or lessee 
ownership of livestock water rights does not affect BLM's management 
discretion and authority.
    Many livestock water rights are currently held by permittees or 
lessees, or jointly owned with BLM. BLM has seen no evidence that 
holding a livestock water right discourages cooperation or compliance 
with the terms and conditions of grazing permits. Nor is there evidence 
that BLM's ability to enforce and administer other provisions of the 
grazing regulations is affected by a permittee or lessee holding a 
livestock water right.
    One comment recommended that BLM clarify its ability to control 
water at a spring if the water rights are shared with a permittee or 
lessee.
    Shared livestock water rights are not expected to impair BLM's 
ability to control water at a spring. In cases of jointly held water 
rights, water cannot be moved from the source without the consent of 
both owners, and neither owner can prevent usage of the water at its 
source by the other owner.
    Two similar comments stated it is extremely important for BLM to 
seek ownership of water rights where allowed by state law, and that if 
BLM authorizes a water development on public land, the associated water 
rights should belong to the public. One of the commenters stated that 
there is no more important resource for fish and wildlife in the arid 
west than water. A third comment expressed a variation of this concern.
    The BLM agrees that water is an important resource for fish and 
wildlife in the West. The proposed rule does not mean BLM will not seek 
ownership of livestock water rights when allowed by state law. Rather, 
the proposed revision will allow BLM increased flexibility to seek 
alternative approaches to ensuring that water developed on public lands 
can be used to benefit multiple uses, including wildlife uses. Use of 
water on public land for wildlife, recreation, mining, and other uses 
will continue with rights for those uses usually in the name of the 
United States.
    A comment asserted the need for BLM to have flexibility in 
cooperatively pursuing water rights with the permittee or lessee. The 
comment stated that we should make it clear whether under a cooperative 
water right BLM would have the senior water right.
    The increased flexibility provided by the final rule may stimulate 
greater permittee and lessee support for the

[[Page 39464]]

development of additional water resources on public land. These 
resources would be developed in accordance with resource objectives 
found in BLM land use plans, allotment management plans, activity 
plans, and vegetation management plans, contributing to an overall 
beneficial effect on vegetation resources. Agreeing that permittees and 
lessees can hold livestock water rights should enable us to negotiate 
better cooperative agreements, and in turn leading to improved 
cooperation between BLM, states, permittees, and lessees.
    Whether the United States holds a senior livestock water right in 
joint-ownership situations would depend upon individual circumstances 
and priority dates under applicable state water law. BLM's ability to 
negotiate the terms of joint ownership agreements with permittees is 
critical in being able to achieve acceptable settlement to avoid 
litigation of water rights and to enhance accomplishment of federal 
responsibilities in land management.
    One comment asked whether removing the provision that BLM can 
acquire livestock water rights would put the state in a position where 
it could prevent BLM from holding livestock water rights. The comment 
also asked whether this revised provision pertains only to livestock 
waters, or also to BLM filings for wildlife, fish, or instream flow.
    States control their water law procedures for granting, 
adjudicating, and administering livestock water rights, independent of 
the content of the Federal grazing regulations. Therefore, regardless 
of whether the existing regulations remain in place or whether the 
proposed rule is adopted, states may prevent BLM from holding livestock 
water rights. In fact, after 1995, when the grazing regulations were 
changed to require the United States to file for livestock water ``to 
the extent allowed by State law,'' two states--Nevada and Arizona--
enacted laws to prevent BLM from claiming livestock water rights.
    The grazing regulations address state water rights for livestock 
watering purposes, not other purposes. The regulations therefore do not 
affect other potential BLM filings, such as for fish, wildlife, or 
instream flow.
    One comment pointed out that BLM has authority and discretion to 
apply penalties for specific prohibited acts. The comment stated that 
BLM may withhold, suspend, or cancel a grazing permit, and recommended 
clarification of the effect of sharing water rights if BLM needs to 
impose a penalty for a prohibited act if the permittee had a shared 
livestock water right on that allotment. The comment stated that a 
state water right can be looked upon as a property right and asked 
whether this could make it difficult for BLM to transfer a canceled 
permit to a new permittee.
    BLM's authority and discretion to impose penalties for prohibited 
acts is independent of and unaffected by ownership of livestock water 
rights. BLM's authority to take action under subpart 4140 (Prohibited 
Acts), subpart 4150 (Unauthorized Grazing Use) and subpart 4160 
(Administrative Remedies) is not affected by the name in which the 
water right is held. Thus, when a permittee engages in a prohibited act 
that triggers BLM's authority to suspend or cancel the grazing permit 
(e.g., grazing in violation of the terms and conditions of the permit), 
BLM may take appropriate action, regardless of who owns the water 
right. Indeed, even where a permittee has sole ownership of a livestock 
water right, BLM's authority to issue a new permit is unaffected. 
(Contrary to the way the comment stated the question, BLM does not 
transfer a canceled permit. BLM would issue a new permit, which may 
have terms and conditions reflecting the availability of less water for 
watering livestock within the allotment if the former permittee 
retained the water rights, unless the new permittee has acquired the 
water rights from the former permittee). The suspended or canceled 
permittee may sell or otherwise transfer its water rights in the 
absence of its ability to make use of the water right by grazing on 
public lands.
    Another comment stated that it is unclear how cooperative water 
rights will affect BLM's ability to manage sensitive wildlife and 
plants on an allotment, and suggested that BLM management would become 
less flexible if water rights become cooperative.
    The proposed water right policy changes would have no effect on 
water resources as long as the water resources remain available for use 
on public land. Also, the changes in the final rule should have no 
effect on special status species, as the changes largely provide 
clarification of the existing regulations or bring regulations into 
compliance with court rulings.
    BLM does not anticipate significant impacts on special status 
species from the new livestock water rights policy for several reasons. 
First, the number of new water developments on which permittees would 
be able to claim livestock water rights will be very small relative to 
the total number of water sources on public land. Before such 
developments are constructed, BLM will analyze them under NEPA to 
identify potential impacts on special status species, and impose terms 
and conditions in the cooperative range improvement permit to protect 
those species. Current land use management plans, activity plans, 
grazing permits, right-of-way permits, and other land use 
authorizations govern the usage of water sources that have already been 
developed. They also govern usage of undeveloped water sources that 
provide livestock water. A claim for a livestock water right by a 
grazing permittee on existing undeveloped or developed water sources 
would not be capable of changing on-the-ground management at the source 
without explicit authorization from BLM.
    One comment stated that ``giving up'' water rights inhibits BLM's 
flexibility in making management decisions and has the potential for 
impacts on water resources.
    We disagree that BLM is ``giving up'' any of its water rights or 
its ability to obtain new water rights under state law. Moreover, the 
final rule will not result in less flexibility for water usage on 
public lands. In accordance with FLPMA's requirement of multiple use 
management, use of water on public land for wildlife, recreation, 
mining, and other uses will continue with rights for those uses usually 
in the name of the United States. Section 4130.3-3 provides BLM 
authority to make changes in the terms and conditions of a grazing 
permit or lease when it authorizes active use or a related management 
practice that does not meet management objectives or otherwise does not 
conform to the standards and guidelines established under subpart 4180. 
Usage of public lands is also subject to BLM land use authorizations, 
which contain appropriate terms and conditions to support continued 
multiple uses on public lands. Thus, the number of AUMs in a grazing 
permit or lease, or any other term or condition, is unrelated to the 
extent of state-granted water rights. Also, many livestock water rights 
are currently held by permittees, or jointly owned with BLM, and BLM 
has not seen evidence that holding a livestock water right discourages 
cooperation or compliance with terms and conditions of grazing permits.
    One comment expressed concern that, although the rule stipulates 
livestock water development, the holder of the water right could 
subsequently request a transfer of use for some other purpose. The 
comment stated that this policy sacrifices future public value and 
multiple use opportunities that water might provide, such as in-stream 
flows, wildlife habitat, and recreation use. The comment went on to say 
that allowing

[[Page 39465]]

private acquisition of a water right gives ownership of a public 
resource to a private entity in perpetuity, and concluded that, without 
landowner control of water, public benefit and associated land 
management opportunities will be severely restricted.
    States have control over their own water law procedures regardless 
of the content of Federal grazing regulations. The 1995 regulations 
acknowledged this control by directing the United States to acquire 
stock watering rights ``to the extent allowed by State law.'' Before 
1995, permittees were able to file joint water rights applications with 
the United States on livestock water sources.
    The concerns raised in the comment related to removing the 
requirement that water rights for livestock use be held in the name of 
the United States are unlikely to occur. An increase in the number of 
water rights for livestock use on public lands held in the name of 
permittees or lessees is probable, but unlikely to compromise BLM's 
ability to manage public lands in accordance with FLPMA's multiple use 
mandate. Use of water on public land for wildlife, recreation, mining, 
and other uses will continue with water rights for those uses usually 
in the name of the United States. By agreeing that permittees and 
lessees can hold livestock water rights, BLM anticipates that it will 
be able to negotiate better cooperative agreements, resulting in 
improved cooperation between BLM, states, and permittees and lessees. 
Ownership of water rights by permittees will have no effect on title to 
the land, since land remains in the ownership of the United States. 
Exchanges or preference transfers resulting from permittee ownership of 
water rights for livestock use could occur, although BLM does not 
expect them to be common. When they occur, they can often be resolved 
through negotiated settlements among all parties.
Section 4120.5-2 Cooperation With Tribal, State, County, and Federal 
Agencies
    We amended this section in the proposed rule by adding a new 
paragraph (c) adding state, local, and county-established grazing 
boards to those groups we routinely cooperate with in administering 
laws and regulations relating to livestock, livestock diseases, and 
sanitation. Field-level range improvement and allotment management 
planning programs will benefit from the additional perspective that 
locally established grazing advisory boards could provide.
    In the final rule, we have amended paragraph (c) to add Tribal 
grazing boards to the list of entities with which we are required to 
cooperate. We also modified the language in paragraph (c) to make it 
clear that BLM is required to cooperate only with Tribal, state, 
county, or local grazing boards that are established under government 
authority, as opposed to private organizations that assume the title 
``grazing board.'' In addition, we amended the heading of the section 
and the introductory text so that they refer to Tribal as well as the 
other government agencies.
    Many comments supported the addition of paragraph (c) to section 
4120.5-2. These comments gave a variety of reasons.
    A comment stated that the regulations should require agency 
cooperation with state, county, and local grazing boards, because the 
creation and use of such boards would give BLM land managers direct 
resource-related information from subject matter experts in the local 
areas, increasing our ability to devise appropriate strategies for 
managing public lands under the multiple-use mandate. Another supported 
the amendment because state and local governments and local citizens 
have more at stake in the health of the land in their area than does 
BLM. The comment said that where state and local governments have 
established grazing advisory boards to provide for the health and 
management of public lands in their jurisdiction, they should be given 
maximum opportunity to do so. Other comments supported the proposed 
provision because consultations between grazing boards and BLM 
officials will provide for improved working relations on issues of 
significant importance to all stakeholders, and the new provision also 
fulfills statutory and regulatory requirements for consultation, 
cooperation, and coordination. One comment stated that grazing advisory 
boards can be used to help resolve conflicts between the agency and 
allotment owners, while another said that local grazing advisory boards 
allow for more efficient use of agency resources and money.
    BLM intends cooperation with grazing boards to provide BLM land 
managers local resource-related information from subject matter experts 
in local areas, thus increasing BLM's ability to develop and recommend 
appropriate strategies in developing allotment management plans and 
planning range improvements. BLM agrees that cooperation with local, 
county, and state agencies, governmental entities, and grazing boards 
established by state, county, and local governments will help us in 
considering how best to apply land management practices and spend range 
improvement funds. Cooperation with all groups and individuals, 
including Tribal entities, to achieve the objectives of grazing 
management, is required in section 4120.5-1 of the existing grazing 
regulations. Existing policy and law provides for the consultation, 
cooperation, and coordination with these groups as well as others. BLM 
recognizes that these entities have a high stake in promoting healthy 
public lands in their areas. We therefore also intend the provision to 
direct BLM field managers to cooperate with state, county, and local 
government boards in carrying out the boards' functions. That is, we 
will participate in their meetings, provide information on request when 
it is legal and appropriate to do so, answer inquiries, provide advice, 
and generally interact with the boards in a cooperative manner. The 
amended regulations would formalize the role of grazing boards in 
providing input and helping to avoid and/or resolve conflicts between 
BLM and grazing permittees and lessees. However, it is not the intent 
of the regulations to confer upon any grazing board cooperating agency 
status.
    One comment stated that BLM should provide an opportunity for local 
collaborative groups to be creative and proactive in the management of 
local public lands. The comment added that private lands adjacent to 
the public lands--often the base property for permittees--are usually 
the most important habitat (for example, critical winter range) for 
many wildlife species.
    BLM agrees that informal collaboration with local publics is 
beneficial to management of public lands and recognizes that adjacent 
private lands and land and water base properties often provide 
important wildlife habitats, for the same reasons that historically 
these lands were more likely to have been homesteaded or otherwise 
converted from public domain to private ownership. Our regulations at 
sections 4120.5-1 and 4120.5-2 require us to cooperate with individuals 
and other local (along with Federal, state, and Tribal) entities, to 
the extent appropriate and consistent with the applicable laws of the 
United States, to achieve the objectives stated in the regulations. 
However, the only requirement added in section 4120.5-2 is that we 
cooperate with government and government-created boards, not informal 
citizen groups, in the administration of laws and regulations relating 
to livestock, livestock diseases, sanitation, and noxious weeds.

[[Page 39466]]

    Many comments opposed the addition of paragraph (c) to section 
4120.5-2. These comments also gave a variety of reasons.
    One comment stated that the provision gives the impression that 
grazing board concerns have greater weight than the interests of other 
groups. The comment said that the perspectives of these other groups 
can also be valuable to the BLM decisionmaking process. Others stated 
that it will reduce BLM's role as an independent land management 
agency, and that it will duplicate or supplant the current arrangement 
BLM has with, and will undermine the efforts of, the RACs.
    As a general matter, BLM considers the views of all stakeholders 
providing input into BLM's decisionmaking process, but will not be 
constrained in its management by input from grazing boards. This means 
that, assuming we have the manpower, we will attend their public 
meetings when invited, provide information when requested, and invite 
their input when appropriate. BLM will cooperate with the boards to 
facilitate their review of range improvements and allotment management 
plans on public lands, but we will retain our independent 
decisionmaking role.
    The role of the RACs is broader, in that it also encompasses input 
into and review of the standards and guidelines for grazing 
administration under subpart 4180. There may be some overlap among 
these groups in the discussion of grazing allotment management issues. 
Nevertheless, this input will be valuable to BLM, broadening 
perspectives as to the issues. As a result, we expect that our 
decisionmaking process will be more effective and our data will be more 
comprehensive. Of course, laws, regulations, policy, and a multitude of 
other factors also guide and direct BLM's decisionmaking process.
    A comment from a state wildlife management agency stated that 
specific language should be added to paragraph (c) to address 
appropriately the requirements for consultation with state wildlife 
management agencies called for in several Federal laws, including the 
TGA.
    Section 4120.5-1 requires BLM to cooperate, to the extent 
appropriate, with Federal, state, (including state wildlife management 
agencies), Tribal, and local government entities, institutions, 
organizations, corporations, associations, and individuals to achieve 
the objectives of the regulations in part 4100. Section 7 of the ESA 
requires formal consultation with FWS and/or NOAA Fisheries if a 
federally-listed species may be adversely affected due to a proposed 
action. Furthermore, the grazing regulations specifically require BLM 
to consult with states having lands or responsibility for managing 
resources within the area--
     Before adjusting allotment boundaries,
     Before apportioning additional livestock forage,
     Before implementing changes in active use,
     Before closing allotments or modifying grazing for 
immediate protection of resources,
     During the preparation of allotment management plans,
     Before revising or terminating allotment management plans, 
or issuing or renewing grazing permits or leases, including 
nonrenewable permits, and
     Before modifying the terms and conditions in permits or 
leases.
    No additional language is necessary in the grazing regulations to 
ensure coordination with state wildlife management agencies.
    One comment stated that paragraph (c) should be removed because 
many states, counties, and local areas do not have any established 
grazing boards. Another stated that it is not clear how these grazing 
boards are defined or established, nor what it would take for a grazing 
board to qualify as ``established.'' One comment stated that paragraph 
(c) was tantamount to the reestablishment of grazing advisory boards, 
the authority for which expired on December 31, 1985 (43 U.S.C. 
1753(f)).
    The establishment of grazing boards is at the discretion of state, 
county, and local governments, and is not required or authorized by 
BLM. This rule change formally recognizes the benefit of cooperating 
with existing and any future Tribal, state, county, or local 
government-established grazing boards in reviewing range improvements 
and allotment management plans. Each specific grazing board, or the 
governmental entity creating or authorizing it, determines the grazing 
board's establishment, internal organization, and role.
    One comment stated that BLM should include other groups and boards 
representing various public land resource interests in the local area 
(such as Tribal Associations) in section 4120.5-2(c), because many of 
these groups and agencies utilize BLM lands.
    In section 4120.5-2 of the grazing regulations, the authorized 
officer is required to cooperate, to the extent consistent with 
applicable laws of the United States, with the involved state, county, 
and Federal governmental agencies in administering certain laws and 
regulations. Section 4120.5-1 requires cooperation, to the extent 
appropriate, with Federal, state, Tribal, and local entities, as well 
as individuals, institutions, organizations, corporations, and 
associations to achieve the objectives of grazing management. 
Cooperation with grazing boards, where they exist, can give BLM land 
managers resource-related information from local subject matter 
experts, thus increasing our ability to develop appropriate strategies 
for managing grazing allotments and developing range improvements under 
the multiple-use mandate. We have added Tribal associations to 
paragraph (c) of section 4120.5-2 in response to the comments.
    One comment suggested that we expand the scope of paragraph (c) to 
require cooperation with local grazing boards as to other elements of 
rangeland management. The comment stated that these groups could assist 
with the resolution of such issues as conflicts between permittees and 
other users of the public lands and in designing monitoring programs.
    Tribal, state, county, and local government-established grazing 
boards are independent entities, set their own agendas, select their 
own members, and determine the level of their interest in reviewing 
allotment management plans and range improvements. Under this rule, BLM 
will not establish, sanction, or direct the function of grazing boards. 
BLM's role, as identified in the grazing regulations, is to weigh any 
input from the grazing boards as well as from others as we consider 
allotment management plans and range improvements. Under section 
4120.5, BLM coordinates with Federal, state, Tribal, and county 
government entities and RACs on a wide variety of public land 
management issues and proposed actions.
    One comment stated that grazing boards should be consulted but 
should remain autonomous from RACs, as provided in the TGA. Another 
stated that grazing boards comprised of members of the general public 
may have personal concerns or pet issues that should not affect BLM 
management practices.
    Under the proposed grazing regulations, grazing boards established 
by state, county, and local government and RACs will remain as distinct 
organizations. The grazing advisory boards referred to in the TGA were 
terminated in 1974 in accordance with Section 14 of the Federal 
Advisory Committee Act of 1972 (5 U.S.C. App. 1), and should not be 
confused with the grazing boards in the proposed grazing regulations. 
These grazing boards are

[[Page 39467]]

neither established nor sanctioned by BLM. Partly in response to the 
confusion and concerns demonstrated by these comments, we are amending 
paragraph (c) in the final rule to add the word ``government'' after 
the word ``local.'' This should make it clear that the grazing boards 
referred to in the provision with which BLM must cooperate in 
administering livestock laws are only those created or sanctioned by 
state, county, Tribal, or local government entities.
    One comment suggested that only affected permittees, and not 
individuals from other locations, should be consulted regarding section 
4120.5-2, ``Cooperation with State, county and Federal agencies.''
    That section addresses cooperation with Tribal, state, county and 
Federal agencies and thus does not include a consultation requirement 
with the interested public, that is, individuals. The section does 
require BLM to cooperate with Tribal, state, county, and other Federal 
agencies regarding the administration of laws and regulations related 
to livestock, livestock diseases, sanitation, and noxious weeds. No 
changes were made in the final rule as a result of this comment. BLM 
believes it is important to continue to work cooperatively with other 
governmental authorities regarding the administration of laws and 
regulations related to livestock, livestock diseases, sanitation, and 
noxious weeds.
    One comment expressed concern that the rule may lead to 
inconsistency and inefficiency between BLM and the Forest Service in 
the areas of water rights, management of ``federal trust'' resources, 
range improvement ownership, temporary nonuse, prohibited acts, the 
definition and role of the interested public, and the ability of the 
agencies to ensure that fish and wildlife are managed in a sustainable 
manner across administrative boundaries. One comment stated that, 
although the FWS is not specifically mentioned in the FEIS, 
consultation with the Service should occur as required under Section 
7(a)(2) of the ESA (50 CFR 402.14).
    BLM will coordinate and consult with the Forest Service and state 
agencies when administering the grazing program. Consistency with the 
Forest Service regulations, though desirable at times, is not necessary 
for implementing effective rangeland management practices. Specific 
inconsistencies between the regulations and policies of BLM and the 
Forest Service related to fish and wildlife resources have not been 
identified. In general, however, inconsistencies continue to exist 
largely because the two agencies have different statutory requirements 
that govern their regulations and policies. However, nothing in the 
proposed revisions will preclude BLM and the Forest Service from 
working across administrative boundaries to manage fish and wildlife in 
a sustainable manner.
    BLM consults with the FWS when an evaluation of a discretionary 
action results in a determination that there may be an effect on an 
endangered species. Although BLM coordinated with the FWS on various 
aspects of the rule, ultimately BLM concluded that the rule will have 
no effect. Consultation under Section 7(a)(2) of the ESA is not 
required under 50 CFR part 402 on an action that has no effect on an 
ESA-listed species.
    One comment referred to an MOU that BLM, the Forest Service, and 
the FWS signed with WAFWA to conserve the greater sage-grouse and its 
habitat. The comment stated BLM should consider the commitments of the 
MOU in the proposed revisions to grazing regulations.
    The WAFWA MOU outlines the roles of state and Federal partners 
throughout the 11 Western States in conservation of the currently-
occupied range of the sage-grouse. Our commitments under this MOU are 
compatible with grazing management. Under the MOU, BLM will continue to 
coordinate with the states and local working groups to develop state 
and local conservation strategies. The administrative changes in the 
final rule will have no effect on this coordination commitment. In 
addition, and to complement the WAFWA MOU commitments, BLM released the 
National Sage-Grouse Habitat Conservation Strategy in 2004. This 
strategy describes agency actions necessary to conserve the sage-grouse 
and its habitat on BLM land, and includes a detailed timeline of 
actions that BLM is implementing through agency directives. The grazing 
rule amendments will have no effect on BLM's implementation of the 
sage-grouse strategy.
    One comment urged BLM to include the FWS among the entities it must 
consult before changing grazing allotment boundaries under 43 CFR 
4110.2-4.
    Where a proposal to undertake a discretionary action under the 
grazing regulations, such as designating or adjusting an allotment 
boundary under 43 CFR 4110.2-4, triggers ESA consultation requirements, 
BLM will meet those requirements. However, BLM does not believe it 
appropriate to list in its grazing regulations all instances where 
discretionary action taken under the regulations may trigger ESA 
consultation.
    One comment encouraged BLM to consider how the rule would affect 
the ability of local sage-grouse working groups to implement 
conservation actions for this species.
    The working groups and their commitments are outlined in the WAFWA 
MOU, and are unchanged by the proposed regulations. Site-level 
decisions remain within the purview and discretion of BLM field 
offices, and address sage-grouse habitat needs in an allotment-level 
assessment process outlined in the existing regulations, using local 
working group recommendations. BLM's ability to identify and react to 
sage-grouse habitat needs will not be affected by the proposed 
administrative adjustments of the grazing regulations.
Section 4130.1-1 Filing Applications
    In the proposed rule, we moved the provisions on determining 
satisfactory record of performance from section 4110.1 to section 
4130.1-1 on filing applications, where they more logically fit. We also 
amended the provisions to clarify the factors that we take into account 
in determining whether an applicant for a new permit has a satisfactory 
record of performance. The rule deems applicants for issuance of a new 
permit or lease to have a satisfactory record of performance if:
    1. The applicant or affiliate has not had a Federal lease canceled 
within the previous 36 months;
    2. The applicant or affiliate has not had a state lease canceled, 
for lands in the grazing district where they are seeking a Federal 
permit, within the previous 36 months; or
    3. The applicant or affiliate has not been legally barred from 
holding a Federal grazing permit or lease by a court of competent 
jurisdiction.
    One comment urged BLM not to adopt the proposed rule provision 
regarding satisfactory record of performance, stating that the proposed 
wording is an attempt to show favoritism to someone with past recent 
violations that did not occur on the allotment for which the applicant 
is applying. Another comment stated that permittees could avoid 
violations by timing applications to particular grazing allotments 
where they had not committed a violation in the last 3-year period.
    The changes made provide consistent direction on what constitutes a 
satisfactory record of performance. Determining a satisfactory record 
of performance is not limited to grazing permit or lease violations on 
the particular allotment for which an

[[Page 39468]]

application is being made. Section 4130.1-1(b)(2)(i) states that the 
authorized officer will consider applicants for a new or transferred 
preference to have a satisfactory record of performance when the 
applicant has not had any Federal grazing permit or lease canceled for 
violation of the permit or lease within the 36 months preceding the 
date of application.
    One comment suggested that BLM should subject a permit applicant 
who has a poor management record to a public hearing as part of its 
process for determining whether the applicant has a satisfactory record 
of performance. The author of the comment stated that legitimate users 
of the land do not need to have someone who is known to ignore good 
range management standards abusing the land or BLM's staff, and added a 
request for open hearings so that the public interest could be heard.
    BLM will determine whether applicants for renewal or issuance of 
new permits and leases and any affiliates have a satisfactory record of 
performance. BLM agrees that a poor operator who abuses public land is 
detrimental to sound land management. BLM will not approve such renewal 
or issuance unless the applicant and all affiliates have a satisfactory 
record of performance, as provided in section 4130.1-1(b). BLM does not 
believe that any useful purpose would be served by including a public 
hearing as part of the process of determining whether an applicant for 
a permit or lease has a satisfactory record of performance. If rejected 
applicants appeal BLM's decision to deny them a permit or lease based 
on an unsatisfactory record of performance, they would have the right 
to a hearing of their appeal before an Administrative Law Judge under 
43 CFR part 4, which would be open to the public.
    Several comments urged BLM to remove section 4130.1-1(b)(2)(ii), 
stating that cancellation of a state grazing permit should not be 
grounds for determining that a permittee or applicant has an 
unsatisfactory record of performance. The comments stated that some 
state rules go beyond practices directly related to livestock grazing. 
Another comment stated that the provision exceeds BLM's authority under 
Section 302(c) of FLPMA (43 U.S.C. 1732(c)).
    The provision in question provides standards for determining that 
an applicant has a satisfactory record of performance. BLM will find a 
record of performance satisfactory if the applicant has not had a state 
permit or lease of lands within the allotment for which the applicant 
seeks a Federal authorization, canceled for violation of its terms or 
conditions within the preceding 36 months. Note that the threshold in 
the regulations is cancellation, in whole or in part, for violation of 
the state permit or lease rather than for other reasons under state 
law, such as cancellation because the state declines to issue permits 
for the particular time or land or the state has disposed of the land. 
Section 302(c) states that any ``instrument'' authorizing the use of 
public lands shall include a provision authorizing BLM to revoke or 
suspend the instrument upon a final administrative finding of a 
violation of any term or condition of such instrument. Section 302(c) 
does not limit the scope of what BLM may require of an applicant.
    One comment requested BLM to clarify whether a person has a 
satisfactory record of performance if he is damaging the public lands, 
but has not had a Federal permit or lease canceled, has not had a state 
permit or lease canceled on the pertinent allotment, and has not been 
barred from holding a Federal permit or lease by a court of competent 
jurisdiction. On the other hand, another comment stated that requiring 
a permittee to apply for renewal will increase the importance of the 
performance review in the renewal process, but could lead to using the 
performance review as an excuse not to renew a permit.
    BLM will consider the question whether a person is damaging the 
public lands in determining whether he is in substantial compliance 
with the terms and conditions of his permit or lease and with the 
regulations applicable to the permit or lease. Whether or not there has 
been a cancellation, BLM may find a permittee not in substantial 
compliance with permit or lease terms and conditions or with the 
regulations, and consider this finding in determining whether to renew 
the permit or lease. BLM will also consider whether the lack of 
substantial compliance was due to circumstances beyond the control of 
the permittee or lessee.
    One comment suggested that section 4130.1-1(b)(2) also provide that 
a party would not be considered to have a satisfactory record of 
performance if he--
    (1) Obstructs public access to public lands;
    (2) Grazes livestock after the end of the grazing period;
    (3) Removes water sources used by wildlife; or
    (4) Poaches or kills wildlife.
    A permittee or lessee who does things like those listed in the 
comment may be found not in substantial compliance with the terms and 
conditions of the permit or lease, and thus not to have a satisfactory 
record of performance.
    One comment stated that BLM should change its qualifications to 
receive a grazing permit so that applicants with a criminal background 
are barred from getting a permit.
    We have considered the comment and decided that it would be 
impractical for BLM to bar applicants with a criminal background from 
getting a grazing permit, unless the criminal conviction was directly 
related to the loss of a Federal or state grazing permits or leases due 
to violations, or the applicant was barred from holding a Federal 
grazing permit or lease by a court of competent jurisdiction as 
provided in the final rule in section 4130.1-1 et seq. Furthermore, it 
is not Federal or BLM policy to prevent a person who has been convicted 
of a crime, served his sentence, and been rehabilitated, from obtaining 
gainful employment.
    One comment stated that BLM should consider increasing the 
``statute of limitations'' on conditions for having a satisfactory 
record of performance in section 4130.1-1(b)(2) to more than 3 years.
    The 36-month period has been in the regulations since the 
requirement to have a satisfactory record of performance was added in 
the 1995 rule. We have no evidence that this threshold is not working, 
and have not changed it in this final rule.
    In the proposed rule we invited comments on whether we should 
require an application for renewal of a grazing permit or lease (68 FR 
68456). Several comments addressed this issue.
    Several comments urged BLM to change section 4130.1-1(a) to provide 
that only new applicants for grazing permits or leases need to submit a 
formal application, so that it is clear that the holder of an expiring 
10-year term permit or lease does not have to submit a formal 
application for renewal of that permit or lease. These comments stated 
that Section 402(c) of FLPMA provides that, so long as the lands under 
the permit or lease remain available for livestock grazing, the holder 
of the expiring permit has complied with applicable regulations and 
accepts the terms and conditions of the new permit or lease, the holder 
of the expiring permit must be given first priority for receipt of the 
new permit or lease. They offered several policy reasons for not 
requiring preference holders to reapply for permits every ten years, 
stating that requiring such applications would allow the agency too 
much discretion; be used by environmental groups as tools to

[[Page 39469]]

force review of environmental conditions on allotments; consume agency 
resources; burden permittees and lessees; increase the importance of 
performance reviews and perhaps lead to using the performance review as 
an excuse to deny a new permit; have allowed or will allow agency 
personnel to use the lease renewal process to extract inappropriate 
concessions from, or impose inappropriate requirements, on permittees 
and lessees on environmental and other issues. They stated that FLPMA 
allows a preference holder the right to renew. One contended that, if 
grazing allotments are designated in the land use plan, they should not 
be considered discretionary activities requiring periodic review before 
renewal.
    One comment, however, felt that permittees and lessees should 
submit an application for renewal when their permits or leases expire. 
It stated that the renewal application should be thoroughly reviewed by 
BLM before a decision is made to renew.
    The first group of comments is correct in that BLM must give the 
holder of an expiring permit or lease priority for receipt of a new 
permit or lease, so long as the conditions of Section 402(c) of FLPMA 
are met. However, there is administrative utility in requiring 
application for the renewal of an expiring permit or lease. Therefore, 
we have not adopted this suggestion in the final rule. The regulatory 
text does not explicitly require an application, but by referring to 
``the applicant'' it implies the requirement. Submitting a permit or 
lease renewal application by the holders of an expiring permit or lease 
documents their interest in their continued use of the permit or lease 
and that they are aware that their permit or lease will be expiring and 
must be renewed. Submitting an application for renewal also allows an 
opportunity for the holders of the expiring permit or lease to apply 
for changes in its terms and conditions that they may desire, and 
provides them certainty under the APA (5 U.S.C. 558 (c)(2)) as to 
continued use of their permit or lease in the event that its renewal is 
delayed due to BLM's inability to process the application in a timely 
manner. The application will also be a useful element of the 
administrative record.
    A comment stated that BLM should not renew grazing permits when 
they expire. Ranchers should not be allowed to graze cattle for 
personal gain on public land.
    The TGA, FLPMA, and other laws authorize grazing on public land for 
private business purposes.
Section 4130.1-2 Conflicting Applications
    In the proposed rule we made no changes in this section, which 
provides for how we resolve the situation when more than one qualified 
applicant seeks a permit or lease for grazing use of the same public 
lands or where additional forage or acreage becomes available. However, 
questions raised in comments indicated a degree of confusion as to the 
meaning of one paragraph of this section, and suggested that we should 
change the wording for purposes of clarification.
    Section 4130.1-2(d) provides that when BLM must decide among 
conflicting applicants who is to receive grazing use, it may consider, 
along with the several other factors listed in this section, ``[p]ublic 
ingress or egress across privately owned or controlled land to public 
lands.'' Several comments stated that BLM should remove paragraph (d) 
because ``[p]ublic access across private lands should be given 
voluntarily and never become a condition for consideration by BLM under 
any part of these regulations.''
    This provision first appeared in the regulations (Grazing 
Administration--Outside Grazing Districts and Exclusive of Alaska) in 
1968, in the following form:

    4121.2-1(d)(2) The Authorized Officer will allocate the use of 
the public land on the basis of any or all of the following factors: 
(i) Historical use, (ii) proper range management and use of water 
for livestock, (iii) proper use of the preference lands, (iv) 
general needs of the applicants, (v) topography, (vi) public ingress 
and egress across preference lands to public lands under application 
(where access is not presently available), and (vii) other land use 
requirements.

    Paragraph (d)(2)(vi) included a footnote that stated, ``Where the 
United States obtains such a right-of-way, it will assume 
responsibility therefore to the full extent authorized by law.'' The 
major rewrite of the regulations in the mid-1970s combined the 
regulations for inside and outside grazing districts. The provision in 
the current regulations is a ``carry over'' from the Section 15 grazing 
lands regulations. The regulation in its original form does in fact 
direct that, all other factors being equal, if there were several 
applicants for use of a specific tract of public land, and one 
applicant offered public access across their base property to the 
public lands and the others did not, we would choose the applicant that 
did, and obtain and manage a right-of-way across their lands. BLM 
obtains public ingress and egress across the successful applicant's 
base property and the successful applicant receives a grazing permit or 
lease, so that both parties benefit.
    We may consider changing this provision in a future rulemaking 
exercise.
    Other comments suggested that we amend the introductory text of 
section 4130.1-2 to provide that applicants with preference have 
priority for receipt of increased available forage, rather than that 
preference is treated co-equally with the other factors listed in 
paragraphs (a) through (h) of the section.
    Priority for preference holders in apportioning additional forage 
is already required by section 4110.3-1. It is unnecessary to restate 
this priority in this section. This section, however, directs BLM to 
consider the other factors in addition to preference, to resolve 
conflicts among applicants with preference.
Section 4130.2 Grazing Permits and Leases
    In the proposed rule, we revised paragraph (a) in this section to 
make it clear that the grazing permit or lease, as distinguished from 
other documents such as a grazing fee billing, is the document BLM uses 
to authorize grazing use for those who hold grazing preference on BLM-
managed lands. 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 sections 4130.5 and 4130.6.
    We removed the phrase ``types and levels of use authorized'' from 
paragraph (a) and replaced 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 removed the term ``conservation use'' from 
this paragraph for reasons stated in the discussion of section 4100.0-
5.
    We also removed the requirement in paragraph (b) that BLM consult, 
cooperate, and coordinate with the interested public prior to the 
issuance or renewal of grazing permits and leases. Comments and 
responses to this change can be found in the discussion of section 
4100.0-5 as well as below.
    We added a provision to paragraph (f) that requires BLM and the 
permittee or lessee to sign the permit or lease in order to validate 
it.
    We revised the provisions in paragraphs (g) and (h) on temporary 
nonuse and moved them to section 4130.4, which contains provisions for

[[Page 39470]]

authorization of temporary changes in grazing use in order to clarify 
the regulations. We removed all references to conservation use. Other 
changes to provisions on temporary nonuse are described in the 
discussion of that section.
    Some comments stated that the amendment of this section for the 
purpose of clarifying that the grazing permit or lease is the document 
that BLM uses to authorize grazing creates an unnecessary burden on BLM 
to prepare NEPA analysis before issuing a permit or lease. The comment 
stated that grazing use on public lands is authorized by the land use 
plan coupled with grazing preference, and that therefore NEPA analysis 
is not necessary when issuing a permit or lease.
    The Taylor Grazing Act directs BLM to authorize livestock grazing 
through a permit or lease. NEPA requires site-specific analysis of 
impacts before an agency can authorize activities on public land. Most 
land use plans do not meet site-specific NEPA analysis requirements for 
issuing permits or leases on individual allotments.
    A comment suggested that BLM should not state that the grazing 
permit or lease is the only document that authorizes grazing use 
because each year BLM may approve applications for grazing use under 
terms and conditions that do not exactly match the terms and conditions 
listed on the grazing permit or lease. Therefore, the comment went on, 
BLM should also consider the approval of such an application as a 
grazing authorization. BLM also should require proof of payment of 
grazing fees before allowing grazing.
    The TGA directs BLM to authorize livestock grazing through a permit 
or lease. FLPMA provides that a grazing permit or lease will have a 10-
year term with certain exceptions. BLM evaluates permits and leases 
before it issues them pursuant to its obligations under NEPA and its 
land use planning regulations. One outcome of this process is permit or 
lease terms and conditions of grazing use that are compatible with 
achieving multiple-use management objectives specified in BLM land use 
plans. The grazing regulations require that terms and conditions of 
permits and leases include, as a minimum: The allotment(s) to be 
grazed, the number of livestock, the period of use, and the amount of 
forage to be removed. Since forage growth and livestock operation needs 
can change slightly from year to year, BLM allows or requires adaptive 
minor adjustments in the number of livestock, use period, and amount of 
forage, so long as the adjustments are within the terms and conditions 
of the permit or lease and accord with applicable land use plans. These 
adjustments are documented by BLM case records, decisions, and grazing 
fee billings/payment records. Such adjustments become a part of the 
term grazing permit or lease for the period the adjustments are in 
effect. However, the term permit or lease is the document that 
authorizes the grazing use, not the application and paid grazing fee 
bill.
    Another comment suggested that grazing permit changes that do not 
affect the environment or change the terms and conditions of a permit, 
but only involve paper changes such as a transfer, should not be 
subject to NEPA, or at most should only involve a categorical 
exclusion.
    Addressing whether the issuance of a permit or lease that is a 
result of a preference transfer and that is substantially unchanged 
from the immediately preceding permit or lease should be subject to 
NEPA is not within the scope of this rulemaking. In a separate effort 
to streamline permitting processes, BLM is reviewing its current list 
of actions that are categorically excluded and examining whether a 
permit or lease that meets specific criteria also should be 
categorically excluded.
    Some comments suggested that a requirement for consultation, 
cooperation, and coordination with permittees or lessees should be 
reiterated at section 4130.2(f) in order to emphasize the importance of 
consultation regarding permit or lease terms and conditions.
    While we recognize the importance of coordinating with permittees 
and lessees when developing terms and conditions, there is no need to 
restate this requirement because it is redundant. The requirement for 
consultation, cooperation, and coordination with affected permittees or 
lessees before issuing or renewing grazing permits and leases is 
already provided for at section 4130.2(b).
    Numerous comments expressed displeasure with any reduction in the 
role of the interested public, and many cited the issuance or renewal 
of permits and leases as specific instances where the rule should not 
be changed. These comments stated that the issuance of a grazing permit 
or lease was a significant decision worthy of extensive public 
involvement. Comments also argued that reliance on NEPA's public 
participation opportunities was not sufficient, due to the backlog of 
grazing permit environmental assessments and the recent history of 
special legislation authorizing renewals without traditional NEPA 
compliance. Other comments supporting the rule described the grazing 
permit or lease as the decision that has suffered the most inefficiency 
because of the interested public consultation requirements. Some argued 
that grazing permits and leases should be processed in a timely manner 
and only BLM and permittees and lessees should be directly involved in 
this process.
    BLM issues or renews an average of nearly 2,000 permits and leases 
each year, and, thus, we view these as day-to-day grazing management 
decisions. Permits and leases implement decisions made in land use 
plans, allotment management plans and other grazing activity plans--
decisions made with significant public input. Many of the comments 
requesting continued interested public consultation actually raised 
broad allocation issues (i.e., whether grazing should occur at all) 
that would properly be addressed in a land use plan rather than at the 
permit issuance stage. There currently is a backlog of grazing permits 
requiring final NEPA compliance. BLM is working hard to eliminate this 
backlog as soon as possible. Under current funding levels, BLM is 
scheduled to complete full NEPA processing of all permits and leases by 
2009. Although timely NEPA participation may be temporarily delayed for 
some permits, the interested public will ultimately have the 
opportunity to participate in the NEPA process. If BLM contemplates any 
changes in levels of grazing use or in permit or lease terms and 
conditions, we will provide the interested public an opportunity to 
review and provide input during the preparation of any evaluation or 
other reports that the authorized officer may use as a basis for such 
changes. Such reports may include monitoring reports, evaluations of 
standards and guidelines, BAs or BEs, and any other formal evaluation 
reports that are used in the decisionmaking process. Also, the 
interested public will be notified of proposed decisions and retains 
the option to protest before a decision is final. This level of 
participation should achieve a balance that utilizes public input while 
allowing for timely processing of permits and leases. No changes have 
been made in the final rule.
    One comment stated that BLM should not grant priority for renewal 
of permits and leases to permittees and lessees who hold expiring 
permits and leases unless they, in addition to meeting the other 
criteria found at section 4130.2(e), have a satisfactory record of 
performance. This would make section

[[Page 39471]]

4130.2(e) consistent with the proposed rule at section 4130.1-1(b) and 
(b)(1).
    The existing regulations in section 4130.2(e)(2) require, under 
Section 402(c)(3) of FLPMA (43 U.S.C. 1752(c)(3)), that the permittee 
or lessee be in compliance with the rules and regulations and the terms 
and conditions in the permit or lease to have first priority for a new 
permit or lease. This provision is very similar to language at section 
4130.1-1(b)(1)(i) that addresses satisfactory performance. We 
determined that the language in this final rule is adequate.
    Another comment suggested that BLM should remove the requirement 
that acceptance of terms and conditions of a new permit or lease is 
required of holders of expiring permits and leases in order for them to 
receive priority for receipt of the permit or lease. It stated that 
this requirement is redundant to the statement that ``a permit or lease 
is not valid unless both BLM and the permittee or lessee have signed 
it,'' and that it is also an inappropriate condition upon which to base 
priority for renewal of a permit or lease.
    We have determined that retention of section 4130.2(e)(3) reflects 
criteria established in Section 402(c)(3) of FLPMA regarding priority 
to receive new permits and leases.
Section 4130.3 Terms and Conditions
    We added a new paragraph (b) to this section in the proposed rule 
specifying 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, or the terms and conditions 
pertain to a permit or lease for grazing use of additional acreage 
under section 4110.4-1. We gave an example of terms and conditions that 
would be exempt from administrative appeal to OHA, namely those 
mandated by a biological opinion (BO) issued under the ESA. We also 
added paragraph (c) providing that if terms and conditions are stayed, 
BLM could authorize grazing use in accordance with section 4160.4. By 
adding this language, we sought 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. In this final rule, 
we have removed the example of terms and conditions that are exempt 
from appeal presented at section 4130.3(b)(1). The proposed example was 
based on a policy articulated in two Secretarial memoranda, and those 
memoranda address the issue adequately.
    Some comments objected to the exemption from appeal for those terms 
and conditions resulting from a biological opinion. In cases where a 
biological opinion (BO) is the basis for additional terms and 
conditions in a grazing permit or lease, they stated that the affected 
permittee or lessee should be able to appeal those additional terms or 
conditions that are based on the biological opinion. They asserted that 
in those cases, as may be necessary for a full and true disclosure of 
the facts, where the BLM authorized officer's decision rests, in whole 
or in part, on a material fact not appearing in the agency's record, 
such as the material constituting a BE, BA, or biological opinion, the 
affected permittee should be entitled to an opportunity to rebut such 
fact.
    Currently, terms and conditions required in a BO, as well as 
implementation of a reasonable and prudent alternative if required in 
the BO, are the only terms and conditions not subject to OHA review. 
This exclusion from OHA review is based on Secretarial memoranda dated 
January 8, 1993, signed by Secretary Lujan, and April 20, 1993, signed 
by Secretary Babbitt. It has thus been the policy of the Department of 
the Interior that the Office of Hearing and Appeals (OHA) does not have 
the authority to review BOs issued under Section 7 of the ESA. Under 
these Secretarial memoranda, if BLM decides to implement a reasonable 
and prudent alternative set forth in a FWS BO, or if BLM implements the 
mandatory terms and conditions of a BO, OHA is not entitled to ``second 
guess'' the FWS findings in the guise of reviewing the BLM decision. 
Any review of FWS BOs is limited to the Federal courts pursuant to the 
review mechanism created by Congress in Section 11(g) of ESA (16 U.S.C. 
1540(g)). This issue is further addressed in the preamble discussion of 
section 4160.1. We dropped this provision because BLM believes the 
Secretarial memoranda signed by Secretaries Lujan and Babbitt provide 
sufficient clarity regarding the inability of OHA to review the merits 
of FWS biological advice. This example has been removed from the final 
rule.
    Some comments stated that BLM should remove the requirement that 
``grazing permits and leases shall contain terms and conditions * * * 
to ensure conformance to the provisions of subpart 4180'' at section 
4130.3(a) and section 4130.3-1(c). Subpart 4180 describes Fundamentals 
of Rangeland Health and Standards and Guidelines for Grazing 
Administration. The comments reasoned that this change would clarify 
that permits and leases must be in conformance to all of the provisions 
of part 4100 and the management objectives established by applicable 
land use plans. They felt that these provisions were redundant because 
standards and guidelines developed under subpart 4180 are made a part 
of land use plans and there is an existing requirement that livestock 
grazing activities conform to land use plans.
    It is true that terms and conditions included in permits and leases 
implement all the provisions of part 4100 pertinent to the permit or 
lease. The provision on conformance to subpart 4180 does not mean that 
the terms and conditions must only conform to the fundamentals of 
rangeland health, standards, and guidelines found in subpart 4180. They 
must also conform to the appropriate land use plans. The reference to 
subpart 4180 appears in this newly designated paragraph (a) (which was 
the entire section 4130.3 in the 1995 regulations) as a matter of 
emphasis. Management objectives from applicable land use plans also 
establish desirable outcomes that BLM strives to achieve. Terms and 
conditions of permits and leases should conform to and not hinder 
progress towards management objectives, fundamentals, and standards. 
BLM has considered these comments and has determined that, despite the 
redundancy pointed out by the comment, it would be best to continue to 
state plainly in the regulations that permits and leases must 
incorporate terms and conditions that ensure conformance to subpart 
4180.
    Some comments stated that BLM should remove the proposed language 
at section 4130.3(b)(2) which would not allow protest or appeal of 
terms and conditions placed on grazing use on additional land acreage 
outside designated allotments. The comment stated that this would 
violate TGA Section 9 hearing rights relative to grazing use upon 
``additional land acreage'' within a Grazing District, and that there 
is no rational basis to treat appeal rights for permits issued for 
additional land acreage different from appeal rights for permits issued 
as a result of preference transfer or permit renewal.
    In response to this comment we have removed the provision at 
section 4130.3(b)(2) from the final rule.
    Comments suggested that BLM insert a standard term and condition 
into all grazing permits that states unequivocally that nothing in the 
terms and conditions of the permit shall be construed as affecting 
valid existing rights of way, easements, water rights,

[[Page 39472]]

land use rights, vested rights, or any other property rights of any 
kind.
    The comment expresses concern that the issuance of a grazing permit 
or lease and the BLM management of the public lands associated with the 
permit or lease may affect valid existing rights, including, among 
other things, ``property rights of any kind.'' The TGA provides that 
the Secretary ``shall make such rules and regulations * * * enter into 
such cooperative agreements, and do any and all things necessary to 
accomplish the purposes of'' the TGA ``and to insure the objects of 
such grazing districts, namely, to regulate their occupancy and use, 
preserve the land and its resources from destruction or unnecessary 
injury, to provide for the orderly use, improvement, and development of 
the range.'' BLM accomplishes these goals through grazing permits and 
leases, which authorize grazing use on the public lands. Typically, the 
terms and conditions of a permit or lease specify such things as 
seasons of use and numbers of livestock. If we were to adopt the 
comment and add a term and condition in grazing permits that would 
prohibit BLM from doing anything that would affect any valid existing 
rights or any other property rights of any kind, it would impose an 
unlawful limit on the Secretary's broad authority to regulate the use 
of the public rangelands. Because of the potential confusion the 
suggestion in the comment would create, because property rights are 
adequately protected by the U.S. Constitution, and because there are 
established avenues for seeking compensation for ``takings,'' we have 
not adopted the comment in the final rule.
    One comment suggested that BLM include a statement in section 
4130.3 that terms and conditions will include compliance with 
management goals and objectives.
    Authority to include terms and conditions in a grazing permit or 
lease to assist in achieving management goals and objectives is 
sufficiently addressed in section 4130.3-2.
    Another comment stated that the regulations should provide that the 
new permit or lease that BLM offers to the holder of an expiring permit 
or lease should reflect changes in terms and conditions that apply at 
the time of renewal, or reflect the terms and conditions of the 
expiring permit or lease until the terms and conditions are officially 
changed.
    When renewing a permit or lease, BLM must retain the discretion to 
authorize grazing use under terms and conditions that it determines to 
be appropriate, even if those terms and conditions are different from 
the permit or lease that recently expired. The final regulations also 
provide in section 4160.4 that, should OHA stay any term or condition 
included in a BLM decision that renews a permit or lease, BLM will 
continue to authorize grazing under the permit or lease, or the 
relevant term or condition thereof, that was in effect immediately 
before the decision was issued, subject to any relevant provisions of 
the stay order.
Section 4130.3-2 Other Terms and Conditions
    In the proposed rule, BLM proposed to remove paragraph (h) from 
this section. Paragraph (h) authorizes BLM to include in a grazing 
permit or lease a statement disclosing the requirement that a permittee 
or lessee provide reasonable administrative access to BLM across non-
federal lands owned or controlled by the permittee or lessee, for the 
orderly management and protection of the Federal lands under BLM 
management. BLM reasoned that the absence of such disclosure under the 
proposed rule would not affect the underlying principle that reasonable 
administrative access is an implied condition of grazing permits.
    In response to public comments, as explained below, we have 
restored paragraph (h) in this final rule. Paragraph (h) provides that 
optional terms and conditions include a ``statement disclosing the 
requirement that permittees or lessees shall provide reasonable 
administrative access across private and leased lands to the Bureau of 
Land Management for the orderly management and protection of public 
lands.''
    Several comments stated that the regulations should retain the 
provision in section 4130.3-2(h) regarding administrative access across 
private lands in order for agency staff to perform resource management 
activities on public lands efficiently. Comments expressed concern that 
removal of this provision might impede the agency's management of 
public lands, and pointed out that such access is an implied condition 
of a grazing permit. Other comments supported the removal of this 
provision, asserting that the agency should only have access across 
private property by permission of the land owner or to respond to an 
emergency. Some comments thought this provision should be retained 
because its removal would limit public access to public lands, 
misinterpreting the intent of this provision. This provision does not 
apply to public access across private land; it only applies to agency 
administrative access to perform necessary resource management 
activities on the public lands.
    In response to comments, the final rule retains the language at 
section 4130.3-2(h) that we considered removing in the proposed rule. 
Administrative access is an important component of BLM's ability to 
manage the lands for which it is responsible, including, but not 
limited to, Federal grazing lands. The provisions of paragraph (h) 
regarding administrative access refer to reasonable access across a 
permittee's or lessee's owned or controlled lands to reach Federal 
lands so that BLM, including BLM staff and third party contractors 
working for BLM, may perform necessary resource management activities 
on those lands. These include such activities as range use supervision, 
compliance checks, trespass abatement, monitoring of resource 
conditions, and evaluating the conditions of or the need for range or 
other improvements. Land management agencies, like any landowner, need 
appropriate access to the lands they manage. Efficient and reasonable 
access to, for example, grazing allotments, is necessary and is 
consistent with the partnership between grazing permittees or lessees 
and the agency to manage rangelands properly. Retaining paragraph (h) 
is the most effective and efficient means of informing the public, 
including interested parties, of the requirement that a permittee or 
lessee provide reasonable administrative access across lands owned or 
controlled by them to BLM for the orderly management and protection of 
the Federal lands under BLM management.
    One comment stated that BLM should discourage the use of 
supplemental feed on public land because such feed can introduce weeds 
and pollute water with excess nutrients.
    Supplemental feed, as referred to in section 4130.3-2(c), means a 
feed that supplements the forage available from the public lands and 
that the operator provides to improve livestock nutrition or rangeland 
management. BLM grazing regulations allow placement of supplemental 
feed, including salt, for improved livestock and rangeland management, 
but prohibit placement of supplemental feeds on public lands without 
authorization, or contrary to the terms of the permit or lease. When 
BLM authorizes the use of supplemental feed it includes all necessary 
restrictions, including any requirements for avoiding the introduction 
or spread of noxious weeds, and directions for placement to ensure that 
its use does not contribute to resource degradation. We have not

[[Page 39473]]

amended the regulations in response to this comment.
    Some comments suggested that BLM should include in section 4130.3-
2(f) a requirement that the Bureau must develop a ``findings'' document 
containing the relevant facts, based on documented resource data, 
supporting decisions BLM issues to change current terms and conditions 
of grazing permits or leases for any of the reasons stated in paragraph 
(f). They stated that such a ``findings'' document also should 
accompany any grazing decision placed in full force and effect by the 
Bureau.
    Section 4130.3-2(f) provides that BLM may temporarily delay, 
discontinue, or modify grazing use as scheduled by the permit or lease 
to allow for plant recovery, improvement of riparian areas, protection 
of rangeland resources or values, or to prevent compaction of wet 
soils, such as when delay of spring turnout is required because of 
weather conditions or lack of plant growth. This provision allows for 
timely implementation of temporary changes to grazing use that are 
needed to respond to on-the-ground conditions that cannot be reliably 
predicted when the permit or lease is issued. Similarly, BLM makes 
grazing decisions effective immediately (``full force and effect'') 
only when needed to respond to temporary and unpredictable conditions 
such as lack of forage due to wildfire, drought, or insect infestation, 
or to close grazing areas to abate unauthorized grazing use.
    In most cases, the resource conditions that trigger a temporary 
change in terms and conditions should be evident to both the permittee 
or lessee and BLM. In the event that they are not and the permittee or 
lessee does not voluntarily agree to such temporary changes, BLM would 
need to issue a grazing decision to require the temporary changes. Such 
a grazing decision would include a rationale for the temporary changes 
and be subject to appeal and petition for stay.
    Because the need for changes cannot be reliably predicted and can 
arise suddenly, BLM will not adopt the suggestion that a ``findings'' 
document be required before making temporary changes or before making 
changes by grazing decision effective immediately. Such a requirement 
could result in unnecessary delay of actions that are needed to 
conserve and protect resources.
    Some comments stated that BLM should modify the regulation at 
section 4130.3-2(g) by removing the phrase ``within the allotment'' 
with respect to lands allowed for exchange of use, so that a permittee 
or lessee who owns land within another permittee's or lessee's 
allotment may be credited on his grazing fee bill for the forage that 
their lands are providing to the other permittee.
    We have not adopted this suggestion in the final rule. An exchange 
of use agreement is not the appropriate instrument to document the 
arrangement described by the comment. The arrangement described by the 
comment is where BLM acts as an intermediary between two permittees/
lessees by: (1) Collecting grazing fees from the first party for their 
grazing use of the second party's private lands that are located in the 
first party's grazing allotment; and (2) then crediting the grazing fee 
billing of the second party (for grazing use in a different allotment) 
in the amount collected from the first party. BLM suggests that a more 
appropriate approach to this situation would be: (1) The first 
permittee lease for grazing purposes land owned by the second permittee 
that is located in the first permittee's allotment; and, (2) the first 
permittee then provide BLM a copy of the lease to show evidence of 
control sufficient for BLM to enter into an exchange of use agreement 
with them. BLM recognizes that where the second permittee does not 
fence his land and state or local law provides that lands must be 
fenced before a landowner can gather stray livestock from their land, 
there is no incentive, other than good will, for the first permittee to 
lease the second permittee's land because he can graze the second 
permittee's land for free (although they cannot stock to the capacity 
of the public and private lands considered together because they cannot 
demonstrate control of the private land). Therefore, at the local 
office level, BLM may be willing to provide the intermediary billing 
services described above through the terms of a cooperative agreement 
or service contract with all involved parties.
    The purpose of an exchange of use agreement is to allow a permittee 
who owns or controls land that is intermingled with and unfenced from 
public land within his allotment to stock to the capacity of the public 
and private lands considered together and be charged grazing fees only 
for the forage that occurs on the public lands. Removing the phrase 
``within the allotment'' from this paragraph would allow permittees to 
offer lands in exchange of use that are not within the allotment for 
which they have a permit. Although removing this phrase could 
facilitate BLM performing the intermediary billing service described 
above in some circumstances, generally allowing lands outside 
allotments to be offered in exchange of use could create an expectation 
that the permittee would be allowed to stock his permitted allotment to 
the extent of the forage produced on the land outside his allotment 
offered in exchange of use, plus the forage that occurs on lands within 
his allotment. This expectation could not be met by BLM because the 
resulting stocking level would not comply with the requirement at 
section 4130.3-1(a) that livestock grazing use authorized by a grazing 
permit or lease not exceed the livestock carrying capacity of the 
allotment.
    One comment suggested that BLM should require other users of the 
public lands to get permission to be on public land from BLM and BLM 
should inform the permittee when other users and/or BLM staff will be 
out on the permittee's allotment.
    Determining whether and under what circumstances users other than 
livestock permittees need approval to use public lands is outside the 
scope of this rulemaking. Whenever feasible, BLM will inform the 
livestock operators in advance about BLM field operations that affect 
grazing management of allotments where they have permits or leases in 
the spirit of consultation, cooperation, and coordination. A regulation 
requiring advance notification, however, would be impractical to 
implement and detract from efficient management of the public lands. We 
have not adopted this suggestion in the final rule.
Section 4130.3-3 Modification of Permits or Leases
    In the proposed rule, we amended this section in order to clarify 
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, an applicable activity plan, or any 
applicable decision issued under section 4160.3. We may also modify 
permit or lease terms and conditions that do not conform to the 
provisions of subpart 4180.
    Also, we removed the regulatory requirement that we consult with 
the interested public on any decisions to modify terms and conditions 
on a permit or lease. 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. The 
interested public, permittees and lessees, and the state should all 
have opportunity to review and submit input to BAs and BEs when they 
are used to

[[Page 39474]]

supplement grazing management evaluations. However, since they are 
among the body of documents that qualify as ``reports,'' there is no 
need to highlight them in the regulations. Therefore, the specific 
reference to BAs or BEs at section 4130.3-3(b) has been removed from 
the final rule.
    Some comments suggested that BLM not use the need to conform to the 
provisions of subpart 4180 as justification for modifying terms and 
conditions of a permit or lease. The comment stated that standards 
developed under subpart 4180 are subjective, and there are no 
requirements to collect data to support a determination of achievement 
or failure to meet those standards.
    We have not adopted this comment in the final rule. BLM developed 
rangeland health standards and guidelines for livestock grazing 
administration in consultation with RACs in most states and regions. 
The fundamentals of rangeland health and standards and guidelines 
recognize rangeland ecological complexity and multiple values, and are 
among the many tools BLM uses to ensure sustainable multiple use of 
public lands. Evaluation of rangeland conditions is carried out using 
all available monitoring, inventory, and assessment data. Permit 
modifications are based on range health assessments and evaluations, 
completed by an interdisciplinary team, using all available monitoring 
data and all available resource information. This final rule further 
emphasizes the importance of using monitoring data by adding, at 
section 4180.2(c), a requirement for its use to identify what the 
significant contributing factors are, once a standards assessment has 
indicated that the rangeland is failing to meet standards or that 
management practices do not conform to the guidelines. The final rule 
retains the provision on conformance to subpart 4180.
    Another comment suggested adding requirements to collect monitoring 
data that shows that current grazing use or management is the cause of 
not meeting management objectives. A similar comment suggested adding 
requirements to document facts and findings, supported by resource 
data, as a justification for changing terms or conditions. Finally, 
another comment stated that BLM should make it clear in subparts 4110 
and 4130 that any changes in grazing preference and/or changes in other 
grazing permit terms and conditions must be supported by monitoring 
done by BLM-approved Manual procedures.
    Permit and lease modifications are based on land health assessments 
and evaluations, completed by an interdisciplinary team, using all 
available monitoring data and all available resource information. BLM 
documents facts and findings during the evaluation process by preparing 
an evaluation report and NEPA documents that reference all data and 
information used as a basis for recommending changes in terms and 
conditions. This final rule further emphasizes the importance of using 
monitoring data by adding a requirement at subpart 4180.2(c) that it be 
used to identify significant contributing factors for failure to meet 
standards, once a standards assessment has indicated that the rangeland 
is in fact failing to meet the standards or that management practices 
do not conform to the guidelines. BLM needs flexibility to use site-
specific methods in addition to those monitoring methods set forth in 
Manual guidance. This flexibility will allow BLM to use techniques that 
meet local needs and that we may develop in cooperation with other 
agencies and partners.
    Another comment suggested that we consider adding a provision at 
section 4130.3-2 stating that ``this regulation does not obviate the 
need to obtain other federal, state or local authorizations required by 
law.'' The comment pointed out that the construction of range 
improvements associated with grazing activities, such as water 
improvements and storage structures, is often governed by other laws or 
regulations.
    Section 4120.3 governs the installation, construction, and 
maintenance of range improvements. Permittees or lessees must enter 
into a cooperative range improvement agreement with BLM before building 
water improvements or storage structures. Through the cooperative 
agreement, BLM retains control over standards, design, construction and 
maintenance criteria. The provision suggested by the comment is 
unnecessary because BLM has a responsibility to ensure compliance with 
applicable law. Nothing in the regulations prevents BLM from adding 
such a term where it is warranted. BLM still must comply with NEPA, the 
Clean Water Act, and state water rights laws. Since BLM maintains 
control over range improvement planning, implementation and 
maintenance, existing regulations and policies ensure compliance with 
applicable Federal, state, and local law and regulations.
    Under the final rule, consultation, cooperation, and coordination 
with the interested public is no longer required before a term or 
condition in a grazing permit or lease is modified due to active use or 
related management practices not meeting relevant plans or decisions. 
This change is intended to improve the administrative efficiency of 
grazing management operations.
    Many comments expressed opposition to any reduction in the role of 
the interested public, and many cited the modification of permits as a 
general concern. Many felt it was important to have non-grazing 
interests involved in both planning and implementation-level decisions. 
Numerous other comments supported a general reduction in mandatory 
consultation with the interested public, seeing these as activities 
that would benefit from faster and more efficient action.
    Permit and lease modifications are routine management activities. 
BLM modifies permits and leases to maintain consistency with broader 
planning decisions such as land use plans and allotment management 
plans. These planning-level decisions are made with extensive 
involvement of the interested public and public participation 
opportunities through environmental analysis under NEPA. Modifications 
may also be made as a result of monitoring studies, evaluations of 
rangeland health standards and guidelines for grazing administration or 
BAs or BEs prepared as part of the Section 7 consultation requirements 
under the ESA. In these cases, BLM provides the interested public, to 
the extent practical, an opportunity to review and provide input on 
these reports and evaluations during their preparation, in accordance 
with section 4130.3-3(b). Most modification decisions themselves 
require site specific NEPA analysis leading to public notice and 
potential public participation. Additionally, the interested public 
will be specially notified of a proposed decision and can protest if so 
desired.
    In BLM's view, informal consultations and the ability to review the 
NEPA document and protest a proposed decision provide adequate 
mechanisms for identifying legitimate public concerns over permit 
modifications. The final rule maintains the opportunity, to the extent 
practicable, for the interested public to review and provide input on 
reports that evaluate monitoring or other data. BLM appreciates that 
the interested public can potentially provide important insights on 
reports that will be used to shape implementation decisions. Because 
this is information that postdates planning decisions, yet will 
influence future daily

[[Page 39475]]

implementation decisions, it is appropriate for the interested public 
to participate in reviewing this data.
    The proposed rule specifically referred to the preparation of BAs 
or BEs prepared pursuant to the ESA as being open for review. Several 
comments requested that these reports be removed from the rule because 
of their technical nature.
    A change has been made in the final rule to remove the specific 
listing of these example reports. While the range of reports subject to 
this review procedure would include, in most circumstances, BAs or BEs, 
it is not BLM's intention nor is it appropriate to create an exhaustive 
list of reports subject to review in the regulations. Listing these 
particular reports could have unduly narrowed the perceived range of 
what should be made available for review and input.
    One comment stated that BLM should clarify that it maintains sole 
responsibility and authority to ensure the accuracy of the biological 
assessment and the conclusions therein, and to ensure that listed 
species are not likely to be jeopardized, regardless of economic 
considerations.
    There is adequate direction provided in the ESA and in the FWS and 
National Marine Fisheries Service regulations on these requirements. 
BLM will continue to use the procedures specified in BLM Manual section 
6840 to carry out our responsibilities under the ESA and coordinate 
with other agencies
Section 4130.4 Authorization of Temporary Changes in Grazing Use Within 
the Terms and Conditions of Permits and Leases, Including Temporary 
Nonuse
    In the proposed rule, we revised section 4130.4 to provide 
additional detail on what is meant by the phrase ``within the terms and 
conditions of the permit or lease.'' 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 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. 
Most permits or leases include a period of use described by specific 
dates. These dates do not always account for the natural fluctuations 
that can lead to forage availability outside the listed dates. Existing 
regulations allow for temporary changes, but this authority has, at 
times, been applied inconsistently within BLM. The new definition 
clarifies the amount of flexibility BLM authorized officers will have 
when considering temporary changes. Under the revised section, 
``temporary changes in grazing use within the terms and conditions of a 
permit or lease'' includes temporary changes in livestock number, 
period of use, or both, that would--
    (1) Result in temporary nonuse; or
    (2) Result in forage removal that does not exceed the amount of 
active use specified in the permit or lease, and 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, or that conforms to flexibility limits specified in an 
allotment management plan under section 4120.2(a)(3).
    The provision also applies to temporary changes that result in both 
temporary nonuse and forage removal 14 days or less before the begin 
date and/or after the end date, as just described in (2), above.
    In the final rule, we removed language listing reasons for allowing 
temporary changes in grazing use within the terms and conditions of the 
grazing authorization. First, comments objected to the reference to 
locally established range readiness criteria, and second, the list may 
be too restrictive. We also removed paragraph (a)(2), because it is 
unnecessary to require consultation, cooperation, and coordination with 
the applicant.
    We have amended paragraph (d)(2) of this section in the final rule 
by changing the word ``will'' that appeared in the proposed rule to 
``may'' in order to avoid an interpretation of this provision that BLM 
has no discretion to deny temporary nonuse. We also added a reference 
to ``temporary nonuse'' in the section heading as a convenience to 
readers, and reorganized the section to increase clarity.
    In the proposed rule we moved provisions addressing approval of 
``temporary nonuse'' from section 4130.2 to section 4130.4 and amended 
them to give BLM 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. 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.'' 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.
    Paragraph (f) of this section (Sec.  4130.2(h) in the existing 
regulations, as revised for clarity) continues 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. On the other hand, when BLM 
approves nonuse because we agree that rangeland conditions would 
benefit from temporary nonuse, we do not authorize another operator to 
use it.
    We also moved current paragraph (a) to the end of section 4130.4 
and redesignated it as paragraph (g). In newly designated paragraph 
(g), we made editorial changes.
    The principal change that we made in the proposed rule with regard 
to temporary nonuse was to remove the current three-consecutive-year 
limit on temporary nonuse. We proposed that BLM should 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.
    First we will consider the comments that discussed temporary 
changes in grazing use within the terms and conditions of the permit or 
lease, and then the comments that discussed the changes that we 
proposed with regard to temporary nonuse.
    One comment stated that grazing permits should contain soil, water, 
riparian vegetation, and wildlife objectives, in order to help 
determine whether it is appropriate to authorize early opening or late 
closing of grazing. The comment continued that most detrimental changes 
in condition of soil, water, riparian vegetation, and wildlife result 
from ill-planned season of livestock use, duration of use, or amount of 
utilization. It concluded that terms and condition of the permit need 
to contain objectives that can address these activities, and that BLM 
should only change grazing use within the terms and conditions of 
permit or lease if they have monitoring and assessment data to support 
the change in use, and the change does not result in removing more 
forage than the ``active use'' specified by the permit or lease.
    Objectives for soil, water, riparian, wildlife, and other resources 
are usually developed through the planning process and included in land 
use plans,

[[Page 39476]]

allotment management plans, or activity plans, becoming more site 
specific at each level of planning. A grazing permit must conform to 
the objectives of land use plans. Therefore terms and conditions are 
designed to achieve the objectives established in the relevant land use 
plans and it is not necessary to restate objectives in the permit. In 
addition to objectives established in overarching plans, standards for 
rangeland health provided for in section 4180.2 establish levels of 
physical and biological condition or degree of function and minimum 
resource conditions that must be achieved or maintained. Terms and 
conditions of permits must provide for achievement of the rangeland 
health standards. The proposed rule at section 4130.4(b)(1) already 
limits the temporary use provided for in this section to the amount of 
active use specified in the permit or lease. Approval of applications 
for temporary changes will be dependent on range conditions as observed 
by the authorized officer, following the criteria in internal guidance 
and in the standards and guidelines under subpart 4180.
    Another comment suggested that the rule should provide that grazing 
use that removes more forage than active use specified in the permit or 
lease be justified by monitoring and assessment data.
    The regulations in this rule already address this situation. If BLM 
were to authorize use greater than the active use specified in the 
permit or lease, we would do so under section 4110.3-1, which addresses 
increasing active use, and base it on monitoring or documented field 
observations.
    Several comments, including one from a state wildlife agency, 
stated that the rule should provide for consultation with state 
wildlife departments before BLM authorizes changes within the terms and 
conditions of the permit. It went on to say that, just as the criteria 
to be used in justifying temporary changes in grazing use within the 
terms and conditions of a permit or lease include annual fluctuations 
in timing and production of forage and rangeland readiness criteria, so 
are the needs of wildlife species dependant upon these fluctuations. 
One comment agreed with BLM's approach on this issue, but stated that 
we should consider wildlife-critical periods when deciding whether to 
authorize the temporary changes in grazing terms within the terms of 
the permit or lease.
    Consideration of wildlife habitat needs occurs during all stages of 
planning the multiple use of public lands. During each stage of this 
planning process--land use planning, allotment management planning and 
the formulation of individual permits and leases--the state is invited 
to participate in developing objectives and strategies to protect 
wildlife habitat. Since the temporary changes are by definition within 
the terms and conditions of permits or leases, we believe the state has 
had ample opportunity to communicate the wildlife-critical periods and 
specific habitat needs that BLM must consider while processing an 
application for temporary changes in grazing use.
    Other comments urged BLM to reconsider applying range readiness 
criteria, and one asked for a definition of range readiness. They 
opposed the idea of using ``locally established range readiness 
criteria'' in this context, stating that the concept of ``range 
readiness'' is no longer supported by the range science community. 
Another comment stated that BLM should amend Sec.  4130.4(a)(1)(ii) to 
provide that the ``locally established range readiness criteria'' must 
have been established in applicable land use plans, activity plans, or 
decisions. The comment strongly supported recognizing that range 
readiness for turn out may vary from year to year, and stated that 
providing a 14-day window is prudent. Several comments stated that the 
authorization of temporary changes of use should not be based on active 
use or preference, but on whether forage is actually available.
    We have amended this section in the final rule by removing the 
references to the reasons for authorizing temporary changes in grazing 
use. Thus, the final rule does not contain any reference to ``range 
readiness criteria.'' We made these deletions for two reasons. First, 
we did not want to limit our discretion as to why we may authorize 
temporary changes in grazing use, and second, we recognize that the 
method for determining ``range readiness'' is controversial and 
technical in nature. It is therefore more appropriately addressed in 
manual, handbook, or other technical guidance. This guidance will 
include the criteria BLM will follow in authorizing such changes, and 
appropriate consultation requirements. BLM considers the availability 
of forage as well as many other physical and biological factors when 
processing an application for temporary changes in grazing use.
    One comment urged BLM to allow changes within the terms of the 
permit or lease only if BLM determines it appropriate before the 
grazing season, to avoid the possibility of legitimizing trespass by 
changing grazing use periods or numbers part way through the grazing 
year.
    BLM will not use the provision to approve changes in use after the 
fact, agreeing that it is inappropriate to legitimize grazing trespass. 
It is also impossible to determine before the grazing season starts 
what conditions will exist in ensuing months. We have amended paragraph 
(e) of this section in the final rule to make it clear that 
applications for changes within the terms and conditions must be filed 
in writing on or before the date the change in grazing use would begin. 
We have also amended paragraph (b) by adding language recognizing that 
the allotment management plan may allow grazing beyond the 14-day 
limit. Nevertheless, grazing would still be limited to the total active 
use allowed in the permit or lease.
    One comment urged BLM to consider shortening the limit for grazing 
within the terms and conditions of the permit or lease to 7 days 
instead of 14 days. The comment stated that some permittees will 
request a 14-day opening as soon as forage is bite high. It went on to 
say that 7 days is plenty to allow for varying weather conditions. The 
comment also said that the same limit should apply at the end of the 
grazing season, and that if there is more than 7 days of forage 
remaining, it should be banked for the next year. Another comment asked 
BLM to explain how the possible 28-day combined extension of the 
grazing period will not result in overgrazing.
    We have determined that 14 days before the begin date in the permit 
or lease provides an appropriate degree of flexibility in determining 
when to allow turn out, as does 14 days after the end date to require 
round up. As for the suggestion that excess forage measured in days 
should be saved for the next year, it is unnecessary to state this in 
the regulations. The provision already limits its application to the 
amount of active use called for in the permit or lease. Forage in 
excess of this amount will not be allocated under this provision, so 
this provision will not lead to overgrazing. The regulations allow 
increases in active use under section 4110.3-1 in appropriate 
circumstances.
    Many comments raised concerns about the temporary nonuse provisions 
in section 4130.4(c) through (e).
    Several comments expressed the concern that, if we adopt the rule 
as proposed, BLM would be unable to deny nonuse for conservation 
purposes. The comments pointed out the possibility that since the rules 
do not limit the number of years that a grazing

[[Page 39477]]

operator could potentially be approved for nonuse of his grazing permit 
or lease, conservation organizations could acquire grazing permits and 
perpetually receive BLM approval not to use them for reasons of natural 
resource conservation, enhancement, or protection. Another comment 
supporting the proposed rule expressed concern that BLM's discretion to 
grant nonuse for more than 3 years allows a de facto ``conservation 
use'' permit in violation of the TGA, FLPMA, and the decision in Public 
Lands Council v. Babbitt, supra. Also, the proposed rule stated that 
BLM ``will'' authorize nonuse to provide for natural resource 
conservation, enhancement or protection or for the personal or business 
needs of the permittee.
    In the final rule, BLM has changed the term ``will'' to ``may'' to 
make clear that BLM retains the discretion to disapprove nonuse if BLM, 
based on the facts applicable to the circumstances, does not agree that 
nonuse is warranted.
    The final rule also does not change provisions that authorize BLM 
to cancel permits and leases if they are not used for the purpose 
intended--namely, to graze livestock--and to award them to other 
applicants in accordance with the decisions, goals, and objectives of 
the governing land use plan. BLM believes it necessary to retain 
discretion to approve or disapprove nonuse based on the facts and 
circumstances at hand, so that it may adapt its management to the needs 
of the resources as well as the resource user. The regulations adopted 
today provide that unless BLM approves nonuse in advance, it is not 
approved. BLM may deny nonuse if we find that it is not needed either 
for natural resource conservation, enhancement or protection, or for 
personal or business needs of the permittee. If BLM denies a 
permittee's application for nonuse, the permittee would be obligated to 
graze in accordance with their permit or lease. If the permittee failed 
to make use as authorized by their permit or lease for two consecutive 
fee years, then BLM could cancel the unused preference under section 
4140.1(a)(2) and allocate it to other applicants under sections 4110.3-
1(b) and 4130.1-2.
    If BLM approves nonuse for personal or business reasons of the 
permittee or lessee, we may authorize other qualified applicants to 
graze the forage that is temporarily made available due to the nonuse 
by the preference permittee under section 4130.4(e). If BLM approves 
nonuse for reasons of resource conservation, enhancement, or 
protection, and should a qualified applicant believe that BLM's 
approval of nonuse for any of these reasons is not justified, that 
applicant could apply to use the forage that he believes to be made 
available as a result of BLM's approval of nonuse. Because the 
regulation at section 4130.4(e) would not allow BLM to approve an 
application for forage made available as a result of temporary nonuse 
approved for reasons of resource conservation, enhancement, or 
protection, BLM would then necessarily deny such an application for use 
by grazing decision. This grazing decision would be subject to protest 
and appeal, thereby providing the applicant an opportunity to 
demonstrate to an administrative law judge or board why he believes 
BLM's decision to approve the nonuse application was in error, and to 
have the court compel BLM to either require that the forage be used by 
the preference permittee or to make the forage available for use by 
other applicants.
    Some comments stated that the Supreme Court found that unlimited 
nonuse was not consistent with the TGA.
    The final rule does not authorize BLM to grant ``unlimited'' 
nonuse. The final rule restores to BLM flexibility to approve permittee 
or lessee applications for nonuse as long as BLM determines annually 
that the nonuse is warranted by resource needs or by the personal or 
business needs of the operator.
    One comment questioned why temporary nonuse must be subject to 
annual application, stating that in at least some cases it should be 
easy to predict that the benefits from nonuse would take several or 
even many years to accumulate. The comment suggested that an analysis 
of historic employment of temporary nonuse might shed light on reasons 
ranchers applied for temporary nonuse: BLM proposals to reduce AUMs; 
business reasons of the permittee or lessee; or cooperative agreements 
to allow range or riparian recovery.
    Annual reconsideration of temporary nonuse allows BLM to determine 
whether it is still necessary. Of course, in some cases the 
determination will be easy to make. Historical analysis of temporary 
nonuse is not necessary. Of the three reasons for nonuse suggested in 
the comment, two are explicitly provided for in the regulations at 
section 4130.4(d)(2)(i) and (ii). As for the other reason suggested for 
temporary nonuse, that BLM is proposing to reduce AUMs, temporary 
nonuse may be a preferable, less drastic, alternative, which will give 
the range an opportunity to recover to forage levels that will support 
the permitted AUMs before BLM cancels the AUMs.
    One comment urged BLM to ensure that the grazing regulations 
provide for maximum flexibility for nonuse, or reduced use, including 
allowing nonuse for 3 years for reasons other than resource management. 
Upon 3 years of nonuse, then, according to the comment, BLM should 
consult with the preference holder to determine how to make the nonuse 
AUMs temporarily available to other applicants engaged in the livestock 
business, or to reallocate them permanently in accordance with the 
grazing regulations. The comment concluded that BLM should limit nonuse 
for resource protection reasons to 5 years to protect the range from 
rangeland health concerns that some contend start to accrue after 5 
years without livestock grazing.
    The final regulations provide sufficient flexibility for approving 
nonuse for reasons other than resource management. BLM should not wait 
for 3 years before authorizing other applicants to graze AUMs made 
available due to a preference permittee's nonuse for personal or 
business reasons, as there may be times where the use can appropriately 
be made immediately. However, we disagree that there should be an 
arbitrary limit on nonuse for reasons of resource conservation, 
enhancement, or protection. There may be times when nonuse based on 
these needs is justified for longer than 5 years, which BLM will 
determine based on monitoring and standards assessment.
    One comment supported the proposed policy that removes the current 
3 consecutive year limit on temporary nonuse of a grazing permit, 
because it gives BLM and the permittee more flexibility in resting 
allotments to protect and restore natural resources.
    One comment suggested the rule should include a description of the 
types of information and documentation that a permittee must submit to 
``justify'' nonuse. The comment expressed concern that if the level of 
detail required is too great, it may become too burdensome on the 
permittee at the expense of the wildlife or habitat resource. The 
comment also stated that the requirement that nonuse be re-authorized 
annually could prove burdensome to the permittee. Finally, there was 
concern that these requirements may ultimately conflict with Sections 
7(a)(1) and 7(a)(2) of the ESA and conservation agreements and 
strategies for sensitive species.
    BLM does not believe that the application process will be 
burdensome. BLM's long-standing procedure is annually to provide its 
permittees and lessees a grazing application reflecting the use 
authorized by their permit or

[[Page 39478]]

lease, with an invitation to amend it within certain parameters if it 
does not meet their needs for that year. The new nonuse provision will 
not create any additional burden. Further, BLM does not believe that 
expanding its flexibility to allow longer periods of temporary nonuse 
will ultimately conflict with Sections 7(a)(1) and 7(a)(2) of the ESA 
or conservation agreements and strategies for sensitive species. In 
fact, just the opposite is expected with the use of this flexible 
resource conservation tool.
    One comment urged that BLM should not propose reductions and 
eliminations in resting or nonuse because this action, which is only 
beneficial to the permittee or lessee, implies that BLM is only 
concerned about short-term production of livestock and not the long 
term benefit of stewardship.
    BLM does not believe that granting nonuse when it is beneficial to 
a permittee or lessee implies that BLM is only interested in short term 
livestock production. Long-term stewardship of public lands is inherent 
in the stated missions and goals of the agency in Section 102(a) of 
FLPMA. There are also many sections (such as section 4130.3-3(b), 
subpart 4180, etc.) in the grazing regulations that provide mechanisms 
for exercising stewardship of the public lands to ensure that the lands 
are productive and available to future generations. Additionally, the 
concept is embodied in BLM's mission statement: ``sustains the health, 
diversity, and productivity of the public lands for the use and 
enjoyment of present and future generations.''
    Another comment supported the proposal to allow annual re-
authorization of nonuse, based on the local manager's judgment, to 
promote flexibility in management of BLM grazing permits. The comment 
noted, however, that this flexibility would also provide a permittee 
the opportunity to retain monopoly control of an allotment and its 
resources at low or no cost. The comment suggested a limit on nonuse of 
3 to 5 years. At that point, a more careful review of the situation and 
future alternatives would be conducted, and a decision could be made to 
continue the nonuse or move ahead with other options.
    It is necessary to retain discretion to approve or disapprove 
temporary nonuse based on the facts and circumstances at hand, so that 
BLM may adapt its management to the needs of the resources as well as 
the resource user. BLM may deny nonuse if we find that it is not needed 
for natural resource conservation, enhancement, or protection, or for 
the personal or business needs of the permittee. Under the final rule, 
however, temporary nonuse may be approved annually for longer than 
three years, if the reasons for nonuse remain. BLM believes it is 
important to require an annual request for temporary nonuse in order to 
re-assess the circumstances. With this annual re-assessment, 
establishing a firm limit on the number of years of nonuse is 
unnecessary.
    One comment suggested that the regulations should provide that when 
permit holders request nonuse or a reduction or suspension of what is 
currently permitted use, such requests would be granted.
    Section 4130.4 provides that BLM may authorize temporary nonuse for 
natural conservation reasons or for business or personal reasons of the 
permittee or lessee. If the applicant supports the request with 
appropriate reasons, BLM will normally approve the request, on a year-
to-year basis, as provided by section 4130.4(d)(1)(ii). BLM believes it 
necessary to retain discretion to approve or disapprove nonuse based on 
the facts and circumstances at hand, so that it may adapt its 
management to the needs of the resources as well as the resource user.
    One comment stated that BLM's consideration of a request for 
conservation use should consider whether that use would create a fire 
hazard.
    The final rule allows permittees and lessees to apply for temporary 
nonuse for conservation purposes. BLM's deliberation regarding an 
application for nonuse for conservation purposes will include 
consideration of whether approval would result in other effects such as 
unhealthy buildup of fuels.
Section 4130.5 Free-Use Grazing Permits
    In the proposed rule, we removed all references to conservation 
use, including in paragraph (b)(1) of this section, to conform the 
regulation to the decision of the Tenth Circuit Court of Appeals. We 
also removed the word ``authorized'' to keep the rule internally 
consistent. No comments addressed these changes.
Section 4130.6-1 Exchange-of-Use Grazing Agreements
    In the proposed rule, BLM invited comment regarding whether BLM 
should facilitate ``trade-of-use'' arrangements between operators (68 
FR 68456). As stated in the proposed rule, this type of arrangement 
allows one permittee or lessee to own or control unfenced intermingled 
private lands that are not within his allotment, but in the allotment 
of a second permittee or lessee. Some comments urged that BLM 
facilitate ``trade-of-use'' in this type of situation by collecting a 
grazing fee from the second permittee for the 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 bills.
    Comments on the proposed rule either urged BLM to facilitate this 
arrangement or urged BLM not to facilitate this arrangement, but did 
not provide reasons other than either that it would ``contribute to 
multiple use benefits'' (from comments supporting BLM facilitation), or 
that it would not (from comments opposing BLM involvement).
    We have made no change in the final rule in response to these 
comments. BLM continues to believe that ``trade-of-use'' arrangements 
between private parties are best handled by the private parties. The 
regulation continues to provide that lands offered in exchange-of-use 
must be unfenced and intermingled with the public lands in the same 
allotment.
    Another comment urged BLM to include in this section a provision 
stating, ``BLM will include in calculation of the total allotment or 
lease livestock carrying capacity, the total number of livestock 
carrying capacity AUMs of lands offered for exchange of use as 
determined by a rangeland survey conducted by persons qualified as 
professional rangeland managers.''
    We have not adopted this comment in the final rule. The regulation 
continues to limit the level of use on public lands authorized by an 
exchange-of-use agreement on public lands to the livestock carrying 
capacity of the lands offered in exchange-of-use. Guidance regarding 
how this level is determined is best contained in grazing management 
handbooks and technical references, not in the grazing regulations.
Section 4130.6-2 Nonrenewable Grazing Permits and Leases
    In this section we removed 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. Here are two examples 
of when we apply this provision: when BLM has approved an application 
for nonuse for personal or business reasons under section 4130.4; and 
when we need to manage grazing use authorized on ``cheatgrass'' ranges.

[[Page 39479]]

    For purposes of clarity and ease of usage, in the final rule we 
have further amended the second sentence of paragraph (b) by adding a 
cross-reference to section 4110.3-1(a), which provides for the 
disposition of additional forage temporarily available.
    Under the final rule, consultation, cooperation, and coordination 
with the interested public is no longer required before a nonrenewable 
grazing permit or lease is issued. This change is intended to improve 
the administrative efficiency of grazing management operations and 
allow for a rapid response during the limited time periods when 
additional forage, such as cheatgrass forage, is available.
    In the final rule, we have added a new paragraph (b) giving the 
authorized officer the option of making a decision that issues a 
nonrenewable grazing permit or lease, or that affects an application 
for grazing use on annual or designated ephemeral rangelands, effective 
immediately or on a date established in the decision. This provision 
replaces and meets the need served by paragraphs (c)(2) and (3) of 
section 4160.4 in the proposed rule. Those paragraphs would have 
provided that decisions authorizing temporary nonrenewable grazing or 
grazing on ephemeral or annual rangeland are to be implemented despite 
a stay by OHA.
    We have decided to allow such grazing to proceed, pending appeal, 
for several reasons. In some cases, we have a limited time to authorize 
forage to be grazed before it loses its nutritional value. Under 
existing rules, upon an appeal and petition for stay (regardless of 
whether the stay is granted), BLM cannot authorize the use until the 
end of the regulatory time frames for addressing the stay petition (45 
days in addition to the 30-day appeal period, for a total of 75 days, 
or 2.5 months), and often by that time it is too late to utilize the 
forage because the forage has lost most of its value. In annual range 
(or converted annual range such as cheatgrass ranges), this may result 
in a buildup of wildfire fuels. BLM believes that this approach is a 
more efficient management tool. Parties may still appeal and seek a 
stay, but the decision will be immediately effective and there will be 
no protest period.
    This allows BLM to manage the utilization of annual or ephemeral 
rangelands on a real time basis (under land use plans, activity plans 
and other documents that contain multiple use objectives), and allows 
those who may wish to dispute such a decision the opportunity for 
review.
    Moreover, the provision does not exempt the action of issuing a 
nonrenewable permit or lease or approving or disapproving an 
application for use in annual or designated ephemeral rangelands from 
the normal consultation, NEPA review, and approval requirements.
    The phrase ``orderly administration of the rangelands'' in this 
provision requires BLM to explain in its decision the circumstances 
that justify placing such a decision in full force and effect.
    Other sections of the rules are cross-referenced accordingly (those 
being sections 4160.1(c) and 4160.3(c)).
    A comment urged BLM to reconsider the proposal to increase grazing 
on cheatgrass ranges because of the potential impact of cheatgrass on 
native grasses and ecosystem functions.
    Grazing of cheatgrass ranges was given as an example in the 
preamble of the proposed rule when BLM would not be obliged to consult 
with the interested public. BLM would need to implement cheatgrass 
range grazing promptly at specific times and under specific conditions. 
BLM is not proposing permanent increases in grazing on cheatgrass 
ranges.
    A few comments expressed concern that public participation under 
NEPA would not be sufficient, and noted the possibility that a NEPA 
categorical exclusion could be implemented. One comment requested that 
the rule be modified to exclude any possibility of a categorical 
exclusion. Several comments supported the change as proposed.
    At the time the October 2004 FEIS was published (June 2005), BLM 
was not proposing a categorical exclusion (CX) for issuing nonrenewable 
permits, and responded accordingly. On January 25, 2006 (71 FR 4159), 
BLM proposed a CX for issuing nonrenewable permits, limited to those 
allotments that have been assessed and evaluated and the authorized 
officer determines and documents that the allotment meets land health 
standards or where existing livestock grazing is not a factor in not 
achieving land health standards. The number of permit or lease 
decisions that could make use of the CX would be further limited by the 
12 extraordinary circumstances listed in Appendix 2 of Departmental 
Manual 516 DM 2, and BLM must document that the grazing use authorized 
by the nonrenewable permit would not change the status of the land 
health standards. This CX proposal (which is not a part of this 
rulemaking), if adopted, would lead to a change in the result of the 
rule, changing somewhat the ability of interested publics to 
participate in the consideration of issuing nonrenewable permits. 
However, if the CX were to be adopted, the interested public would 
still be able to participate in the process of developing land use 
plans and activity plans, where resource objectives, allocation of 
resource use (including allocation of excess forage through 
nonrenewable permits), and parameters for resource management 
(including the dates of use that could be allowed under a nonrenewable 
permit) are established; in developing reports that lead to a 
determination regarding status of land health; and at the decision 
stage under subpart 4160.
    Comments stated that BLM should retain the authority to authorize 
livestock grazing by issuing nonrenewable permits or leases to help 
maintain the health of rangelands in situations where significant 
authorized non-use by livestock exceeds a period of time appropriate to 
the respective western ecosystem.
    BLM retains the authority to authorize livestock grazing on an 
allotment even if the preference permittee is granted nonuse of his 
permit to graze that allotment for personal or business reasons. 
Although the final rule no longer restricts nonuse of a grazing permit 
or lease to 3 consecutive years, section 4130.6-2(d) allows BLM to 
issue a temporary and nonrenewable grazing permit or lease to a 
qualified applicant when forage is temporarily available, the use is 
consistent with multiple use objectives, and it does not interfere with 
existing livestock operations. Under that provision and section 
4130.4(e), when an allotment has livestock forage available that is not 
being used by a preference permittee whom BLM has approved for 
temporary nonuse for business or personal reasons, BLM may grant other 
qualified applicants a nonrenewable permit or lease to graze it. 
Section 4120.3-3(c) requires that the preference permittee or lessee 
cooperate with the temporary use of forage by the permittee or lessee 
with a temporary, nonrenewable authorization from BLM. In contrast, if 
BLM approved an application by the preference permittee for nonuse for 
reasons of resource conservation, enhancement, or protection under 
section 4130.4(d)(2)(i), BLM would deny an application for a 
nonrenewable permit under section 4130.4(e) and subpart 4160. In this 
circumstance, if the applicant for a temporary, nonrenewable permit or 
lease disagreed with BLM's determination that the nonuse was warranted 
for reasons of resource conservation, enhancement, or protection, he 
would have the option to protest and appeal the grazing decision that 
denies his application, and BLM would need to defend the determination

[[Page 39480]]

that the nonuse was warranted for the reasons specified.
    One comment stated that BLM should address the effects of the 
grazing use that would be authorized by a nonrenewable permit on seed 
replenishment by annual forbs, root reserve replenishment by perennial 
grasses and forbs, and the potential for damage to soil crust.
    We believe that it is unnecessary to address these concerns in the 
regulations, since BLM undertakes appropriate environmental review 
before issuing nonrenewable permits. Any impacts, such as those 
identified in the comment, would be addressed as a result of that 
environmental review.
Section 4130.8-1 Payment of Fees
    We proposed editorial changes to this section to make it easier to 
read, and to correct a cross-reference in the existing regulations in 
paragraph (f) (paragraph (h) in the proposed rule) to subpart 4160. In 
the final rule we further amended paragraph (h) of section 4130.8-1 to 
make it clear that failure to make payment within 30 days is a 
violation of a prohibited act in section 4140.1 and may result in 
enforcement action. As a practical matter, if a payment is late by only 
a few days, there will not be time for BLM to issue an enforcement 
decision. However, BLM will consider such late payments in determining 
whether a permittee or lessee has a satisfactory record of performance.
    We received numerous comments on grazing fees. Many comments 
favored increasing BLM's grazing fees to help fund monitoring 
activities and range improvements and to offset the costs of managing 
public rangelands. The reasons cited for raising fees included the 
following: The current system skews the market, below-market fees 
promote overgrazing: It is inequitable to increase fees for recreation 
and not for grazing; and it is appropriate to reduce taxpayer burden. 
Comments stated that BLM should no longer subsidize public land 
ranching. Several comments recommended that BLM increase fees to fair 
market value or to private land lease rates but offer ranchers the 
financial incentives of lowered fees in return for conservation 
easements or for management that improves riparian areas, land health, 
and maintenance of wildlife habitat and corridors. Many comments stated 
that BLM should allow competitive bidding for allotments, and listed a 
number of reasons, including economic efficiency, promotion of multiple 
use and rangeland health, reduction of taxpayer burden, and emulation 
of state and eastern national forest grazing fees.
    The grazing program has many purposes. Congress, in relevant 
statute, has directed that a reasonable fee be charged for grazing use. 
There are many requirements that we have under the law, two of which 
are to protect the health of the land and to manage the public lands on 
a multiple use basis, which includes livestock grazing. The 1995 
regulations and the changes contained in this rule combine to protect 
the health of the land while allowing appropriate public land grazing. 
The amount of appropriated funds that go toward the grazing program as 
opposed to that which is returned in various fees and charges does not 
amount to a subsidy. Additionally, there are benefits to the general 
public in open space preserved as private ranch land attached to 
Federal allotments that might not exist but for the grazing program. 
Benefits also include the production of beef as well as the 
preservation of Western heritage that is important to the American 
identity.
    As indicated in the Advanced Notice of Proposed Rulemaking (68 FR 
9964, March 3, 2003), as well as the proposed rule (68 FR 68452, 
December 8, 2003), we were not intending to address grazing fee issues 
in this rulemaking. We specifically stated that increasing grazing fees 
and restructuring grazing based on market demand were outside the scope 
of this rulemaking. We have not analyzed any of the grazing fee related 
options presented in comments, have not addressed grazing fees in the 
proposed or final rule, and have not adopted any of the 
recommendations. The existing fee structure is not altered by this 
rule.
    One comment stated that BLM should implement grazing fee increases 
immediately rather than implement them over 5 years because public land 
ranchers should not be protected from market forces.
    We did not propose any changes in grazing fees nor in how changes 
in grazing fees would be implemented. It appears that the individual 
making this comment misinterpreted our proposal to phase in 
implementation of changes in active use over a 5 year period when such 
changes were in excess of 10 percent. This proposal applied only to 
changes in grazing use--not changes in grazing fees.
    Many comments recommended that the sheep/goat to cattle equivalency 
be changed from ``5 sheep or 5 goats'' to ``7 sheep or 7 goats.'' They 
asserted that this proposed change would not involve a change in any 
portion of the established grazing fee formula, but would track more 
closely the amount of forage used by sheep as compared to cattle. 
Several comment letters pointed out that the 5:1 ratio used by BLM, 
originated from data collected on sheep and cattle grazing in Utah from 
1949 to 1967. The research data was collected by Dr. C. Wayne Cook, who 
used the concept of metabolic body weight to reflect the differences 
between nutritional requirements of different species. Dr. Cook's 
research was based on forage consumption and energy expenditures for 
sheep and cattle and indicated an approximate 5:1 ratio; although Dr. 
Cook concluded that ``these calculations do not represent a conversion 
factor for exchanging numbers of one kind of animal for another on the 
range.'' This early research was also based upon using a 914 lb. 
lactating cow and her calf as an AUM, and a 139 lb. ewe and her lamb 
for forage consumption estimates. The comments stated that in 1991, the 
Forage and Grazing Terminology Committee, with participation from the 
U.S. Departments of Agriculture and Interior, published new 
standardized definitions of animal units. The animal unit was defined 
as a 1,100 lb. non-lactating bovine, and estimated the weight of a 
mature ewe at 147 pounds. This new definition indicated that a 6.5:1 
ratio would be appropriate. Comments also cited a study by the USDA-ARS 
1994, Animal Unit Equivalents: An Examination of the Sheep to Cattle 
Ratio for Stocking Rangelands which supported a 7:1 ratio. This study 
was submitted with comments by several organizations. Several of the 
comments objected to the rationale given in the proposed rule for not 
addressing this issue, which was that the ratio is used for the purpose 
of calculating grazing fee billings and is therefore outside the scope 
of the rule. Comments stated that this issue is not a grazing fee issue 
but an issue of equity and improved management for the health of 
western rangelands.
    The sheep to cattle ratio is strictly a matter involving grazing 
fees and is therefore outside the scope of this rule. Confusion 
regarding the role of the sheep to cattle ratio is understandable due 
to the two distinct definitions of ``animal unit month'' in the grazing 
regulations. However, a sheep to cattle ratio is only stipulated in one 
of these definitions.
    The first definition is used in all aspects of grazing 
administration except fee calculation. See section 4100.0-5. Here, an 
AUM is defined as follows: ``Animal unit month (AUM) means the amount 
of forage necessary for the

[[Page 39481]]

sustenance of one cow or its equivalent for a period of 1 month.'' No 
sheep to cattle ratio is stipulated, no specific amount of forage is 
designated, and no equivalency to any other animals is mentioned.
    The second definition of AUM, the definition at issue here, is 
found at section 4130.8-1(c). It is as follows: ``For the purposes of 
calculating the fee, an animal unit month is defined as a month's use 
and occupancy of the range by 1 cow, bull, steer, heifer, horse, burro, 
mule, 5 sheep, or 5 goats * * *.'' This definition strictly pertains to 
the calculation of fees. The ratios of all kinds and classes of 
livestock to one another are based upon the administration of a month's 
use and occupancy, not the amount of forage necessary for their 
sustenance or any other biological measure. This method of calculating 
the fee facilitates efficiency and consistency in permit administration 
by controlling variables associated with ecological site, vegetation 
composition and/or quality, topography, pasture, allotment, grazing 
management, breed, size, weight, physiological stage, metabolic rate, 
etc.
    On the other hand, one comment stated that each sheep and goat 
should be counted as 1 animal unit because all animals should be 
charged, and because any other way of accounting allows too much 
grazing.
    As previously indicated, issues related to the fee structure, 
including the definition of an AUM for purpose of calculating fees, are 
not being addressed in this rule. In response to this comment, however, 
we wish to clarify that, as defined in section 4100.0-5, an AUM is 
``the amount of forage necessary for the sustenance of one cow or its 
equivalent for a period of 1 month.'' On a forage-consumption basis, 5 
sheep or goats grazing for one month is, by regulation, ``equivalent'' 
to one cow grazing for one month, and therefore comports with the 
regulation.
    One comment stated that BLM's practice of not charging a grazing 
fee for calves under 6 months is antiquated, and BLM should charge a 
fee for such calves.
    As previously stated, we are not addressing issues related to the 
fee structure, including the definition of an AUM for the purpose of 
calculating fees. In response to this comment, however, we provide the 
following information for clarification of the exclusion of calves 6 
months or younger from the calculation of fees. Typically, calves under 
6 months of age are not weaned and therefore rely on their mother's 
milk rather than forage as their primary source of sustenance. Because 
grazing fees are charged for the amount of forage consumed, an animal 
unit is considered to be a mother cow and her calf less than 6 months 
of age, unless the calf has been weaned or becomes 12 months of age 
during the authorized period of use.
    Another comment urged BLM to amend the definition of an AUM in 
section 4130.8-1 by specifying that 2 steers or heifers that are 
between 1 and 2 years old will equal one AUM for the purposes of 
calculating the grazing fee. The comment explained that a heifer will 
not calve until she is over 24 months of age. Her weight is not equal 
to that of a grown cow. A weaned steer or heifer that weighs 500 lbs. 
going on an allotment will not consume forage equal to that consumed by 
a cow. In daily intake, it will require 2 steers to equal 1 cow. The 
comment concluded that this change would allow for more flexibility in 
livestock operations.
    The definition of an AUM in section 4130.8-1(c) is strictly for 
``the purposes of calculating the fee.'' As we have stated throughout 
this rulemaking process, matters involving grazing fees are outside the 
scope of this rule. Therefore, the definition of AUM in section 4130.8-
1(c) is outside the scope of this rule.
    Numerous comments recommended that BLM recognize that the 
surcharge, which is added to grazing fee billings under section 4130.8-
1(d) of the current regulations where an operator does not own the 
livestock that are authorized by permit or lease to graze on public 
lands, is not a grazing fee and eliminate or reduce surcharges.
    We have not changed the requirement that a surcharge be added to 
grazing fee billings where an operator does not own the livestock that 
are authorized by permit or lease to graze on public lands (except that 
the paragraph is redesignated (f) in the rule). The surcharge equals 35 
percent of the difference between current Federal grazing fees and the 
prior year's private grazing land lease rates for the appropriate state 
as determined by the National Agricultural Statistics Service. Sons and 
daughters of the permittee or lessee are exempt from the surcharge 
where they meet the conditions listed at section 4130.7(f).
    The surcharge is BLM's most recent response to a longstanding 
problem, i.e., a potential for windfall profits stemming from pasturing 
agreements. In 1984, Congress enacted legislation that was intended to 
recapture such profits for the Federal treasury. The legislation 
provided that ``the dollar equivalent of value, in excess of the 
grazing fee established under law and paid to the United States 
Government, received by any permittee or lessee as compensation for 
assignment or other conveyance of a grazing permit or lease, or any 
grazing privileges or rights thereunder, and in excess of the 
installation and maintenance cost of grazing improvements provided * * 
* shall be paid to the Bureau of Land Management.'' Continuing 
Appropriations, 1985--Comprehensive Crime Control Act of 1984, Pub. L. 
98-473, 98 Stat. 1839 (1984). The penalty for noncompliance was 
mandatory cancellation of the operator s permit or lease. BLM 
promulgated regulations to implement the 1984 legislation.
    In 1986, the General Accounting Office reviewed the extent to which 
BLM permittees and lessees sublease their grazing privileges, and the 
adequacy of our regulations to control this practice. One of the 
recommendations in the resulting report (RCED-86-168BR) was to require 
that subleasing arrangements be approved for a minimum of 3 years. Such 
a lease constitutes a long-term commitment, and thus reduces the 
potential for large, short-term profits. This recommendation was 
promulgated in 1995, and continues in effect at section 4110.2-3(f).
    In 1992, the Inspector General for the Department of the Interior 
recommended that BLM adopt more stringent measures further reducing the 
potential for collecting windfall profits through pasturing agreements 
or subleasing of base property. Selected Grazing Lease Activities, 
Bureau of Land Management, Report No. 92-I-1364 (Sept. 1992). BLM 
responded by promulgating the existing surcharge provision at section 
4130.8-1(d).
    One comment stated that the surcharge is an obstacle to finding 
ways to adapt to drought conditions. This comment stated that short-
term flexibility is important so that livestock can be moved rapidly 
from an area in decline to an area where forage is available. Some 
other comments stated that the surcharge is an obstacle to adjusting 
stocking rates quickly when weather conditions change, and that the 
surcharge results in the loss of cooperation among ranchers in the 
event of a natural disaster. Finally, some comments stated that the 
elimination of surcharges would improve management flexibility, 
resulting in more effective relationships between BLM and operators, as 
well as better land management.
    Drought and other weather-related conditions are a perennial risk 
in ranching and farming. We are not persuaded that the claimed extra 
increment of risk, which may or may

[[Page 39482]]

not be added by the surcharge, is significant enough to warrant 
rescission.
    Many comments suggested that the surcharge discourages livestock 
owners from entering into pasturing agreements with permittees who pass 
through their costs to livestock owners. According to these comments, 
the surcharge causes permittees to lose opportunities to collect income 
that could help them weather cycles of prosperity and hardship. These 
comments also allege that the surcharge causes destabilization of 
ranching operations, loss of open spaces and western communities, and 
fragmentation of wildlife habitat.
    The concerns expressed in these comments provide no basis for BLM 
to eliminate or reduce the surcharge. Permittees who want to augment 
their income without purchasing livestock may sublease all or some or 
all of their public land grazing privileges to another operator along 
with the base property associated with those grazing privileges. While 
BLM must approve the transfer of the grazing preference and permit in 
connection with the transaction, BLM assesses no surcharge.
    Some comments suggested that the surcharge is too high for 
permittees to profit from their operations while paying the surcharge. 
Several of these comments stated that the surcharge makes public land 
ranchers less competitive than ranchers who use only private land. One 
of these comments stated that the surcharge gives non-resident 
interests a foothold on public rangelands, and increases financial 
pressures for owner-operated ranches. Finally, some of these comments 
included two illustrations intended to show financial difficulties 
resulting from the surcharge. In one illustration, a young rancher is 
forced to abandon his efforts to establish a cow-calf operation. In 
another, a rancher's widow incurs expenses in order to avoid the 
surcharge, so that she and her family can remain on their ranch.
    It is unreasonable to assign the surcharge the sole blame for an 
individual rancher's financial success or failure. Ranching tends to be 
a low-or negative-profit enterprise on both private and public lands 
(Section 3.16 of EIS). There are many factors in addition to the 
grazing fee surcharge that may affect whether a rancher will have 
financial success; the rancher's business acumen, operating loan 
interest rates, mortgage rates, livestock prices, business efficiency 
of the enterprise, and the weather are among those factors. The 
comments we received on financial impacts do not justify changing the 
surcharge regulation.
    Some comments stated that the surcharge was instituted as a 
penalty, and that the surcharge is not a grazing fee issue. To the 
contrary, it was implemented as a component of the grazing fee to 
reduce the potential for windfall profits, as identified by the General 
Accounting Office and the Office of the Inspector General. See 60 FR 
9945.
    One comment stated that BLM should not exempt children of 
permittees from the surcharge in order to reduce the taxpayers' burden 
for the management of public lands. One comment stated that, assuming 
windfall profits are a large enough concern to justify the surcharge, 
BLM should waive it in cases of drought and stewardship contracts, and 
otherwise retain the requirement. Another comment stated that there is 
no windfall profit to the rancher if he brings in outside cattle. A few 
comments suggested that the surcharge should be eliminated because it 
represents an unnecessary workload for BLM. One of these comments 
stated that administering the surcharge takes valuable time away from 
on-the-ground monitoring and management activities. Another stated that 
the surcharge complicates the paperwork for both the operator and the 
land manager. Some other comments requested that we consider providing 
relief from the surcharge in cases of extreme drought, or where 
permittees' finances are strained. Some comments stated that the 
surcharge should not apply where ranchers sublease their private 
property rights in their allotments. These suggestions, like all those 
pertaining to fees, are beyond the scope of this rule. Moreover, none 
of the comments provide persuasive evidence that the original 
rationale--the potential for windfall profits--has changed. We have not 
changed the provision establishing a surcharge.
    One comment stated that BLM should waive surcharges for permittees 
who enter into stewardship contracts to make surplus forage available 
to other operators, pursuant to Section 323 of Public Law No. 108-7. 
This comment states further that a permittee who provides surplus 
forage under a stewardship contract performs a public service by 
helping to preserve ranches, with their attendant benefits to local 
economies, open spaces, and wildlife habitats.
    As we have stated, we are not addressing issues related to grazing 
fees, including surcharge issues. Furthermore, this rule is not 
promulgated to implement the legislation (16 U.S.C. 2104 note) that 
authorizes BLM to enter into stewardship contracts with private persons 
or entities, or with other public entities. That legislation is the 
subject of guidance issued by BLM and the U.S. Forest Service. 69 FR 
4107, 4174 (January 28, 2004).
    One comment stated that BLM should not allow ``after-the-grazing-
season'' payment of grazing fees.
    After-the-grazing-season billing is allowed only where BLM has made 
an allotment management plan (AMP) a part of the permit or lease and it 
provides for the privilege of after-the-grazing-season billing. AMPs 
generally contain grazing systems that prescribe limits of flexibility 
in the number of livestock and period of use, allowing operators to 
adjust grazing practices within such limits to meet the resource use 
and management goals specified in the AMP. BLM may cancel the privilege 
of after-the-grazing-season billing if the operator fails to submit the 
required report of actual grazing use on time, fails to pay the grazing 
fee billing on time, or if BLM finds that the use is erroneously 
reported. BLM believes that after-the-grazing-season billing remains a 
useful management and administrative tool that happens to be 
advantageous to operators. In addition to relieving operators of the 
requirement to pay fees in advance, it provides flexibility for 
operators to make adjustments in grazing use, within pre-set limits, 
without first having to apply for and receive approval for such 
adjustments. BLM benefits from reductions in paperwork, and both BLM 
and operators benefit from the improved working relationships that 
result from AMPs.
    One comment urged BLM to find a means of reimbursing counties for 
bearing the burden of high Federal land ownership in parts of the West. 
They suggested that BLM allocate a portion of grazing lease and permit 
fees to the counties.
    This issue is not addressed in the regulations. It is, however, 
addressed in the TGA. Under 43 U.S.C. 315i, 12\1/2\ percent of revenues 
from grazing permits and 50 percent of revenues from grazing leases are 
distributed to the states in which the lands producing the revenues are 
situated. The state legislature then decides how to spend those funds 
for the benefit of the affected counties. We note also that counties do 
receive Federal payments in lieu of property taxes under 31 U.S.C. 
6901-6907. (In 2003, those payments totaled $2,050,000.)
Section 4130.8-3 Service Charge
    The proposed rule removed the reference to conservation use in this 
section to conform to the Tenth Circuit

[[Page 39483]]

decision. We also proposed to raise service charges for issuing 
crossing permit, transferring grazing preferences, and canceling and 
replacing grazing fee billings.
    The proposed rule provided for the following increases in service 
charges:

------------------------------------------------------------------------
                                              Current        Proposed
                 Action                   service charge  service charge
------------------------------------------------------------------------
Issue crossing permit...................             $10             $75
Transfer grazing preference.............              10             145
Cancel and replace grazing fee billing..              10              50
------------------------------------------------------------------------

    Upon internal review, we have expanded the third action in the 
table to include a $50 fee for supplemental grazing fee billings, which 
BLM employs from time to time in lieu of canceling and replacing 
billings. The current regulations include a service charge for 
supplemental as well as replacement billings, so this change makes the 
final rule consistent with the current regulations except as to the 
amount.
    Some comments generally supported increases in the service charges, 
stating that they would allow BLM's services to be self-supporting, or 
stating that the service charges should better reflect the costs of 
grazing administration. However, some of these comments objected to the 
size of the proposed increases. One comment stated that the maximum 
service charge should be $25. Another stated that increases ranging 
from 500 percent to 1,450 percent appeared excessive. Finally, one 
comment stated that the proposed service charges were too low, and 
suggested $275 for the issuance of a crossing permit, $2,045 for the 
transfer of a grazing preference, and $250 for the cancellation and 
replacement of a grazing fee billing, in order to shift the full cost 
of those services to permittees.
    Some comments opposed service fee increases for a number of 
reasons. For example, they stated that increases would not improve 
working relations between BLM and permittees, would not address legal 
issues or administrative inefficiencies, and would be too expensive for 
operators to afford. One comment stated that BLM should reduce the 
costs of providing services rather than increasing service charges. 
Some comments objected specifically to the proposed service charge for 
issuance of a crossing permit. One comment stated that crossing permits 
merely authorize an operator access to his own allotment, and many such 
permits are consistent with historical usage and/or consent of 
neighboring operators. Some comments supported the increases for 
preference transfers and for canceling and replacing a grazing bill, 
but stated that increasing the service charge for crossing fees would 
provide operators a disincentive to report a need to cross lands 
occupied by others. These comments stated that BLM needs to know when 
operators are crossing public lands occupied by others, that there are 
safety concerns when operators trail livestock along highways, and that 
there may be concerns about insurance.
    We believe the proposed service charges will not damage working 
relationships with permittees, will contribute to the goal of covering 
a portion of administrative costs, and will not likely lessen BLM's 
goal of protecting rangelands. We do not believe that operators will 
avoid contacting BLM for a crossing permit in order to avoid the 
service charge, since this could lead to a trespass violation with 
serious consequences. We also believe that the proposed service charges 
are reasonable, as required by Section 304(a) of FLPMA, 43 U.S.C. 
1734(a). They range from $50 to $145, reflecting the processing costs 
associated with transactions that require BLM officers to engage in 
analysis and decisionmaking activities. Issuing a crossing permit 
involves analysis of terms and conditions for the grazing use that is 
incidental to a crossing. The transfer of a grazing preference requires 
findings with respect to base property, qualifications, and other 
matters. The $50 service charge for the cancellation and replacement of 
a grazing fee billing will be assessed only when a BLM officer must 
change a billing notice because a permittee or lessee files an 
application to change grazing use after BLM has issued billing notices 
for the affected grazing use. That service charge can be avoided 
altogether merely by applying to change grazing use, in those cases 
where a permittee knows of the grazing use change, before BLM issues 
the grazing fee billing for grazing use specified in the permit or 
lease. This typically occurs 30 days before the first grazing begin 
date listed on the permit or lease and 30 days after BLM has provided 
the operator a ``courtesy grazing application'' that lists grazing use 
shown on the permit or lease and invites application for changes in 
this use as may be needed or desired by the permittee or lessee. 
Additionally, BLM will not assess the service charge if, after a 
grazing fee billing is issued, BLM changes the grazing fee bill because 
we have approved an operator's grazing application not to use all or a 
portion of his preference for reasons of resource conservation, 
enhancement, or protection.
    Some comments suggested that BLM add a service charge of $50 to $75 
for filing a protest, and $100 to $150 for filing an appeal, in order 
to reimburse BLM for a portion of the initial costs of processing 
protests and appeals. One comment supported the proposed service 
charges, and suggested that BLM add a service charge of about $50 to 
accompany applications for cooperative agreements or permits for range 
improvements, stating that permittees and lessees would become more 
serious about implementing a project, having more invested in it.
    Instituting additional service charges is not necessary or 
appropriate at this time. Parties, including permittees and lessees, 
may be discouraged from filing legitimate protests or appeals of 
grazing decisions if they have to pay service charges. Further, 
aggrieved parties do not generally have to pay service charges in order 
to seek administrative remedies in other BLM programs. Applications for 
range improvements should not be subject to service charges because 
range improvements are useful to BLM in rangeland management, and 
because the public receives more palpable benefits from range 
improvements than they do from crossing permits, transfers of grazing 
preference, or the cancellation and replacement of a grazing fee 
billing.
    One comment stated that, instead of increasing service charges, BLM 
should increase grazing fees to fair market value because such fees 
would eliminate the need for the proposed service charges.
    As previously stated, grazing fees and related issues are not being 
addressed in this rulemaking. BLM believes the proposed changes in 
service charges respond to the increasing need for cost recovery. 
Further, it would not be fair to operators who do not need to transfer 
their preference, obtain a crossing

[[Page 39484]]

permit, or ask for a rebilling, to subsidize those who do.
    One comment urged BLM to clarify when BLM or the permittee will 
absorb charges for grazing fee billings under certain circumstances, 
for example, when permittees take temporary nonuse at the suggestion of 
BLM due to continuing drought.
    Section 4130.8-3(b) in the proposed rule provides that BLM will not 
assess a service charge when BLM initiates the action. That provision 
is adopted as proposed. Thus, if BLM suggests temporary nonuse due to 
drought, there will be no service charge.
    One comment noted the absence of specific information on the 
proposed increases in service charges.
    In response to this concern, we included in the final EIS 
additional information on current average costs associated with the 
proposed service charges. Specific information on the average cost of 
issuing billings, free use permits, exchange of use permits, trailing 
permits, temporary non-renewable permits, and the average cost of 
processing preference transfers including issuance of a permit to a 
preference transferee with all NEPA compliance, ESA consultation, and 
protests and appeals, and data management support including GIS costs 
during Fiscal Year 2003, is found in Section 2.2.15 of the final EIS
Section 4140.1 Acts Prohibited on Public Lands
    In the proposed rule, we amended the prohibition of the placement 
of supplemental feed on public lands in section 4140.1(a)(3) to make it 
clear that the prohibition applies if the placement of supplemental 
feed was without authorization or contrary to the terms and conditions 
of the permit or lease.
    We also revised section 4140.1(b)(1)(i) 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. We also amended 
paragraph (b) to make it clear that the acts listed in the paragraph 
are prohibited on all BLM-administered lands, rather than that the acts 
are prohibited if they are related to rangelands.
    We amended section 4140.1(c) to limit 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. It pertains to 
violations of certain Federal or State laws or regulations, including 
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. It also 
pertains to the violation of specific laws and regulations including 
the Bald and Golden Eagle Protection Act, ESA, and any provision of the 
regulations concerning wild horses and burros, and to the violation of 
state livestock laws or regulations relating to branding and other 
livestock related issues. We retained the provisions that 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 in paragraph (c).
    Many comments supported the proposed changes to the section on 
prohibited acts. They agreed that BLM should only enforce actions 
against permittees if the violations occur while grazing on their 
permitted allotments. Many comments stated that the proposed changes 
will promote better cooperation with operators.
    Many comments opposed the changes in section 4140.1 that applied 
civil penalties only if the acts prohibited took place on the allotment 
that was subject to the permit or lease. They stated that permittees 
and lessees should be subject to civil penalties set forth in section 
4170.1-1 for performance of prohibited acts in section 4140.1 on any 
public lands, not just those public lands that are part of their 
grazing permit or lease. The comments gave a number of reasons for this 
view. They stated that this policy seems inconsistent with the stated 
intent of the rule to promote strong partnerships with good stewards of 
the land by development of simple and practicable ways to attain our 
shared purpose of sustaining open space, habitat, and watershed values; 
permittees should be held accountable and responsible for all local, 
state, and Federal resource-related laws; it weakens BLM's enforcement 
of terms of its own leases and permits; it has a negative effect on 
wildlife and their habitats and could lead to the degradation of 
resources; no analysis is provided for the validity of or necessity for 
the provision; it makes it easier for permit holders to violate 
environmental laws without fear of repercussions to their permit; it 
should require tougher enforcement, not more lenient enforcement; a 
convicted criminal should not be able to hold a grazing permit; and BLM 
should discontinue leasing to individuals who violate BLM requirements 
on their allotments.
    We intend the change in this provision to clarify whether or not 
the performance of the prohibited act must occur on the allotment for 
which the permittee or lessee has a BLM permit or lease. There is also 
some concern that some of the laws and regulations identified in this 
category of prohibited acts could result in penalties against 
permittees and lessees that are unfair because they involve a secondary 
penalty for a violation of a law or regulation whose primary 
enforcement is by another agency, with its own separate statutory 
enforcement and penalty authorities. BLM permittees and lessees are 
still accountable and responsible for violations of local, state, and 
Federal resource-related laws, since they are subject to these other 
penalties for violations of the acts listed in section 4140.1(c). These 
other penalties will still serve as a deterrent to violation of the 
prohibited acts. In addition, if the violation occurs on the allotment 
of the BLM permittee or lessee, that person is subject to the penalties 
in subpart 4170. The amendment in section 4140.1(c) has no effect on 
enforcement of violations occurring on the permittee's or lessee's 
allotment. BLM has not frequently had need to apply this provision of 
the grazing regulations in the past. A prospective permittee or lessee 
must meet the requirements stated in section 4110.1 and have a 
satisfactory record of performance under section 4130.1-1(b). The 
permittee or lessee must have substantial compliance with the terms and 
conditions applied to their grazing permit or lease and with the rules 
and regulations applicable to that permit or lease. The overall purpose 
for our amendments of the grazing regulations, including those in this 
section, is to develop strong relationships with all partners. As to 
whether or not a convicted criminal should be able to hold a permit, as 
we stated earlier, it is not Federal or BLM policy to exclude a person 
who has been convicted of a crime, paid his penalty or served his 
sentence, and been rehabilitated, from gainful employment.
    Comments stated that the rule should not prohibit failure to make 
grazing use as authorized for 2 consecutive fee years, saying only that 
the provision does not make sense. A second comment recommended that 
BLM amend the provision that prohibited failure to make substantial 
grazing use as authorized for two consecutive fee years. The comment 
cited the proposed rule provision that states ``the BLM may deny nonuse 
if the permittee cannot justify that nonuse is for resource 
stewardship,'' and recommended that the rule provide a clear exception 
if nonuse would be beneficial for listed or sensitive species and their 
habitats.
    Another comment stated that the rule should not cancel permitted 
use for failure to make substantial use as authorized or for failure to 
maintain or

[[Page 39485]]

use water base property because threats to cancel use present an 
obstacle to developing a financial plan acceptable to a lender.
    The prohibition of failing to make grazing use as authorized for 2 
consecutive fee years ensures that those who acquire grazing permits or 
leases will use them for the purposes intended, namely to graze 
livestock. Originally, the purpose of this regulation was to discourage 
acquisition of base property and grazing permits or leases by land 
speculators whose primary business was not livestock-related. It may 
now also be applicable to those who acquire ranch base property and a 
permit or lease, yet do not graze so that their permitted allotments 
are ``rested'' from grazing, ostensibly realizing conservation 
benefits. Failing to make grazing use as authorized for 2 consecutive 
fee years would occur when a permittee or lessee does not obtain BLM 
approval for nonuse of his permit or lease and does not graze livestock 
as authorized by his permit or lease for 2 years in a row.
    BLM believes the rule, and the proposed changes, are rational and 
do not constitute any threat to operators' finances. Failure to make 
substantial grazing use as authorized for 2 years, and failure to 
maintain or use water base property, are listed as prohibited acts so 
that BLM can ensure that permittees are grazing at authorized levels. 
This helps ensure accurate monitoring and data collection, and in 
general supports management of the public lands. The provision is also 
helpful in recognizing whether someone does not intend to graze 
livestock. Such recognition can be applicable to BLM's implementation 
of FLPMA, which designates livestock grazing as a ``principal or major 
use'' of public lands. 43 U.S.C. 1702(l).
    No amendment of this provision is necessary. Under the final rule, 
the authorized officer may grant nonuse for the number of years needed 
to provide for natural resource conservation, including threatened and 
endangered species. The present regulations that limit BLM's ability to 
allow for annual temporary nonuse for more than 3 years were changed. 
Under the final rule, temporary nonuse can be approved annually for 
longer than 3 years. BLM believes it is important to require an annual 
request for temporary nonuse. The annual review process allows BLM to 
assess the reasons for the request and to gauge the success of range 
recovery (if temporary nonuse was issued for resource conservation 
purposes). To do otherwise could lead to less active BLM oversight and 
management of public lands. The provision that prohibits failure to 
make substantial grazing use as authorized for 2 consecutive years 
applies to situations where a nonuse application has not been approved.
    Several comments stated that BLM should not make it a prohibited 
act to place supplemental feed on public lands without authorization, 
asserting that BLM has no personnel who are knowledgeable in livestock 
nutrition.
    The prohibition on placing supplemental feed on public lands 
without authorization is already stated in the regulations; it is not 
new in this rule. This rule does, however, add a reminder that 
information regarding the authorization of placement of supplemental 
feed on public lands may be in the terms and conditions of the permit 
or lease, and those must be adhered to as well. We disagree with the 
assertion that BLM has no personnel knowledgeable in livestock 
nutrition. One of the intents of the prohibited act on placing 
supplemental feed on public lands without authorization is to manage 
distribution of livestock for improved livestock and rangeland 
management on an allotment. The requirement for BLM authorization of 
supplemental feeding should reduce the risk of spread of noxious weeds 
and other undesirable exotic plants that could be introduced by 
supplemental feeding. Also, supplemental feeding can influence diet 
selection of the livestock among established plant species, and thus 
potentially change plant species composition on the allotment.
    Comments stated BLM should not make it a prohibited act for a 
permittee to violate Federal or state laws relating to placement of 
wildlife destruction devices, pesticide application or storage, 
alteration or destruction of stream courses, water pollution, illegal 
take, harassment or destruction of fish and wildlife, or illegal 
removal or destruction of archaeological resources. The comment stated 
that these provisions will tend to remove permittees from Federal 
lands.
    BLM disagrees entirely with the implication of the comments that 
unless permittees are allowed to perform these acts, they will be 
driven from public lands. The vast majority of BLM permittees and 
lessees do not perform these acts and yet are able to maintain 
commercial livestock enterprises that depend upon grazing use of public 
lands. Such acts can have a negative impact on the natural resource 
values of the allotment.
    One comment stated that BLM should not make it a prohibited act for 
a permittee to violate state brand laws because BLM does not have 
authority to enforce state brand laws.
    BLM agrees it does not have the authority to enforce state brand 
laws. A permittee or lessee who violates state brand laws would be 
subject to state penalties enforced by the state, as well as the 
Federal penalties set forth in this rule. BLM believes that violation 
of state brand laws is a significant infraction that warrants the 
penalties as stated in the grazing regulations. While states enforce 
their respective brand laws, compliance with such laws is also an 
integral part of a permittee's operations on public lands, and 
facilitates BLM's own management of public lands. Section 
4140.1(c)(1)(ii) makes it clear that being convicted under the state 
enforcement authority is a condition precedent for being found in 
violation of this prohibited act. This provision will not be removed 
from the rule.
    Several comments recommended that BLM adopt as a prohibited act the 
provision set forth in Alternative 3 of the EIS: ``Failing to comply 
with the use of certified weed-seed free forage, grain, straw or mulch 
when required by the authorized officer. Comments expressed concern 
about the adverse impacts of invasive plants on native ecosystems, and 
stated that such a provision would contribute to the ongoing efforts to 
control the alarming invasion and spreading of exotic and noxious plant 
species and would benefit wildlife and watersheds.
    BLM has decided not to pursue adding a prohibited act to section 
4140.1(b) addressing non-compliance with weed-seed free forage 
requirements on public lands at this time. We agree that promoting the 
use of weed-seed free forage products on public land will help control 
the introduction and spread of invasive and noxious plants. BLM will 
continue to develop and implement a nationwide weed-seed free forage, 
grain, and mulch policy for the public lands, working closely with 
state and local governments. We will also continue to implement our 
Partners Against Weeds strategy plan, which includes measures for 
controlling and preventing the spread and introduction of noxious and 
invasive weeds.
    One comment from a state department of agriculture urged BLM to 
remove all of section 4140.1(c) of the proposed rule. The comment 
stated that, if a permittee or lessee were convicted of a crime and 
paid the consequences under that conviction, any additional penalties 
imposed by BLM or another entity would be arbitrary, and that there are 
other ways to encourage good stewardship of the public lands.
    The intent of section 4140.1(c), as amended by this rule, is to 
help enforce provisions of prohibited acts that would

[[Page 39486]]

affect the integrity of natural resources on the allotment on which the 
permittee or lessee has a grazing permit or lease. Stewardship of the 
land includes protection of endangered species and wildlife, protection 
from pollution by hazardous materials, protection of streams and water 
quality, and protection of cultural resources. In this rule, as 
explained above, we have limited the scope of paragraph (c) to actions 
on the allotment in question.
    One comment suggested reorganizing section 4140.1(c) of the 
proposed rule so that the Bald and Golden Eagle Protection Act (BGEPA) 
and State livestock laws and regulations are not contained in the same 
numbered paragraph (3), even though they are in separately numbered 
subparagraphs (i) and (ii). The comment stated that there was no nexus 
that justified their designation together under paragraph (3).
    We have not adopted this comment in the final rule. There is no 
basis for changing the organization of section 4140.1(c)(3). There is 
no qualitative difference between numbering the references to the BGEPA 
and the state livestock laws (c)(3) and (c)(4)), respectively, and 
numbering them (c)(3)(i) and (c)(3)(ii). The nexus between them, if any 
were needed, is that the same penalty applies.
    One comment stated the proposed rule implies that a permittee 
convicted of violating the BGEPA on any lands outside his BLM grazing 
permit boundary would not risk loss of grazing privileges. The comment 
noted that the BGEPA (16 U.S.C. 668(c)) provides specifically for 
revocation of permits for violations of the BGEPA regardless of where 
the violation occurs (i.e., the violation does not have to occur within 
the grazing permit boundary), and stated that the grazing rule should 
be consistent with the BGEPA.
    The BGEPA provides authority for the Director of BLM to impose a 
penalty of immediate cancellation of leases, licenses, permits, or 
agreements authorizing livestock grazing on Federal lands for 
violations of the BGEPA. The statute, however, leaves the decision of 
whether to cancel a lease, license, permit, or agreement to BLM's 
discretion. The final rule does not alter BLM's discretionary authority 
granted under the BGEPA, but would clarify and limit BLM's enforcement 
authority under its grazing regulations by limiting its application to 
prohibited acts performed by a permittee or lessee on his allotment 
where authorized to graze under a BLM permit or lease. BLM permittees 
and lessees are still accountable and responsible for violations of the 
BGEPA, which carries civil and criminal penalties other than permit or 
lease cancellation (16 U.S.C. 668(a) and (b)). These other penalties 
will still serve as a deterrent to violation of the BGEPA on areas 
other than the allotment where the permittee or lessee is authorized to 
graze.
    Another comment expressed the broader concern that the rule does 
not provide for revocation of a permit when a prohibited act occurs 
outside of the grazing permit boundary. The comment stated that this 
contradicts the stated objectives of the proposed rule: To improve 
cooperation, promote practical mechanisms for assessing rangeland 
change, and enhance administrative efficiency. Further, the comment 
stated that the rule may result in more livestock trespass violations 
on Fish and Wildlife Service refuge lands. The comment noted that the 
current rule, which allows BLM to determine whether cancellation or 
suspension of a permit is appropriate, likely helps deter trespass 
violations.
    Finally, the commenter stated that the FEIS should report the miles 
of boundaries shared by BLM grazing allotments and refuge land and 
assess the implications of the proposed rule for the FWS mission.
    BLM believes it is appropriate that penalties applied to grazing 
permits be directly linked to the abuse of the permission being granted 
by the permits. In BLM's view, the most effective and direct deterrent 
to livestock trespassing onto refuge lands or any other Federal lands 
is for the managers of those lands to take action directly against the 
violator. This is preferable to relying upon ``secondary'' sanctions 
against the violator's BLM permit.
    BLM does not disagree that the threat of additional penalty against 
an operator's BLM permit for violation of another Federal or state 
agency's regulations has deterrence value. Violations of Federal and 
state law and regulation already carry penalties. To include an 
additional penalty in the grazing regulations unintentionally and 
unfairly treats grazing permittees inequitably. The 1995 regulations 
single out a particular use for additional penalty to which other 
violators are not subject. We do not expect that the proposed change 
will have any effect on lands adjacent to BLM-managed lands. 
Furthermore, as noted above, existing law should be sufficient to 
protect against trespass. BLM remains committed to cooperating with 
other Federal and state land managers on a case-by-case basis to 
address incidents of livestock grazing trespass.
    Finally, the final rule does not prevent BLM from penalizing a 
permittee if the permittee unlawfully trespasses on another allotment. 
Nor does the final rule prevent BLM from penalizing a permittee by 
altering his permit if he is convicted of destroying government 
property on Federal lands other than on his allotment (section 4170.1).
    One comment suggested that the regulations should provide that any 
grazing use that was canceled as a penalty is available to other 
applicants.
    Grazing permits and leases that are canceled due to noncompliance 
with terms and conditions of a permit may be available under section 
4130.1-1 to other qualified applicants who apply for grazing use on 
that allotment.

Subpart 4150--Unauthorized Grazing Use

Section 4150.3 Settlement
    In the proposed rule we amended section 4150.3 by adding a new 
paragraph (f) specifying 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.
    In the final rule, we amended paragraph (f) to make it clear that 
``this part'' refers to all of part 4100, for the benefit of readers 
who may not be familiar with CFR conventions. We also amended this 
paragraph to make it clear that BLM will allow grazing pending the 
completion of the administrative appeal process, rather than judicial 
appeals.
    A few comments addressed this section of the proposed rule. One 
urged BLM to change the regulations to provide that a nonwillful 
livestock grazing use violation can only occur upon a finding that a 
volitional act and/or an act of negligence by the permittee or lessee 
(or an affiliate) caused the violation. It stated that section 4150.3 
should provide that an act of negligence by the permittee or lessee is 
required as a precedent to a finding of nonwillful livestock grazing 
trespass, so that BLM does not cite permittees and lessees for trespass 
when, for example, livestock stray from their authorized pasture 
because another party left a gate open.
    BLM disagrees with this view. Nonwillful unauthorized grazing use 
occurs when the operator is not at fault, such as when cattle stray 
from their authorized place of use because a third party left a gate 
open. In contrast, willful unauthorized grazing use occurs, for 
example, when the use results from a volitional act and/or act of 
negligence

[[Page 39487]]

committed by a permittee, lessee, or affiliate. The grazing regulations 
continue to provide that, under certain circumstances, nonwillful 
violations are eligible for nonmonetary settlement. It also remains a 
prohibited act under the grazing regulations for any person to fail to 
re-close any gate or livestock entry during periods of livestock use.
    Another comment urged that we add language to section 4150.3(e) to 
clarify that BLM cannot withhold a grazing authorization unless: (a) 
Attempts at settlement have failed; (b) BLM has issued a decision that 
finds there has been a violation, demands payment for the amounts due, 
and provides that grazing will not be authorized until payment has been 
received; and (c) any petition for stay of such a decision has been 
denied. The comment stated that some BLM offices have been withholding 
grazing authorizations based on allegations of trespass that have not 
been finally determined upon review, and that this is contrary to legal 
administrative procedure.
    BLM agrees that the regulations require clarification on this 
matter. Some BLM field staff persons have erroneously interpreted 
section 4150.3(e) to mean that they must refuse to process grazing 
applications of and issue grazing fee billings to an alleged trespasser 
during the period after BLM has issued a decision demanding payment but 
before the decision has been finally determined upon review. The 
proposed rule included new Sec.  4150.3(f) providing that, should a 
decision issued under section 4150.3(e) that demands payment for 
outstanding unauthorized use fees and penalties be administratively 
stayed, BLM will authorize grazing under the regulations pending 
resolution of the appeal. BLM may not withhold authorization to graze 
under this section unless BLM has issued a decision under subpart 4160 
demanding payment for the amount due, the decision is in effect, and 
the amount has not been paid.
    One comment urged BLM to provide in the regulations for mandatory 
cancellation or suspension of grazing authorizations, or denial of 
applications for grazing use, if permittees or lessees fail to pay 
trespass fees and fines that BLM finds are due under section 4150.3, so 
that the permittee or lessee does not unduly evade or delay payment.
    The regulation referenced by the comment provides that ``[t]he 
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.'' This regulation gives 
BLM permission to take action under 4160--in other words, issue a 
grazing decision--in this circumstance. Subpart 4160 requires BLM to 
issue a grazing decision, with right of protest and appeal, to cancel 
or suspend grazing authorizations or to deny approval of applications 
for grazing use. BLM sees no need to mandate that failure to pay 
trespass fees will result in suspension. Facts and circumstances in 
each trespass case are unique, and BLM prefers to retain its discretion 
to determine when it would be appropriate to cancel or suspend a permit 
or lease.

Subpart 4160--Administrative Remedies

Section 4160.1 Proposed Decisions
    Existing section 4160.1(c) provides that an authorized officer may 
elect not to issue a proposed decision where he has made a 
determination in accordance with section 4110.3-3(b) or section 
4150.2(d), which allow under certain circumstances the authorized 
officer to make a decision effective upon issuance or a date specified 
in the decision. The final rule amends section 4160.1(c) to reflect the 
addition of section 4130.6-2(b) in this rule, and the addition of 
section 4190.1(a) in a previous rulemaking (68 FR 33804, June 5, 2003). 
The final rule now includes cross-references to all BLM grazing 
regulations allowing decisions to be made effective upon issuance or a 
date specified in the decision.
    We also proposed to amend this section to provide that a BA or BE 
that BLM prepares for purposes of the ESA (16 U.S.C. 1531-1544) is not 
a proposed decision for purposes of a protest to BLM, or a final 
decision for purposes of an appeal to OHA under the TGA. Pursuant to 
the Secretary's supervisory authority, this provision prospectively 
supersedes the decision in Blake v. BLM, 145 IBLA 154, 166 (1998), 
aff'd, 156 IBLA 280 (2000), which held that the protest and appeal 
provisions of 43 CFR subpart 4160 apply to a proposed change in a 
permit or lease evaluated in a BA or BE.
    Proposed section 4160.1(d) provided that a BA or BE prepared for 
purposes of an ESA consultation or conference is not a decision for 
purposes of protest or appeal. The final rule clarifies the proposed 
rule by adding the words ``by BLM'' after the word ``prepared.''
    Comments opposed this section and stated that it effectively 
eliminates all administrative appeals of grazing permit or lease terms 
and conditions that result from a BA and related BO. Other comments 
said that where the terms and conditions of a grazing lease or permit 
were required by a BO, the terms and conditions should be subject to 
appeal if they were substantially the same terms and conditions 
submitted by BLM in a BA or BE. Both the TGA, 43 U.S.C. 315, and the 
APA, 5 U.S.C. 551 et seq., provide for administrative appeals, comments 
noted.
    Other comments pointed out that proposed section 4130.3(b)(1) 
presented similar problems. That section states that permit or lease 
terms and conditions may be protested and appealed unless they are not 
subject to review by OHA. This would include grazing permit or lease 
terms and conditions required as a result of ESA consultation. Comments 
opposed this provision, arguing that it denied permittees and members 
of the public opportunities to correct mistakes in an agency BE.
    Regulations at 50 CFR 402.02 and 402.12 make it clear that a BA or 
BE is an intermediate step that BLM will take in assessing its 
obligations under the ESA, and thus is not subject to appeal. A BA or 
BE does not grant or deny a permit application, modify a permit or 
lease, or assess trespass damages, which are examples of BLM decisions 
that are subject to appeal.
    A BA or BE is not a proposed decision for purposes of a protest to 
BLM, or a final decision for purposes of an appeal to OHA under the 
TGA. The final rule at section 4160.1(d) prospectively supersedes a 
requirement imposed by IBLA in Blake v. BLM, 145 IBLA 154 (1998), 
aff'd, 156 IBLA 280 (2002), that BLM issue a BE or BA as a proposed 
decision that may be protested and appealed (as if it were a grazing 
decision), even though a BE or BA does not take action, require action, 
or implement anything.
    As explained in the preamble to the proposed rule at 68 FR 68464, a 
BA or BE is a tool that FWS and NOAA Fisheries use to decide whether to 
initiate formal consultation under Section 7 of the ESA. Formal 
consultation results in a BO prepared by FWS. TGA Section 9 hearings 
are administered by OHA, a body that has been delegated authority 
regarding public land use decisions, but has not been delegated 
authority over FWS actions. See Secretarial Memorandum of January 8, 
1993 (Secretary Lujan); Secretarial Memorandum of April 20, 1993 
(Secretary Babbitt). The ESA does not require or authorize the creation 
of an administrative appeal procedure for biological opinions, and 
instead authorizes direct suit in a Federal court. 16 U.S.C. 1540(g). A 
BO may be challenged in Federal court under the APA. Bennett v. Spear, 
520 U.S. 154,

[[Page 39488]]

178 (1997). Thus, direct legal remedies are already in place and OHA 
has not been delegated administrative review authority over BOs issued 
by FWS.
    OHA's review is limited to the merits of the BLM decision and can 
not extend to the validity of the BO findings or the FWS procedures 
used to produce the opinion. This final rule does nothing to change 
this longstanding policy, which is summarized in Secretary Lujan's 
memorandum as follows: ``In summary, OHA has no authority under 
existing delegations to review the merits of FWS biological opinions. 
Any review of biological opinions would necessarily be limited to the 
federal district courts pursuant to Section 11(g) of the ESA. The 
longstanding administrative practice of not providing OHA review of the 
biological determinations of the FWS under the ESA, the specific 
remedies provided by the ESA itself, and the need for expedited 
treatment, all militate against a change to the existing delegations.''
    One comment stated that BLM should clarify exactly which terms and 
conditions in a permit or lease resulting from a biological opinion may 
be appealed to the Office of Hearings and Appeals (OHA).
    Section 4130.3(b)(1) of the proposed rule included a provision that 
specified that the terms and conditions mandated by a biological 
opinion are not subject to review by OHA. BLM intends to drop this 
provision in the final rule. The regulatory language in the proposed 
rule at section 4130.3-3(b) reflected Departmental policy as explained 
in two 1993 Secretarial memoranda. These memoranda state that the OHA 
does not have the authority to review biological opinions. Such review 
is provided by the Federal Courts through Section 11(g) of the ESA. 
Although we have removed proposed paragraph (b)(1) in the final rule, 
BLM is not changing its longstanding policy. BLM is dropping proposed 
paragraph (b)(1) because the Secretarial memoranda are sufficient.
    Another comment stated that an appeal to OHA should not be allowed 
as to stipulations resulting from interagency programmatic 
consultations, or from interagency coordination intended to substitute 
for formal consultation. The comment stated that if these stipulations 
could be removed through appeal, it may be necessary to re-initiate 
formal consultation or renegotiate interagency agreements, which would 
negate the streamlining efforts by both BLM and the FWS.
    Issues of OHA jurisdiction are better addressed in the OHA 
regulations or through Secretarial directives. BLM must avoid 
jeopardizing the continued existence of any listed species, and will 
formally consult with the FWS and the National Marine Fisheries Service 
whenever appropriate.
    One comment suggested that the rule be amended at section 4160.1(d) 
to state that, although biological assessments are not decisions that 
can be protested or appealed, the facts and findings of biological 
assessments may be challenged in a grazing protest or appeal.
    Section 4160.1(d) states that a BA prepared for the purposes of an 
ESA consultation or conference is not a decision for purposes of 
protest or appeal. This provision ensures consistency with the ESA 
regulations, such as 50 CFR 402.02 and 402.12, which define BAs as 
documents that evaluate the potential effects of an action or 
management proposal on listed or proposed species and designated or 
proposed critical habitat. BAs are not documents that authorize an 
action. Therefore, BAs cannot be protested or appealed. BLM believes 
that the language in the final rule at section 4160.1(d) is clear and 
appropriate in this regard, and we have not adopted the comment in the 
final rule.
    One comment stated that whether grazing may continue while an 
administrative stay is in effect is a decision that should be based on 
what is best for the resource. A similar comment stated that 
maintaining or improving rangeland health should be the overriding 
concern in grazing management, including how the range is managed 
during appeal. Another comment asked specifically that BLM clarify how 
threatened and endangered species would be protected when grazing 
continues during OHA consideration of an appeal, and how any loss of 
species or habitat would be remedied once the appeal is resolved.
    The proposed rule recognizes the continuing nature of grazing 
operations and is consistent with the Administrative Procedure Act 
requirement that ``a license with reference to an activity of a 
continuing nature'' does not expire until an agency makes a new 
determination (5 U.S.C. 558). In light of this, section 4160.4(b) 
provides that grazing may continue when a decision affecting a grazing 
permit or lease has been stayed by OHA. BLM believes that actively 
managing the use of the rangelands and not automatically halting 
grazing when a stay is issued is consistent with BLM's obligations 
under FLPMA and the TGA.
    In response to comments, BLM plans to limit the application of 
paragraph (b) to certain types of grazing decisions--
     Those that cancel or suspend a permit or lease, or change 
any term or condition during its current term or renew a permit or 
lease,
     Those that issue or deny a permit or lease to a preference 
transferee; or
     Offer a preference transferee a permit or lease with terms 
and conditions that differ from those in the previous permit or lease.
    In addition, BLM is entirely removing proposed section 4160.4(c) 
from the rule.
    BLM agrees that the condition of the rangeland and protection of 
species listed under the ESA must be considered in making grazing 
decisions and in instances where there is a stay of a decision. BLM 
takes these matters into account in making grazing decisions and, when 
necessary to protect resources or species, can issue a decision that is 
effective immediately (section 4110.3-3(b)(2) in the final rule). The 
IBLA also has the flexibility to issue a stay in whole or in part so 
that resources and species may be protected (43 CFR 4.21(b)(4)).
Section 4160.37 Final Decisions
    We proposed to amend section 4160.3 by moving the discussion of 
appeal procedures in paragraph (c) to, and combining it with, existing 
section 4160.4 as a new paragraph (a).
    We also moved and revised paragraphs (d) and (e) of section 4160.3, 
regarding grazing use when OHA has granted a stay of a final grazing 
decision, to section 4160.4.
    In the final rule, we have added necessary cross-references to 
paragraph (c) to conform the paragraph to changes made in other 
sections in this rule and in a previous final rule (68 FR 33804, June 
5, 2003). The final rule now includes cross-references to sections 
4110.3-3(b), 4130.6-2(b), 4150.2(d) and 4190.1(a), all of which allow 
under certain circumstances for a decision to be made effective upon 
issuance or a date specified in the decision.
    Comments urged that BLM amend section 4160.3 so that the authorized 
officer cannot make decisions adverse to the livestock grazing 
permittee or lessee effective immediately unless he has found after a 
hearing on the record that the current authorized grazing use poses an 
imminent likelihood of irreparable resource damage. The comment also 
recommended that BLM be barred from making a decision effective 
immediately before the hearing unless the authorized officer declares 
an emergency, after having applied the IBLA standards for a

[[Page 39489]]

stay found in 43 CFR 4.21(b)(1), in which case the decision would be in 
effect only for the 30-day period allowed for filing an appeal. In 
addition, the comment recommended retaining the consultation 
requirements already proposed for section 4160.1. The comment contended 
that BLM grazing decisions over the past 10 years have not been based 
on state of the art rangeland studies, and that the OHA regulations 
misplace the burden of proof on appellants in justifying stays.
    We have not amended the section 4160.3 in the final rule in 
response to these comments. Consultation, cooperation, and coordination 
with affected permittees and lessees are already required before active 
use can be decreased. See 43 CFR 4110.3-3. Further, any reduction in 
active use must be issued as a proposed decision, subject to a possible 
protest before it is finalized, unless the authorized officer documents 
the emergency-type situations listed in section 4110.3-3(b)(1). A 
decision may also be appealed after it is finalized, and a stay of the 
decision may be sought. Thus, the current requirements provide ample 
opportunity for affected permittees and lessees to participate in the 
decisionmaking process. Adding a pre-decisional hearing based on the 
OHA stay standards would unnecessarily limit BLM's ability to respond 
in a timely manner to changing range conditions.
    A number of comments addressed proposed section 4160.3. That 
section provided that, notwithstanding section 4.21(a), BLM may provide 
that a final decision shall be effective upon issuance or on a date 
established in the decision when BLM has made a determination under 
sections 4110.3-3(b) or 4150.2(d). (The latter two provisions authorize 
final decisions effective upon issuance where reductions in permitted 
use or temporary closures are necessary.)
    Comments expressed the opinion that BLM decisions, as a general 
matter, should be suspended pending resolution of an appeal. Comments 
acknowledged that special circumstances could apply, such as the 
likelihood of irreparable resource damage, to render a decision 
effective during this time.
    The comments, if adopted, would, in effect, revive the provisions 
of section 4.21(a) as they existed before its amendment on January 19, 
1993, at 58 FR 4939. Prior section 4.21(a) provided that ``except as 
otherwise provided by law or other pertinent regulation, a decision 
will not be effective during the time in which a person adversely 
affected may file a notice of appeal, and the timely filing of a notice 
of appeal will suspend the effect of the decision appealed from pending 
the decision on appeal.'' (A grazing regulation similar to prior 
section 4.21(a) was changed in 1995.) This prior section was criticized 
because it allowed the filing of an appeal to halt agency action 
without regard to the merits of the appeal.
    Current section 4.21 sets forth a general rule that suspends an 
agency decision for the 30-day period during which appellant may file 
an appeal and request for stay. An appellant seeking a stay must 
demonstrate, among other factors, the likelihood of success on the 
merits of the appeal. We believe this to be a superior rule. It allows 
agency decisions to go into effect reasonably quickly, but allows for a 
stay of such decisions upon a showing as to the likelihood of success 
on the merits and other requirements under section 4.21.
    Proposed section 4160.3 acknowledges the vitality of current 
section 4.21(a) even as it sets forth an exception to its terms. 
Comments in favor of a general rule that would suspend a decision 
during appeal have not been adopted in the final rule.
Section 4160.4 Appeals
    The proposed rule amended section 4160.4 by adding language 
clarifying the extent, if any, that grazing activities are permissible 
after OHA grants a stay of a grazing decision. We are adopting the 
proposed rule with revisions. We are also adopting regulations at 
4130.6-2(b) that address grazing use following a stay of decisions 
regarding annual or ephemeral use and temporarily available forage.
    The current regulations, at section 4160.3(d) and (e), specify a 
number of variables that determine the extent of grazing that will be 
allowed between the grant of an administrative stay and the resolution 
of an administrative appeal. For example, three of the variables in the 
current regulations are whether grazing was authorized in the preceding 
year, whether the decision is ``regarding an application for grazing 
authorization,'' and whether ``grazing use in the preceding year was 
authorized on a temporary basis under section 4110.3-1(a).'' 43 CFR 
4160.3(d). If only the first two variables are present, the applicant 
may continue grazing use at the same level as the preceding year. 
However, if all three variables are present, the regulations imply (but 
do not expressly provide) that ``grazing use shall be consistent with 
the final decision pending the Office of Hearings and Appeals final 
determination on the appeal.'' Id.
    Proposed section 4160.4 described the effects of a stay granted by 
OHA on a grazing decision under appeal, i.e., what happens when OHA 
stays implementation of a grazing decision. In three types of cases 
identified at paragraphs (b)(1), (2), and (3), the proposed rule 
provided that a rancher's 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 the stay order 
and section 4130.3(b). Proposed paragraphs (b)(1), (2), and (3) 
described those cases 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; 
and (3) renew a permit or lease with changed terms and conditions.
    The proposed rule also described four types of cases at paragraphs 
(c)(1), (2), (3), and (4) that call for BLM, upon the grant of a stay 
by OHA, to authorize grazing consistent with the final decision under 
appeal. Briefly stated, proposed paragraphs (c)(1), (2), (3), and (4) 
described those cases that (1) modify a permit or lease because of a 
decrease in available acreage; (2) affect an application for ephemeral 
or annual rangeland; (3) affect an application for forage temporarily 
available under section 4110.3-1(a); and (4) affect an application for 
a permit or lease not made in conjunction with a preference transfer.
    Comments expressed support for proposed section 4160.4(b), stating 
that, in effect, the immediately preceding authorization would not be 
terminated, but would be extended for purposes of the stay. This is 
consistent with a stay allowing the status quo to continue, comments 
stated, and allows for continuity of operations when grazing decisions 
are appealed. Other comments thought that our use of the terms 
``authorized'' and ``authorization'' in the proposed rule was confusing 
and should be clarified. We have clarified section 4160.4(b) in the 
final rule to reflect these comments. In the final rule, we state that, 
upon OHA's issuance of a stay of a decision described at paragraph 
(b)(1), BLM will continue to authorize grazing under the permit or 
lease that was in effect immediately before the decision was issued. 
Clarifying language has also been added to paragraphs (b)(2) and 
(b)(3). BLM believes it is important to actively manage the use of the

[[Page 39490]]

rangelands and not automatically halt grazing when a stay of a decision 
is issued. This approach recognizes the continuing nature of grazing 
operations that are authorized through permits and leases as 
contemplated in the APA (5 U.S.C. 558(c)).
    We invited comment (at 68 FR 68465) on how we might effectively 
incorporate the provisions of the APA at 5 U.S.C. 558(c) and the APA 
judicial review ``finality'' provision at 5 U.S.C. 704. Section 558(c) 
provides in part, ``When the licensee has made timely and sufficient 
application for a renewal or a new license in accordance with agency 
rules, a license with reference to an activity of a continuing nature 
does not expire until the application has been finally determined by 
the agency.'' The APA's exhaustion requirements are found at 5 U.S.C. 
704. As explained in our proposed rule at 68 FR 68465, an agency action 
is not considered final for purposes of judicial review 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.
    A comment from OHA suggested elimination of proposed section 
4160.4(c), stating that the rationale for authorizing grazing 
consistent with the stayed decision does not logically apply to the 
cases described at paragraphs (c)(2) and (c)(3), which address forage 
available on ephemeral or annual rangeland or ``temporarily 
available.'' Such forage is, inherently, not reliably available from 
year to year, and BLM allocates it on a short-term basis of a year or 
less. Decisions allocating this type of forage do not involve activity 
of a continuing nature under 5 U.S.C. 558(c). We agree with this 
comment, and have adopted section 4130.6-2(b) in lieu of proposed 
regulations at section 4160.4(c)(2) and (c)(3).
    This same comment stated that it was difficult to evaluate proposed 
section 4160.4(c)(4) without knowing the full range of decisions to 
which it would apply, but that it seemed odd to provide for stay 
petitions in a given category of cases and also provide that, if a stay 
is granted in such cases, grazing will be authorized regardless of the 
stay. If an administrative process is worth having, the comment stated, 
effect arguably should be given to any stays that are granted.
    Other comments expressed concerns about trying to identify the 
types of cases to which paragraphs (b) and (c) of section 4160.4 might 
apply. It is impossible to anticipate all types of appeals that might 
be encountered because grazing decisions do not fit neatly into one of 
the listed categories, these comments stated.
    As a result of the concerns expressed in these comments, we have 
entirely removed proposed section 4160.4(c) from the final rule and 
limited paragraph (b) to apply to a very circumscribed set of 
circumstances. With the intention of simplifying these provisions, and 
improving administrative efficiency, we are revising the regulations 
proposed at section 4160.4(b) to address the following kinds of BLM 
grazing decisions:
     Those that cancel or suspend a permit or lease, those that 
renew a permit or lease, and those that modify terms and conditions of 
a permit or lease during its current term;
     Those that issue or deny a permit or lease to a preference 
transferee; and
     Those that offer a preference transferee a permit or lease 
with terms and conditions that differ from those in the previous permit 
or lease.
    If a BLM decision renews, cancels, or suspends a permit or lease, 
or makes changes to terms and conditions of a permit or lease, and all 
or some of these changes are stayed by OHA pending appeal, then, under 
paragraph (b)(1), the affected permittee or lessee may graze in 
accordance with the comparable provisions of the immediately preceding 
permit or lease that were changed or deleted by the BLM decision under 
appeal, subject to any applicable provisions of the stay order.
    Under paragraphs (b)(2) and (b)(3), stays of decisions relating to 
preference transfers are treated in an analogous manner. If the stay is 
of a decision issuing or denying a permit or lease to a preference 
transferee, BLM will issue the preference applicant a permit or lease 
with the same terms and conditions as the most recent permit or lease 
of that allotment or part thereof, under paragraph (b)(2). If the stay 
is of a decision issuing the preference transferee a permit or lease, 
but with changed terms and conditions, BLM will offer the permit or 
lease with those stayed terms and conditions stated as they appeared in 
the most recent grazing authorization pertinent to that allotment, 
under paragraph (b)(3).
    So, although the grazing decision appealed is stayed, grazing can 
continue at the previous levels of use, as provided by the APA. This 
ensures that the decision appealed is rendered inoperative for 
exhaustion purposes under 5 U.S.C. 704 and the status quo prior to 
issuance of the decision appealed remains in effect. In the instance of 
an appeal and stay preventing implementation of a new grazing 
authorization, the fact that a permittee may still be authorized to 
graze at some level is not a function of the stayed decision being 
implemented, but is consistent with the APA's concept that existing 
authorizations remain in effect until an agency makes a final decision 
on a new authorization. It is worth noting that the APA provides at 5 
U.S.C. 558(c) that existing authorizations remain in effect until an 
agency makes a final decision on a new authorization. BLM is making 
these changes to balance the exhaustion of administrative remedies 
under the APA and our responsibilities under FLPMA and TGA to--
     Manage lands for multiple use and sustained yield,
     Regulate the occupancy and use of the rangelands,
     Safeguard grazing privileges,
     Preserve the public rangelands from destruction or 
unnecessary injury, and
     Provide for the orderly use, improvement, and development 
of the range.
    There is no need for a provision equivalent to proposed section 
4160.4(c)(1) in the final rule. That paragraph provided that, 
notwithstanding a stay order by OHA, we would authorize grazing 
consistent with our decision that modifies a permit or lease because of 
a decrease in acreage available for grazing. On internal review, we 
found the proposed provision unnecessary in light of the provision in 
section 4110.4-2(b), which gives grazers a 2-year lag time to reduce 
grazing in decreased acreage situations.
    In our proposed rule at 68 FR 68455, we noted that we were not 
addressing whether BLM would be assigned the burden of proof in 
appeals. A number of comments thought that this topic should have been 
addressed, and moreover that BLM should bear the burden of proof to 
support its decisions. Several cited the APA in support. Section 7 of 
the APA, 5 U.S.C. 556(d), provides that ``[e]xcept as otherwise 
provided by statute, the proponent of a rule or order has the burden of 
proof.''
    We believe the comments lack merit for the reasons stated in our 
proposed rule. Each case must be analyzed on its own terms to determine 
the identity of the proponent of a rule or order. A one-size-fits-all 
rule would be difficult to craft. Case law of IBLA has answered this 
question in one context: Where a rancher is claimed to have allowed 
cattle to graze in trespass, BLM has the burden of proof. BLM v. 
Ericsson, 88 IBLA 248, 255, 261 (1985). However, as we pointed out in 
the proposed rule (68 FR 68456), if BLM denies a permit or lease to a 
new grazing applicant, that

[[Page 39491]]

applicant would have the burden of showing where BLM erred in its 
decision. See West Cow Creek Permittees v. BLM, 142 IBLA 224, 236 
(1998).
    One comment said that we should not have cited in our proposed rule 
a workers compensation board case when discussing who bears the burden 
of proof in grazing appeals.
    We cited Director, Office of Workers' Compensation Programs v. 
Greenwich Collieries, 512 U.S. 267 (1994), in our proposed rule because 
it is a fairly recent case of the U.S. Supreme Court that examines 
section 7 of the APA in considerable detail. Section 7 is key to any 
decision assigning the burden of proof in a formal APA hearing.
    A number of comments suggested that BLM consider imposing bonds on 
appellants who are not directly affected by a BLM decision in order to 
help pay for adverse economic impacts to permittees during the 
adjudication of an appeal. We have not adopted the comment.
    In order for an appeal to be filed, the person or entity filing an 
appeal must be adversely affected by a decision of BLM. 43 CFR 4160.4. 
It is thus unclear who would have to obtain the bond suggested by 
comments. A bond is ordinarily required by BLM to protect the interests 
of the United States. In such a case, the holder of a permit would have 
to obtain a bond in order to secure the obligations imposed by the 
permit and applicable laws and regulations. See, e.g., 43 CFR 
2805.12(g) (bonding for rights-of-way.)
    One comment stated that only those individuals who are directly 
affected by a decision and can meet the standing requirements of 43 CFR 
part 4 should be able to appeal terms and conditions contained in a BLM 
grazing decision.
    Regulations at 43 CFR 4.470(a) provide that any applicant, 
permittee, lessee, or any other person whose interest is adversely 
affected by a final decision may appeal to an administrative law judge. 
Thus, the requirement that an appellant be directly affected appears to 
be set forth in existing regulations. This requirement is also set 
forth in the standing regulations of IBLA, which require that an 
appellant be a party to the case and adversely affected by the decision 
on appeal. A party is adversely affected when that party has a legally 
cognizable interest and the decision on appeal has caused, or is 
substantially likely to cause, injury to that interest (43 CFR 
4.410(d)).
    One comment stated that BLM regulations should provide for 
independent science panels to examine and resolve grazing-related 
disputes.
    We have not adopted this comment in the final rule. We believe that 
the formal APA hearing provided by the TGA, with its opportunity for 
presentation of evidence, cross-examination of witnesses, and decision 
by an impartial tribunal, provides an opportunity for the evidence, 
including scientific evidence, to be impartially examined.
    It should be noted that there are mechanisms in place for providing 
science advice and input before the issuance of a proposed and final 
grazing decision. Existing regulations at 43 CFR 1784.6-1 and 1784.6-2 
provide for the formation of a RAC, whose function is to ``advise * * * 
the Bureau of Land Management official to whom it reports regarding the 
preparation, amendment and implementation of land use plans for public 
lands and resources within its area.'' RACs, in turn, may provide for 
the formation of ``Rangeland Resource Teams,'' whose function is 
``providing local level input to the resource advisory council'' 
regarding issues pertaining to the administration of grazing on public 
land within the area for which the rangeland resource team is formed. 
43 CFR 1784.6-2(a)(1)(iv). While a rangeland resource team is not an 
independent science panel, one of its functions is to examine and 
provide the RACs advice regarding grazing-related disputes. The 
rangeland resource team, in turn, may request that BLM form a technical 
review team from Federal employees and paid consultants whose function 
is to ``gather and analyze data and develop recommendations [for 
consideration by the rangeland resource team] to aid the decisionmaking 
process * * *.'' Id. Ultimately, if BLM's decision is disputed despite 
the efforts and advice of these groups, it may be protested and 
appealed under subpart 4160 and part 4.
    One comment said that BLM should add to its regulation a 
requirement that all parties in a dispute must first litigate under the 
OHA administrative process to allow field solicitors to develop and 
resolve cases before they are filed in Federal Court.
    The comment is in effect asking for a regulation requiring 
exhaustion of administrative remedies. The APA addresses exhaustion at 
5 U.S.C. 704, and OHA regulations cross-reference this provision. OHA's 
exhaustion requirement appears at 43 CFR 4.21(c) and 4.479(e). Those 
regulations state that no decision which at the time of its rendition 
is subject to appeal to OHA shall be considered final so as to be 
agency action subject to judicial review under 5 U.S.C. 704, unless a 
petition for stay of the decision has been filed in a timely manner and 
the decision being appealed has been made effective pending the appeal. 
For further discussion of administrative exhaustion and judicial 
review, see the proposed rule at 68 FR 68465.

Subpart 4170 Penalties

Section 4170.1-2 Failure To Use
    The proposed rule removed the term ``permitted use'' from this 
section and replaced it with the term ``active use'' to be consistent 
with the definitions in section 4100.0-5.
    One comment addressed this section, stating that BLM should not 
cancel a permit or lease for failure to make substantial use as 
authorized or for failure to maintain or use water base property for 2 
consecutive grazing fee years. The comment averred that this provision 
could be construed to mean that if a well on private property is not 
used for 2 years then BLM can cancel all or part of the lease. It went 
on to say that BLM through its regulations is placing an unfair burden 
on the lessee in his ability to obtain financing from a local lender, 
that BLM's threat to cancel or suspend active use creates a major 
obstacle in producing a feasible financial plan required by the lender, 
and that lenders would not be impressed with a plan that would force 
them to term out a loan over a period of time based on BLM's whim to 
create uncertainty and prevent a positive cash flow for the borrower.
    BLM disagrees. As indicated by the TGA, Congress intends grazing 
permits and leases to be used for grazing purposes as ``necessary to 
permit the proper use of lands, water or water rights owned, occupied, 
or leased by'' the permittees or lessees. Failure of a permittee or 
lessee to maintain or use water base property in the grazing operation 
would indicate that the grazing operator is not making ``proper use'' 
of the water. Under these circumstances, it would be appropriate to 
revoke the grazing privileges that had been associated with that water, 
and to award them to someone who would maintain or use some other 
nearby water in the furtherance of his livestock operations. 
Agricultural lenders are, or should be, aware that retention of a BLM 
permit or lease is contingent upon the permittee or lessee complying 
with the grazing regulations that govern the permits and leases.

[[Page 39492]]

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

Section 4180.1 Fundamentals of Rangeland Health
    In the proposed rule, we revised the introduction of section 4180.1 
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. Also, we amended the 
introduction to change the amount of time within which BLM would need 
to take action to ensure that resource conditions conform to the 
requirements of this section. In the proposed rule the deadline changed 
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 and 
meeting all relevant and applicable requirements of law and 
regulations.
    As a result of comments, we are amending section 4180.1 in the 
final rule to clarify the relationship between the fundamentals and the 
standards and guidelines. Specifically, we are replacing the first 
paragraph of the existing 4180.1 with the following: ``Standards and 
guidelines developed or revised by a Bureau of Land Management State 
Director under Sec.  4180.2(b) must be consistent with the following 
fundamentals of rangeland health.'' The fundamentals themselves remain 
as approved in 1995.
    This change recognizes the relationship of the standards and 
guidelines to the fundamentals. The fundamentals are broad national 
goals, whereas the standards are applicable at the local and regional 
level. The proposed rule would have restricted regulatory action under 
section 4180.1 to geographic areas without approved standards and 
guidelines. But these areas were already subject to the fallback 
standards and guidelines in section 4180.2.
    Comments received highlighted that fallback standards and 
guidelines are in place if state or regional standards and guidelines 
have not been developed, and so application of the fundamentals is not 
necessary in those instances. Comments also characterized the 
fundamentals as encompassing critical requirements not included in all 
standards and guidelines. A more precise way to look at the 
fundamentals and the standards and guidelines is to examine the 
differing character of these provisions. Standards of land health are 
expressions of physical levels and biological condition, or the degree 
of function required for healthy lands and sustainable uses. These 
standards define minimum resource conditions that must be achieved and 
maintained. A guideline is a practice, method, or technique determined 
to be appropriate to ensure that standards can be met or that 
significant progress can be made toward meeting the standard. 
Guidelines are tools such as grazing systems, vegetative treatments, or 
improvement projects that help managers, permittees, and lessees 
achieve standards. A guideline may be adapted or modified when 
monitoring or other information has shown that the guideline is not 
effective, or that a better means of achieving the applicable standards 
is available. (BLM Handbook H-4180-1)
    The 1994 Draft Environmental Impact Statement described the broad 
nature of the fundamentals, stating that they were intended to 
``reflect the fundamental legal mandates for the management of public 
lands under the Taylor Grazing Act, FLPMA, Endangered Species Act, 
Clean Water Act, and other relevant authorities.'' (1994 Draft EIS, 
page 1-16.) The 1994 Draft EIS also described the fundamentals as 
providing the foundation for developing the standards and guidelines. 
The fundamentals were intended to ``establish clear national 
requirements for the preparation of State or regional standards and 
guidelines.'' (1994 Draft EIS, page 1-15.) BLM complies with these 
broad requirements in relevant laws and regulations through permit and 
lease terms and conditions.
    Once the standards and guidelines were developed, they became the 
focus for assessing rangeland health, and for making determinations as 
to whether existing grazing management was a cause for not meeting 
standards and needed to be altered to achieve the locally applicable 
standards and guidelines. Since the adoption of state or regional 
standards and guidelines, BLM has relied on the standards and 
guidelines to evaluate rangeland health. BLM is not aware of instances 
where the standards and guidelines have not been relied upon. Before 
the regulatory deadline for completing state or regional standards and 
guidelines or the effective date of the fallback standards and 
guidelines (43 CFR 4180.2(f)), BLM could have invoked the requirement 
that it take ``appropriate action'' under section 4180.1 to make 
changes to grazing permits and leases. However, BLM has relied on the 
similar, so-called ``action forcing'' provision in section 4180.2 to 
change existing livestock management in order to achieve locally 
tailored state or regional standards and guidelines, or the fallback 
standards and guidelines, once state or regional standards and 
guidelines were implemented, or the fallbacks became effective as 
provided in the regulations. This is consistent with how BLM described 
the standards and guidelines when they were first proposed in 1994--
i.e., as functioning to ``focus BLM's management direction, promote 
biological diversity, and improve agency efficiency in meeting 
management objectives.'' (1994 Draft EIS, page 4-39.)
    Standards describe the biological and physical conditions that can 
be assessed to determine rangeland health, and guidelines are designed 
to aid BLM in determining appropriate grazing management. The 
fundamentals, in contrast, are designed as broad, overarching goals, 
and reflect such relevant laws as the Clean Water Act, TGA, FLPMA, and 
the Endangered Species Act. Compliance with these laws already occurs 
through appropriate terms and conditions.
    Although the 1995 rule established requirements for ``appropriate 
action'' when either the fundamentals or established standards and 
guidelines were not being met because of existing grazing, the 
redundancy of requiring ``appropriate action'' in both circumstances is 
unnecessary and inefficient, and impedes implementation. The current 
regulations are inefficient and imprecise and, as a result, difficult 
to administer. The broad description of condition and general 
ecological processes set forth in the fundamentals make it very 
difficult to link these broad characteristics to a determination that 
livestock grazing is the cause of these watershed or ecological process 
conditions. As discussed previously, standards set forth a descriptive 
condition of expected rangeland health, and guidelines describe 
methods, practices, or techniques to meet standards. Fundamentals, on 
the other hand, are broad goals that are less susceptible to clear 
linkage to just one use.
    Standards and guidelines have been developed in conformance with 
the fundamentals and adopted for all states and regions except southern 
California. These standards and guidelines provide the basis for the 
application of the broadly stated fundamentals to the management of 
public lands. In southern California, the fallback standards and 
guidelines provide for the application of the fundamentals to those 
public lands. Because the standards and guidelines are meant to provide 
specific measures for achieving healthy rangelands within the framework 
of the broad fundamentals, a duplicate

[[Page 39493]]

administrative mechanism to require ``appropriate action'' under the 
fundamentals is unnecessary.
    The final rulemaking recognizes the relationship of the standards 
and guidelines to the fundamentals. We do not anticipate an adverse 
environmental impact from the fundamentals provision, as revised, but 
rather anticipate overall long-term improvements in rangeland 
conditions. This is based on the continued application of the standards 
and guidelines, continued relevance of the fundamentals when standards 
and guidelines are developed or revised, continued application of 
relevant laws that were the basis for the fundamentals, and continued 
use of the fundamentals to identify general characteristics of a 
functional rangeland ecosystem in broad land use plans and allotment 
management plans.
    BLM will ensure that any standards and guidelines developed or 
revised are consistent with the fundamentals, which remain unchanged 
from 1995. By requiring newly developed or revised standards and 
guidelines to be consistent with the fundamentals, the final rule will 
provide clear guidance for any future effort to develop or revise the 
standards and guidelines. BLM will continue to utilize the standards 
and guidelines to assure that livestock grazing is conducted 
consistently and in accordance with principles already being used in 
rangeland ecosystems.
    In the final rule, in response to public comments as discussed 
below, we have also amended paragraph (d) to remove the reference to 
``at-risk'' species.
    Some comments expressed concern that BLM was replacing the 
fundamentals of rangeland health in section 4180.1 with the rangeland 
health standards in section 4180.2. The reasons given for concern were: 
(1) BLM might no longer take action if we determined that conditions 
expressed as fundamentals of rangeland health did not exist; (2) BLM 
would not be able to evaluate the effectiveness of state or regional 
guidelines; and (3) land health standards would take precedence over 
the fundamentals.
    Land health standards do not replace or take precedence over the 
fundamentals of rangeland health, but further define the conditions 
that must exist in order to achieve fundamentals of rangeland health at 
the local or regional level. The effectiveness of state or regional 
guidelines will be determined by evaluating whether or not standards 
are met when the guidelines are followed. The purposes of the change in 
section 4180.1 are--
     To make it clear that the fundamentals are the overarching 
principles that managers aspire to meet when devising standards and 
operating under guidelines in accordance with section 4180.2, and
     To remove an operational redundancy.
    This redundancy in the current regulations requires BLM to do two 
things:
    (1) To modify grazing practices or take other possible appropriate 
action when e determine that livestock grazing is a significant 
contributing factor to failing to meet one or more standards or conform 
with guidelines (the final rule retains this requirement), and
    (2) To modify grazing practices or take other possible appropriate 
action when we determine that it is necessary to do so to ensure that 
the conditions described by the fundamentals exist (the final rule 
removes this requirement).
    A comment suggested removing or revising section 4180.1 because, as 
framed in the current rules, the fundamentals do not conform to the 
concepts and parameters presented in the National Research Council's 
1994 publication ``Rangeland Health, New Methods to Classify, 
Inventory, and Monitor Rangelands,'' and ``New Concepts for Assessment 
of Rangeland Condition'' (Journal of Range Management, SRM 48(3), May 
1995). It also suggested that the Criteria and Indicators developed by 
the Sustainable Rangeland Roundtable be incorporated into subpart 4180.
    BLM considered the National Research Council publication in 1995 in 
developing national requirements that describe the necessary physical 
components of healthy rangelands. (Rangeland Reform '94 Final 
Environmental Impact Statement, p13). These national requirements were 
retitled the ``fundamentals of rangeland health'' in the 1995 final 
rule (60 FR 9954). The Journal of Range Management article ``New 
Concepts for Assessment of Rangeland Condition'' provided a number of 
recommendations for assessing and reporting range condition based on 
ecological sites and ``Site Conservation Ratings.'' The fundamentals of 
rangeland health are not intended to describe a condition rating 
system; rather, they describe a threshold condition which either exists 
or does not exist. BLM has been a participant in the ``Sustainable 
Rangeland Roundtable,'' and the work of that group is ongoing. We have 
determined that further adjustments of the regulations to be consistent 
with the ``Sustainable Rangeland Roundtable'' products would be 
premature at this time.
    Other comments suggested moving the fundamentals of rangeland 
health from the grazing regulations in subpart 4180 to the planning 
regulations in subpart 1610, stating that the fundamentals are clearly 
planning rather than management concepts. According to the comments, 
the move would accomplish the 3 criteria listed in the Federal Register 
(68 FR 68457): (1) Promoting cooperation with affected permittees, 
especially land owners; (2) promoting practical mechanisms for 
protecting rangeland health, and (3) improving administrative 
efficiencies.
    As explained in the proposed rule (68 FR at 68457), we did not 
consider it appropriate to expand the scope of this rulemaking to 
address planning regulations at subpart 1610.
    A number of comments addressed the references to ``at-risk and 
special status species'' and the ESA in subpart 4180. All suggested 
removing the term ``at risk species'' found in sections 4180.1(d), 
4180.2(d)(4), 4180.2(e)(9), and 4180.2(f)(2)(viii) because it is not a 
term used or authorized in the ESA. Most expressed concern that 
including the term would lead to single species management when BLM 
should be managing for plant and animal communities and ecosystems. 
Some also suggested removing the term ``special status species'' for 
the same reasons.
    FLPMA directs BLM to manage for multiple uses, including native 
vegetation communities, and food and habitat for wildlife as well as 
livestock. Even though it is preferable to manage native plant and 
animal communities or ecosystems, the ESA requires threatened and 
endangered species to be managed by BLM, species by species. ``Special 
status species'' is defined in BLM Manual 6840, Special Status Species 
Management, and includes listed, proposed and candidate species, state-
listed species, and sensitive species. Considering ``other special 
status species'' in standards and guidelines (4180) will identify 
potential management opportunities to avoid future listing of state 
listed and sensitive species. Once a species is listed under the ESA, 
multiple use management becomes increasingly complex and uses of the 
public lands may become more restricted. Thus, BLM needs optimum 
habitat conditions for all special status species. However, because the 
term ``at-risk species'' is not defined in ESA or in BLM manuals or 
handbooks, we have removed it from the final rule. The rule retains the 
term ``special status species,'' because it is consistent with our

[[Page 39494]]

objectives in subpart 4180 and is clearly defined in BLM Manual 6840.
Section 4180.2 Standards and Guidelines for Grazing Administration
    In the proposed rule we would have revised paragraph (c) of section 
4180.2 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. We 
have amended this proposal in the final rule. Under the final rule, if 
a standards assessment indicates to the authorized officer that the 
rangeland is failing to achieve standards or that management practices 
do not conform to the guidelines, then he will use existing or new 
monitoring data to identify the significant factors that contribute to 
the failure or lack of conformance.
    We also amended paragraph (c) in the proposed rule 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 and/or conform with 
guidelines, BLM will, in compliance with applicable law and with 
consultation requirements, analyze appropriate action and then issue a 
final decision regarding the appropriate action it intends to implement 
to remedy the failure to meet the standards and/or execute a documented 
agreement regarding the appropriate action with the permittee(s) or 
lessee(s) and the interested public. This change recognizes the 
decision process specified at subpart 4160 that BLM employs to 
implement management actions. This requirement to issue a ``final'' 
decision within 24 months recognizes that in most cases, in accordance 
with subpart 4160, BLM final decisions are preceded by proposed 
decisions that may be protested within 15 days of receipt, and that BLM 
then must address any protest in the final decision. The 24-month 
deadline within which BLM must issue a final decision (in the absence 
of, or in addition to, the execution of an agreement) is intended to 
accommodate both the 15-day protest period afforded to recipients of 
proposed decisions and the time needed for BLM then to address the 
protest and issue its final decision.
    We are adopting the proposal in the final rule. BLM may extend the 
24-month deadline when the legal responsibilities of another agency 
prevent completion of all legal obligations within the 24 months. We 
made this change to allow for the infrequent occasions when additional 
time is needed to fulfill required legal and consultation obligations 
that are outside BLM's purview and control. Upon executing the 
agreement, or in the absence of a stay of the final decision, BLM must 
implement the appropriate action as soon as practicable but not later 
than the start of the next grazing year. We made this change in 
recognition that legal proceedings can at times delay or halt 
implementation of actions deemed appropriate by BLM.
    We also removed 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.
    As in section 4180.1, in this section also we have removed 
references to ``at-risk'' species in the final rule.
    Finally, we made changes in paragraph (c) that better reflect field 
practice. Both Sec.  4180.2(c)(1)(i) and (c)(2), as proposed, 
erroneously implied that an agreement or a grazing decision are 
mutually exclusive. However, we often reach agreement and then issue a 
final decision to implement the agreement to ensure administrative 
finality. On the other hand, some field managers are comfortable with 
just an agreement and do not necessarily want to follow up with a 
decision. Such agreements, when they occur, must be signed by the 
interested public, in addition to the permittee/lessee. Also, at times, 
state agencies are signatory parties to agreements as well.
    A number of comments supported the proposed rule provision that BLM 
will use a combination of monitoring and assessment information to 
determine whether existing grazing management practices or levels of 
grazing use on public land are significant factors in failing to 
achieve standards. The comments stated that the monitoring and 
assessment requirement would lead to BLM having more defensible data to 
support decisions, supply data from more than one point in time, ensure 
that partnerships are producing desired results, foster stable range 
condition and upward trend while maintaining custom and culture of the 
West, and enhance efforts to protect the health of the land. Supportive 
comments also referred to increasing credibility of determinations by 
using quantitative data to support qualitative observations and 
reducing the subjectivity involved in making a determination that leads 
to changing terms and conditions in grazing permits.
    The use of existing or new monitoring data to identify what factors 
significantly contribute to not meeting standards or to conform to 
guidelines and to support determinations regarding such failure will 
focus and better inform the subsequent actions that BLM takes to 
improve rangeland health as compared with actions taken based solely on 
assessments. When monitoring data is used to identify livestock grazing 
as a significant contributing factor, the range management actions 
taken will be more effective and less vulnerable to appeal. The rule 
thus would result in expediting actions to improve rangeland health.
    Some comments contained suggestions for implementing the rule. Many 
encouraged BLM to provide sufficient funding to collect the monitoring 
data needed under the rule, and one comment requested a funding 
strategy to show how BLM will provide the resources to complete the 
monitoring necessary to implement this rule. One comment suggested that 
permittees fund any monitoring above that currently required by BLM to 
make decisions. Some comments suggested priority-setting strategies so 
that high priority areas receive first consideration for monitoring.
    Priority setting is also a policy issue addressed during the annual 
budget development along with determinations on appropriate funding 
levels. Funding sources and amounts for monitoring vary from year to 
year, and BLM plans to work with permittees and others to determine how 
data collection will be accomplished on high priority areas within the 
allocated budget amounts. The budgetary effects of the monitoring 
requirement in proposed section 4180.2(c) will be mitigated by the 
amendment in the final rule that limits the need to use existing or new 
monitoring data to those cases where a standards assessment indicates 
that the rangeland is failing to achieve standards or that management 
practices do not conform to guidelines.
    Several comments expressed a desire for BLM to update policy and 
handbooks to clarify methods and levels of monitoring needed so that 
there would be consistency in data collection and interpretation. One 
comment requested incorporation of ``the Catlin et al. 2003 report and 
statistical tests (Grand Staircase/Escalante National Monument)'' into 
the EIS because the report and statistical tests provide tools to 
assist BLM staff in making rangeland health determinations. Comments 
offered monitoring indicators for all the land health standards, and 
suggested that monitoring should be focused on goals and objectives 
agreed upon using consultation, cooperation, and

[[Page 39495]]

coordination. It was recommended that monitoring should be conducted by 
qualified professional agency personnel working with permittees using 
approved agency methods to collect data relevant to the decisions being 
made.
    BLM agrees that clear guidance on monitoring methodologies is 
desirable. Many of the suggestions are more appropriately addressed in 
the development of policy, handbooks, and technical references, rather 
than in regulations. This applies particularly to techniques and 
methods for collecting and interpreting data, which may be subject to 
modification as new findings are announced in the scientific 
literature. The suggestion to update policy and handbooks is 
appropriate, and BLM plans to do so. We anticipate that we will 
consider the information in the Catlin report as we develop and update 
guidance. In the meantime, BLM follows monitoring guidance at Manual 
Section 1734, and Manual Handbooks 1734-1 and 4180-1. BLM also monitors 
the status of objectives from land use plans and activity plans, and 
considers this monitoring information in evaluating land health 
standards. BLM receives and considers other data and information 
provided by affected permittees and others, to the extent practical, 
during the development of evaluation reports. These reports include 
evaluations of land health standards, evaluations of land use plan and 
activity plan objectives, and biological evaluations relating to 
consultation under Section 7 of the Endangered Species Act.
    One comment suggested that BLM should add the following wording to 
section 4180.2(c)(2): ``If the appropriate action requires a change in 
active use, such change will be implemented in accordance with section 
4110.3-3'' to clarify that timing conflicts are not intended between 
the implementation requirements of this section and those of section 
4110.3-3 on implementing changes in active use under the changes 
recommended herein.
    The regulations state in section 4180.2(c)(3), ``Appropriate action 
means implementing actions pursuant to subparts 4110, 4120, 4130, and 
4160 of this part * * *''. How changes in preference and active use 
will occur is specified in section 4110.3-3, so we believe the 
suggested word change to section 4180.2 is unnecessary.
    Some comments stated that the regulations in section 4180.2 should 
provide for individual allotment management plans with specific goals 
and objectives, and including monitoring plans, to be developed through 
consultation, cooperation, and coordination.
    Section 4120.2, on allotment management plans, directs that such 
plans provide for monitoring to evaluate the effectiveness of 
management actions in achieving the resource objectives of the plan. 
These plans are to be developed in consultation, cooperation, and 
coordination with permittees, landowners, other agencies, and the 
interested public. Therefore, we believe the suggestion has already 
been addressed in the regulations.
    A variety of comments opposed requiring both monitoring and 
assessments to make determinations that rangeland health standards are 
not being met because of current livestock grazing management. Most 
were concerned that BLM did not have the budgetary resources to provide 
adequate data collection and analysis and that the requirement would 
impose an unrealistic workload on the BLM staff, putting resources at 
risk by delaying appropriate actions. Setting priorities and assuring 
that low priority areas were not monitored at the expense of high 
priority areas was a concern.
    As previously stated, BLM prioritizes expenditure of resources for 
monitoring as well as for other activities in the range program. For 
example, BLM assigns high monitoring priority to areas it believes to 
be at risk, are in degraded condition, or in downward trend and in 
danger of losing capability. BLM believes that it is more effective to 
expend resources to collect data in these high priority areas, and to 
use that data to ensure sustainable decisions from a resource and 
implementation perspective. Under the rule, monitoring would not be 
necessary on every allotment. The final rule requires that existing or 
new monitoring data be used to identify significant contributing 
factors and support determinations regarding the same only on those 
allotments that standards assessment indicates are failing to meet 
standards or conform to guidelines. This will ensure that subsequent 
corrective action is focused on remedying the factors that monitoring 
has verified are contributing to not achieving standards or not 
conforming to applicable guidelines.
    BLM currently administers grazing on about 21,535 allotments 
(2005). We have established monitoring sites in nearly 11,500 
allotments, and currently collect monitoring data to some degree on 
about 3,500 of those allotments each year. BLM uses these monitoring 
sites primarily to evaluate achievement of land use plan objectives, to 
ascertain changes in condition, and to determine trend. Information is 
collected at some of the monitoring sites more often than at others, 
depending on priority and purpose.
    As of the end of Fiscal Year 2002, about 16 percent of 7,437 
allotments evaluated by that time (1,213 allotments) were determined 
not to be meeting land health standards because of existing livestock 
grazing management. We focused our first round of assessments on areas 
with potential problems. Field offices were directed beginning in 1998 
to prioritize allotments, watersheds, or other areas and ``to give 
highest priority to areas believed to be at risk--in degraded condition 
or downward trend and in danger of losing potential.'' (Washington 
Office Instruction Memorandum 98-91) Additional guidance for assessing 
high priority areas was provided in Manual Handbook 4180-1 and annual 
work plan directives since fiscal year 2001. This experience should be 
a good indicator of the proportion of allotments that are likely to 
fail to meet standards as a result of livestock grazing practices in 
the future. Thus, extrapolating from our experience leading up to the 
end of FY 2002, we expect to need monitoring data to support less than 
16 percent of our determinations that we make after August 11, 2006. 
Under projected budgets, we fully expect to have appropriate monitoring 
data to support our determinations, regardless of whether they lead to 
a finding of failure to meet standards due to livestock grazing.
    Other comments expressed opinions that monitoring was unnecessary 
and existing direction was adequate for making determinations and 
necessary adjustments, including flexibility to use existing data, that 
using follow-up monitoring to determine if the change was needed is an 
appropriate strategy, and that allowing immediate action when 
destructive grazing practices and abuse are obvious is essential to 
good management. One comment stated that requiring monitoring would 
lead to increased litigation.
    Once a standards assessment indicates that the rangeland is failing 
to achieve standards or that management practices do not conform to 
guidelines, the level of new monitoring, if any, needed to determine 
what are the significant contributing factors in failing to achieve 
standards or conform to guidelines will vary depending on such 
variables as how obvious the causes are for not meeting standards, the 
quantity and quality of existing relevant monitoring data, presence of 
threatened or endangered species, conflicts between uses, and other 
criteria. While BLM cannot control the number of

[[Page 39496]]

appeals or the amount of litigation after issuing a grazing decision, 
we believe having a defensible basis for the decision will reduce the 
number of instances where appropriate action is delayed because of 
protracted administrative and judicial processes.
    One comment, supporting the adoption of a comprehensive monitoring 
strategy to chronicle the effect of grazing on rangeland health and 
Federal trust species found on allotments, stated that rangeland health 
determinations are the first step in identifying a need, if any, for 
changes in livestock management to improve rangeland health conditions 
and to ensure the sustainability of fish and wildlife resources. Until 
such a determination is made, according to the comment, only limited 
management actions can be initiated, and under current management, 
again according to the comment, there are no specific requirements on 
how to make these determinations.
    While the comment generally supports the provisions on monitoring 
in the proposed rule, it does not entirely accurately depict the 
situation regarding rangeland health determinations. There is no 
specific regulatory requirement that we must wait for a determination 
before we can take an action. However, although the regulations do not 
absolutely require a determination before BLM can take action, as a 
matter of practicality and workload prioritization, we find the 
determination process a useful tool. The comment also errs somewhat in 
stating that there are no specific requirements on how these 
determinations are made. It is true that there are no specific 
requirements in the regulations. However, guidance for making 
determinations appears in Manual Handbook H-4180-1.
    Some comments stated that experience shows that monitoring of 
rangeland standards is not being completed in a timely, effective 
manner under current requirements due to BLM funding and staffing 
limitations, and recommended BLM remove this requirement from the rule. 
The comments suggested an alternative evaluation process, where an 
interagency (and interdisciplinary) team evaluates range conditions and 
determines management strategies in cases where adequate monitoring 
data are not available. A few comments supported a comprehensive 
monitoring strategy to chronicle the influence of grazing on rangeland 
health and federally-listed species.
    BLM believes that monitoring is an important component of 
evaluating land health and making rangeland health standard 
determinations. The final rule will enable the authorized officer to 
have a solid factual basis for making decisions to adjust grazing use, 
and could reduce the number of instances where implementation is 
delayed because of protracted administrative appeal and judicial 
processes. The proposed rule would help focus BLM budgetary and 
staffing resources on monitoring where data are needed to determine the 
reasons for not meeting the land health standard(s). Under BLM 
procedures, interdisciplinary teams use existing monitoring data in the 
evaluation process to determine status of the current conditions 
relative to the land health standards. Where adequate monitoring 
information is not already available, BLM will focus its monitoring 
resources on gathering the needed information. The alternative 
evaluation process suggested in the comments closely mirrors the 
current process where existing monitoring data are not available. We 
believe that decisions will be implemented more efficiently on the 
ground when they are based on monitoring data, and may be less likely 
to be subjected to administrative or judicial challenge.
    Another comment maintained that range monitoring as practiced by 
BLM consistently under-reports biological impacts of cattle grazing on 
desert environments, particularly riparian areas, and that some 
monitoring methods do not report loss of habitat function for wildlife, 
increased susceptibility of soils to erosion, invasion of exotic 
plants, or destruction of cryptobiotic crusts.
    BLM does not agree with this comment. Monitoring is designed to 
document conditions of a particular attribute or set of attributes at 
the time data is collected. BLM uses a number of techniques and methods 
to measure wildlife habitat conditions (including cover, structure, and 
vegetation composition), ground cover, and presence of exotic plants. 
We rely on many BLM Technical References and Technical Notes, including 
TR 1734-4 ``Sampling Vegetation Attributes,'' 1996; TN-349 
``Terrestrial Wildlife Inventories: Some Methods and Concepts,'' 1981; 
``Inventory & Monitoring of Wildlife Habitat,'' 1986, by Cooperider, 
Boyd, and Hansan; TN 395 ``Evaluation of Bighorn Habitat: A Landscape 
Approach,'' 1996; TR 1730-1 ``Measuring and Monitoring Plant 
Population,'' 1998; and TN 417 ``Identifying and Linking Multiple Scale 
Vegetation Components for Conserving Wildlife Species that Depend on 
Big Sagebrush Habitat: A case Example--Southeast Oregon,'' 2004. This 
monitoring provides BLM with information about the condition and trend 
in condition of resources. When monitoring the effects of livestock 
use, BLM commonly measures utilization, cover, and frequency of use, 
and relies on actual use reports and photographs. BLM then correlates 
data to various management activities to determine effectiveness of 
management in achieving objectives.
    One comment stated that requiring monitoring before a rangeland 
health determination is made has implications for measures needed to 
conserve special status species in order to preclude listing. It stated 
that where proactive range-wide measures are needed, such as in the 
case of the sage-grouse, a requirement for monitoring before a remedial 
action can be initiated may amount to an inadequate regulatory 
mechanism. The comment recommended assessment and disclosure of the 
impacts of the monitoring requirement on BLM's ability to implement 
effective and timely conservation strategies to avoid the need to list 
special status species.
    Requiring monitoring data to make a determination of the cause for 
not achieving a land health standard does not preclude BLM from 
modifying grazing use to meet other resource management objectives. 
Section 4130.3-3 provides that BLM may modify terms and conditions of a 
permit or lease either with or without a determination under subpart 
4180. Subpart 4180 is not the sole regulatory mechanism for 
implementing measures that are needed to conserve special status 
species. Therefore, this regulatory change does not impair BLM's 
ability to take timely action to implement effective conservation 
strategies that preclude the need to list special status species.
    Several comments recommended that the rule should allow BLM to use 
monitoring or assessment data or both for making determinations, as 
provided in Alternative 3 in the EIS. The comment stated that this 
flexibility would enhance efforts to protect rangeland health. A 
related comment stated that BLM should not unnecessarily place the 
burden of proof on itself to justify management changes by requiring 
years of monitoring data before management changes can be required.
    We have not adopted this suggestion in the final rule. BLM believes 
that if determinations regarding the cause for not meeting one or more 
standards are supported by existing or new monitoring data, they are 
less likely to be challenged administratively or judicially. We believe 
that devoting

[[Page 39497]]

attention to areas with highest priority will allow us to address range 
health issues. In fact, at the end of Fiscal Year 2002, about 16 
percent of the 7,437 allotments that had been evaluated were determined 
not to be achieving standards because of existing livestock grazing 
management. This indicates that monitoring should be focused on high 
priority areas where there is a risk of not achieving land health 
standards because of existing livestock grazing. The final rule does 
add a provision to section 4180.2(c) that limits the monitoring 
requirement to those cases where a standards assessment indicates that 
the rangeland is failing to achieve standards or that management 
practices do not conform to guidelines. In such cases, we will use 
existing or new monitoring data to identify and support a determination 
regarding the significant factors that contribute to the failure to 
achieve standards. The final rule only requires the use of monitoring 
data to determine causation in cases where assessment indicates that 
rangelands are failing to achieve the standards or conform to the 
guidelines. For the most part, BLM has been focusing its monitoring 
efforts on those allotments where there are concerns or problems. We 
believe that this requirement is reasonable and necessary to ensure 
that we have adequate data to formulate and analyze an appropriate 
action where we find 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. 
Further, as we have stated, determinations that are supported by 
monitoring will make for better, more defensible decisions, especially 
when we need to change grazing practices on allotments. BLM is adding 
the requirement to use standards assessments and existing or new 
monitoring data to support determinations of failure to achieve 
standards and conform to guidelines because of existing grazing 
management practices or levels of grazing use because both the public 
and the livestock industry are concerned about a lack of adequate data 
for making determinations. Although we often make these determinations 
based on existing monitoring data, adding this requirement provides for 
a consistent approach to making determinations.
    We do not expect this provision to have significant budgetary 
effects because, as described in section 4.3.1 of the EIS, only 16 
percent of the allotments assessed over the last 5 years have failed 
standards because of existing livestock grazing practices. While this 
requirement may increase the ongoing data collection workload in the 
grazing program, we expect to continue to monitor in those areas we 
believe to be at risk, in degraded condition, or in downward trend and 
in danger of losing capability, within our funding allocation without 
needing additional funding. Further, the change in the final rule 
limiting the monitoring requirement to cases where standards 
assessments indicate rangeland failure to achieve standards or 
management failure to conform to guidelines should reduce the workload 
and budgetary effects of the final rule. Refocusing data collection 
priorities may affect watershed assessment schedules and could delay 
the permit renewal process in areas where relevant monitoring data is 
not available. Under projected budgets we expect to have appropriate 
monitoring data to support our determinations. The amount of monitoring 
data needed is likely to vary from case to case. We will continue to 
refine, as necessary, our guidance on monitoring to clarify such issues 
as timing and levels of monitoring.
    A comment asserted that BLM does not have the monitoring data to 
show that their management practices are having any effect on 
improvement of water quality on public lands.
    One of BLM's primary resource management objectives is to meet 
state water quality standards in water bodies affected by management 
activities on public lands. Achievement of state water quality 
standards is a rangeland health standard in each BLM region or state. 
BLM determines total maximum daily loads of pollutants and develops 
best management practices (BMPs), with coordination with and approval 
by each state's environmental quality office. We conduct water quality 
monitoring to assess the effectiveness of BMPs, as well as direct water 
column sampling to determine compliance with standards in cooperation 
with the appropriate state agencies. Streams and lakes are not removed 
from the states' lists of impaired water bodies without full 
verification and direct sampling data. Monitoring to determine the 
effectiveness of each change in management is not possible, but 
priority watersheds with existing water quality problems are monitored 
sufficiently to determine whether new management practices designed to 
improve water quality are effective.
    Many comments supported the amendments of this section in the 
proposed rule to allow BLM 24 months after determining that grazing 
management practices or levels of use were significant factors in 
failing to meet standards or conform to guidelines to formulate, 
propose, and analyze appropriate action. They stated that providing 
adequate time to develop and analyze appropriate actions with adequate 
public and permittee involvement would result in better decisions 
appropriate to the need. They said that the longer time frames would 
allow a more accurate evaluation, and allowing 24 months instead of 12 
months for initiating changing in grazing practices is more practical. 
BLM agrees and has not changed any of the pertinent provisions of the 
regulations in the final rule.
    Another comment stated that the purpose of extending the time to 
take appropriate action is to allow BLM staff time to bring together 
the appropriate information and conduct necessary public involvement. 
The comment encouraged BLM to retain opportunities for public 
involvement. However, the comment stated, in this connection, that a 
timely response to changing resource conditions overrides this need.
    The comment also suggested that the proposed rule be clarified, 
stating that some of the terms were confusing and made it difficult to 
determine the effect of the extended deadline on the viability of 
species. The comment stated that the wording ``to take action'' does 
not indicate whether the deadline of 2 years requires action to be 
``initiated'' or ``completed'' by that date. The comment asked for a 
more thorough discussion in the FEIS describing the delays that may 
result with adoption of the 2-year deadline, and the potential effects 
on listed resources.
    The comment is correct that the reason for extending the time 
allowed to initiate action is to allow BLM staff time to bring together 
the appropriate information and conduct necessary public involvement. 
This provision would enable BLM to develop a thorough action plan, 
consult with the FWS or the NMFS, and to solidify the decision to work 
through the NEPA process, which involves the public. The proposed rule 
would require an authorized officer to issue a final decision or 
execute an agreement to implement appropriate action within 24 months 
of a determination made under section 4180.2(c). The requirement to 
take action within 2 years means that appropriate action would need to 
be initiated via a final decision or agreement on or before that time, 
but not necessarily completed on or before that time.
    Taking up to 24 months to develop a meaningful action and issue a 
decision less vulnerable to appeal will be more effective than issuing 
a decision and

[[Page 39498]]

waiting even longer for an appeal to IBLA to be heard and resolved.
    Under the rule, the BLM field manager has discretion whether to 
allow 24 months for BLM to address failure to meet rangeland health 
standards. There is no language in the rule that precludes a shorter 
deadline, once BLM meets its consultation, cooperation, and 
coordination requirements. Allowing 24 months to develop appropriate 
action should improve the likelihood of determining the correct remedy 
for a vegetative resource problem. Also, if immediate action is needed 
to protect soil, vegetation, or other resources, BLM may invoke section 
4110.3-3(b) and immediately close the area to grazing either totally or 
partially.
    Those who made comments opposing the change in the amount of time 
to develop an appropriate action when livestock grazing was determined 
to be a significant factor in not achieving a land health standard 
focused on 3 areas. The first was that the extra time allowed is 
inconsistent with the objective of accelerating restoration and 
improving public rangelands and that it would create a delay leading to 
additional degradation of resources or harm to fish and wildlife, and 
detrimental to long-term range health. The second was that current 
rules provided adequate time to take action, and that a ruling of the 
9th Circuit Court of Appeals upholding the current regulations should 
be continued as a management directive. The third area of focus was 
that the change would provide preferential treatment not given to other 
permitted uses.
    With respect to the first concern, BLM believes that allowing up to 
24 months (except in those cases where legally required processes that 
are the responsibility of another agency require additional time) to 
propose and analyze appropriate action needed to address the failure to 
meet a rangeland health standard will result in improvements rather 
than harm to resources, including wildlife. As stated in section 4.3.7 
of the EIS, there may be limited short term adverse impacts if BLM 
needs 24 months or more to develop an appropriate action that involves 
extensive coordination and consultation. However, we expect the extra 
time taken to develop a meaningful action to provide greater long term 
benefits to other resources and an overall improvement in rangeland 
condition. For example, just reducing the level of use in a riparian 
area, rather than developing a management system that considers timing 
of use, is not likely to improve the riparian area condition. Taking 
the additional time to develop an appropriate action may actually 
reduce the amount of time taken to implement a decision, particularly 
if the decision is not appealed. Also, taking additional time should 
improve the quality of the BLM decisions and reduce the likelihood of 
successful appeal, and hopefully the number of appeals. Implementing 
decisions can be delayed by 18 to 36 months if they are appealed. At 
the end of FY2002, about 5 percent of grazing decisions issued after 
1997 had been appealed. Labor and funds spent to address these appeals 
are diverted from developing and implementing workable plans. In many 
cases, the full 24 months may not be needed to develop appropriate 
actions. Based on determinations made through the end of Fiscal Year 
2002, the number of allotments affected by this rule appears to be 
fairly limited. Of the 7,437 allotments (out of 21,535) assessed prior 
to October 1, 2002, BLM determined that 16 percent did not meet 
standards with at least one of the significant causal factors 
identified as existing livestock grazing management or levels of use. 
Of the 10,455 allotments assessed from 1998 through 2005, existing 
livestock grazing or levels of use were determined to be a significant 
causal factor for not meeting standards on about 15%, or 1537 
allotments.
    Regarding the second area of concern, BLM has determined that the 
additional time is needed to enable us to develop and implement better 
action strategies. We assume the ruling noted in the comments is Idaho 
Watersheds Project v. Hahn, 187 F.3d 1035 (9th Cir. 1999). In the 
proceedings that led up to that appellate decision, the district court 
provided a schedule for completing evaluations of land health standards 
and NEPA documents for 68 allotments, and issued interim management 
guidelines pending completion of the NEPA documents and issuing grazing 
permits. The decision referred to interprets the current regulations, 
the effects of which are analyzed as part of the No Action Alternative 
in the EIS. The final rule gives managers and partners an opportunity 
to develop, as a result of the additional time, better alternatives 
that will result in more positive long-term environmental effects. The 
fact that the 9th Circuit upheld the current regulations does not 
preclude BLM from proposing to amend the regulations to improve our 
grazing management program. BLM's experience implementing the existing 
regulations is that the regulatory requirement to take appropriate 
action no later than the start of the next grazing season did not 
always provide sufficient time to ensure compliance with relevant laws 
and regulations, including requirements in the grazing regulations to 
undertake consultation and coordination to develop an appropriate 
action, NEPA, and, if applicable, ESA consultation.
    The proposed rule does not change BLM's discretion to implement 
decisions to adjust grazing use immediately if continued grazing use 
poses an imminent likelihood of significant soil, vegetation, or other 
resource damage, including immediate threats to listed or other 
sensitive species. The proposed rule also contains provisions that 
allow BLM and the permittee to enter into an agreement for shorter time 
frames for implementation (section 4110.3-3). The final rule provides 
sufficient time for BLM to comply with all applicable legal 
requirements, while protecting fish and wildlife resources.
    We do not agree that the changes in the regulations give 
preferential treatment to grazing interests by extending the allowable 
timeframe for developing and implementing corrective actions. Grazing 
permittees are the only users required by these regulations to change 
management in a specified period of time if that management is a 
significant factor for not achieving rangeland health standards. If 
other activities are determined to be the cause for not meeting those 
standards, these regulations do not impose deadlines on making changes 
in such activities, or even require changes in them.
    The comments provided suggestions for changing the proposed rule. 
One was to increase the time given to develop an appropriate action to 
more than 24 months, because climate, weather, or other conditions 
might require longer studies to determine rangeland health. Another was 
to provide for a variable time frame on a case by case basis, because 
different problems required varying time periods for initiating and 
scheduling improvements. A third suggestion was to identify problems 
associated with grazing practices within 3 to 6 months, and devise 
measures to correct them within 2 to 4 months after they are 
identified, including (a) planning an appropriate action with 
appropriate consultation and coordination, (b) completing NEPA and 
Section 7 ESA requirements, and (c) issuing a final decision to 
implement the action.
    We have revised the final rule to provide additional time to 
develop appropriate actions when legally required processes outside 
BLM's purview prevent completion of all legal obligations within the 24 
month time period. In most cases, 24 months is an

[[Page 39499]]

adequate period of time to develop appropriate action. Sometimes a 
corrective action is as simple as changing a grazing period or 
rotation. In other circumstances, corrective actions are more complex 
and difficult to conceive and implement, such as when multiple 
permittees in large allotments with multiple resource issues are 
involved. When the process includes numerous legal requirements, such 
as ESA Section 7 consultation, or extensive consultation and 
coordination with numerous interests, we may need additional time to 
complete the process. Developing appropriate action to implement 
remedial grazing management can vary greatly in complexity depending on 
the management circumstances of the allotment. In more complex 
circumstances, just developing the appropriate action(s) is often not 
straightforward. Time is needed for planning and budget considerations, 
such as developing and coordinating a workable proposal, engineering 
survey and design if range projects are a part of the corrective 
action, consulting with Tribes and complying with Section 106 of the 
National Historic Preservation Act (NHPA), NEPA analysis including 
consultation with multiple entities and agencies, and securing moneys 
to support these processes. In practice, when faced with more complex 
circumstances, the relatively short period allowed by the current 
regulation within which to devise and implement the appropriate 
action(s) may not allow BLM time for internal alignment of the planning 
and budget needed for timely implementation of the corrective action. 
Current resources available to BLM to assess rangeland conditions on 
160 million acres make it impractical for BLM to implement and maintain 
a program to identify problems associated with grazing within ``3-6 
months.'' In light of these operational realities, BLM cannot adopt 
recommendations to shorten this time frame. We have therefore not 
adopted these comments in the final rule.
    One comment expressed concern that the effect of allowing up to 24 
months to develop and analyze an action to make needed adjustments in 
grazing would be to protect poor stewards and uncooperative ranchers.
    The rule change is intended to provide adequate time ``to 
formulate, propose, and analyze actions in an environment of 
consultation, cooperation and coordination.'' Rather than protecting 
poor management, this rule provides opportunity to develop an 
appropriate action. BLM may still take appropriate action to modify 
livestock grazing management where changes are needed to achieve land 
health standards before the end of the 24-month period authorized in 
the regulations. We recognize that, in the case of an uncooperative 
rancher, it is unlikely that we would be able to obtain agreement 
regarding the necessary appropriate action, and if that was the case, 
the proposed change to grazing management would be implemented by a 
grazing decision under subpart 4160. BLM is responsible for initiating 
a change in management regardless of the cooperativeness of the 
permittees or lessees or their management abilities. Additionally, 
section 4110.3-3(b)(1) includes the phrase ``reasonable attempt to 
consult with'' to allow BLM to implement immediate actions to address 
resource conditions in situations where an entity is uncooperative.
    Some comments included requests to provide BLM State Directors 
authority to petition the Secretary for additions or changes to current 
land health standards, stating that providing this authority would 
allow BLM to modify standards based on current conditions or needs and 
desires of local working groups.
    The final regulations retain the provisions in section 4180.2(b) 
that give the State Director the responsibility and authority to 
develop or modify regional standards and guidelines, following 
consideration of RAC recommendations. The Secretary of the Interior 
must approve state or regional standards or guidelines developed by the 
State Director prior to implementing them.
    One comment urged BLM to find ways to reward ranchers who achieve 
100 percent compliance with the standards for rangeland health, and to 
manage permittees who fail to achieve compliance with the standards in 
order to improve conditions on public lands.
    The grazing regulations provide sufficient incentives for good 
stewardship. Successful rangeland management may enable ranchers to 
reap rewards in the form of sustainable levels of forage from year to 
year. Ranchers who have a demonstrated record of good stewardship may 
become eligible for additional forage if it becomes available, or may 
want to explore with BLM the possibility of developing an allotment 
management plan that potentially could result in greater operational 
flexibility. However, BLM will not abrogate its responsibility to 
manage public lands, regardless of whether grazing management practices 
conform with applicable guidelines and/or an allotment achieves all 
standards.
    Several comments suggested that BLM include a ``social and 
economic'' land health standard to demonstrate consistency with the 
proposed requirement that BLM consider relevant social, economic, and 
cultural effects in their NEPA analyses of the effects of changing 
levels of grazing use.
    We have not adopted this idea in the final rule. BLM believes that 
land health standards should focus on the biotic and physical 
components of the ecosystem, and that ``human dimension'' 
considerations are best dealt with in the NEPA analyses that we 
conduct. In order to ensure consistent disclosure and consideration of 
social and economic impacts, we have included requirements in section 
4110.3(c) to analyze and, if appropriate, document relevant social, 
economic, and cultural effects as required by NEPA before changing 
grazing preference.
    One comment stated that BLM grazing regulations should have 
provisions in subpart 4180 that ensure protection of rangelands from 
further degradation, improvement of water quality, and restoration of 
areas adversely affected by grazing.
    BLM, in consultation with RACs, has developed and approved regional 
standards for rangeland health and guidelines for grazing 
administration under section 4180.2 in all areas that BLM manages for 
livestock grazing, except for the California Desert District. In the 
California Desert District the fallback standards and guidelines in 
section 4180.2(f) currently apply. Section 4130.3-1(c) requires that 
permits and leases incorporate terms and conditions to require 
conformance to standards and guidelines. BLM believes that these 
standards and guidelines adequately provide for the protection of 
rangelands from degradation, improvement of water quality, and 
restoration of areas adversely affected by livestock grazing.
    One comment urged BLM to eliminate completely the use of the 
``rapid assessment'' or indicators of rangeland health (Tech. Ref. 
1734-6) in assessing rangeland condition, stating that this is nothing 
more than the old apparent-trend scorecard that the range management 
and scientific community abandoned 70 years ago as being too 
subjective.
    The authors of the 1994 National Research Council's (NRC) 
publication Rangeland Health: New Methods to Classify, Inventory, and 
Monitor Rangelands proposed an approach to assess rangeland health that 
uses integrity of soil and ecological process as measures of rangeland 
health (p. 95). They recommended the use of 3 criteria

[[Page 39500]]

upon which to base an evaluation of rangeland health: (1) Degree of 
soil stability and watershed function, (2) integrity of nutrient 
cycling and energy flow, and (3) presence of functioning recovery 
mechanisms (p. 97, 98). The report suggests a number of indicators that 
can be used to measure and assess rangeland health. The report also 
describes the use of indicators (soil and vegetation characteristics) 
that are used by the Natural Resources Conservation Service (NRCS--
formerly the Soil Conservation Service, SCS) to indicate apparent trend 
(USDA, SCS, 1976). The majority of indicators listed in Technical 
Reference (TR) 1734-6 (jointly developed by United States Geological 
Survey, NRCS, Agricultural Research Service and Bureau of Land 
Management, 2000) are those listed in the NRC publication. BLM 
recognizes that the process for assessing and interpreting indicators 
of rangeland health as described in TR 1734-6 is qualitative, but is 
extremely useful for providing an initial assessment of land health. 
This initial assessment can then be substantiated by collection of 
quantitative data through monitoring on those areas where concerns are 
identified (BLM Manual Handbook H-4180-1 Rangeland Health Standards, 
chapter III). BLM expects to continue to use the method described in TR 
1734-6, Interpreting Indicators of Rangeland Health, in conjunction 
with monitoring to make determinations of rangeland health and whether 
or not existing livestock grazing is a significant causal factor where 
land health standards are not achieved. We have made no change in the 
final rule in response to this comment.
    One comment requested that we restrict the fallback guideline in 
section 4180.2(f)(2)(x) to the use of native plants and eliminate the 
use of non-native plant species for rehabilitation or restoration 
projects. Another comment encouraged us to retain the use of non-native 
plants for restoration and rehabilitation projects under the conditions 
listed in the fallback guideline in section 4180.2(f)(2)(x).
    It is BLM policy to use native plant species in range improvement 
and other projects intended to re-establish vegetation where they are 
available and if we expect them to be effective. The current fallback 
guideline at section 4180.2 (f)(2)(x) recognizes that at times native 
plant materials are in short supply and in certain circumstances native 
plant species cannot compete with established exotic invasive species. 
Section 4180.2(d)(12) also continues to provide that state or 
regionally developed standards for rangeland health ``[i]ncorporat[e] 
the use of non-native plant species only in those situations in which 
native species are not available in sufficient quantities or are 
incapable of maintaining or achieving properly functioning conditions 
and biological health.'' State or regionally-developed standards 
created under this regulation have recognized that, on some sites, 
native species are incapable of successfully competing with invasive 
exotics. Where this occurs, BLM uses non-natives in rehabilitation 
projects.
    One comment asserted that it may be misleading to state that most 
BLM states have completed establishment of standards. The comment went 
on to state that, in many of these states, the grazing industry 
controls state legislatures or has influence over them out of 
proportion to the contribution of the industry to the economy and to 
society, and that this brings into question the validity of state 
rangeland health standards. BLM should have ultimate responsibility for 
making this determination on lands entrusted to it by the public, the 
comment concluded, and these determinations should be made using 
techniques of rangeland science, by qualified individuals, either 
employed by or under contract to BLM.
    The comment misinterpreted what we meant by ``BLM states.'' BLM is 
organized into different administrative levels and boundaries. One of 
those levels is by state and at the state level there is a state 
office. Some of the administrative states actually include more than 
one state. For example, the Montana State Office includes the states of 
Montana, North Dakota and South Dakota. In the DEIS in Section 2.2.8, 
when we stated ``Most BLM States have completed establishment of 
standards and guidelines * * *,'' we were referring to the BLM 
administrative State Offices.
    BLM professionals, along with many of our interested publics, 
including but not limited to RACs, ranchers, and various organizations 
and individuals, were involved with the development of BLM's rangeland 
standard and guidelines. In most states, BLM coordinated or consulted 
with state agencies or the state Governor's Office during the 
development of land health standards, but not with state legislatures. 
All rangeland standards and guidelines are based on current rangeland 
science. BLM is responsible for implementing the standards and 
guidelines and determining the condition of the public rangelands that 
we administer.

VI. Procedural Matters

Executive Order 12866, Regulatory Planning and Review

    The Office of Management and Budget determined that this final rule 
is a significant regulatory action and therefore subject to review 
under Executive Order 12866. The final rule would not have an effect of 
$100 million or more on the economy. The 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 final 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, USFS regulations and procedures do not include a temporary 
suspension category, unlike the BLM provision in section 4110.3-2. The 
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 provision in section 4120.3-2 that allows for the sharing of the 
title to 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 that of the 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.
    The final rule does 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 issues. 
However, the rule raises novel policy issues by reversing or otherwise 
changing policy established in a 1995 final 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

[[Page 39501]]

impact, either detrimental or beneficial, on a substantial number of 
small entities. BLM has prepared a Final Regulatory Flexibility Act 
Analysis to address the changes in this rule and has concluded that the 
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 www.blm.gov.grazing.
    The final rule does not create a serious inconsistency or otherwise 
interfere with an action taken or planned by another agency. The rule 
does 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 final rule is not a ``major rule'' as defined at 5 U.S.C. 
804(2). The changes BLM is making in 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 is making will clarify existing requirements and 
qualifications. These changes will positively affect all applicants, 
whether small entities or not.

Unfunded Mandates Reform Act

    This amendment of 43 CFR part 4100 will 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 continues 
and strengthens requirements for BLM to consult with all of these 
governmental and other entities whenever our actions relating to 
livestock grazing are likely to affect them.

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

    The final 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 will not cause a taking of private property or 
require further discussion of takings implications under this Executive 
Order.
    One comment suggested that BLM should provide for payment to the 
permittee or lessee for any cuts in permit numbers at the prevailing 
appraised rate, in order to curtail cutting permits under the pretense 
of the ESA.
    As stated above, a grazing permit or lease authorizes a privilege 
or revocable license, not a property right protected under the 
Constitution.

Executive Order 13132, Federalism

    The final rule will 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. The rule would continue and strengthen 
requirements for BLM to consult with all of these governmental and 
other entities whenever our actions relating to livestock grazing are 
likely to affect them. Therefore, in accordance with Executive Order 
13132, BLM has determined that this final 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 the proposed rule, we included a statement that, in accordance 
with Executive Order 13175, we determined that the rule does not 
include policies that have Tribal implications. We stated that the rule 
expressly does not apply to, and these regulations expressly exclude, 
Indian lands set aside or held for the benefit of Indians from the 
effects of the rule. Comments challenged this determination.
    While BLM does not manage grazing on Indian trust land, such land 
can serve as base property, so that grazing management on public land 
for which such Indian land serves as base property could have an effect 
on the value of such land. Also, Indian cultural sites on public land 
could be affected by grazing activities and BLM management of those 
activities. In such circumstances, BLM consults with Tribal interests 
on a case-by-case basis.
    In recognition of these potential effects of grazing management on 
Indian Tribal interests, BLM contacted Tribal government 
representatives for input into the grazing rulemaking and Draft EIS. It 
began with the initiation of the public scoping process. Issues raised 
by Tribal governments, Tribal entities, and Native American individuals 
during meetings and received in letters were considered in the 
development of the Draft EIS and proposed rule.
    Once the Draft Environmental Impact Statement and proposed rule 
were ready for release and public review, including review by Tribal 
governments, over 300 Tribes west of the Mississippi River (excluding 
Alaska) were sent a letter soliciting their comments to the Draft EIS 
and proposed rule. Enclosed was a copy of the Draft EIS and proposed 
rule on a compact disk, as well as website information to find the 
document on the internet.
    The executive order requires any Federal policy that may have 
Tribal implications to be guided by three fundamental principles, 
namely, recognition of the United States' unique legal relationship 
with Indian Tribal governments, recognition of the Tribes' right to 
self-government, and support for Tribal sovereignty and self-
determination. For clarification, this final rule does not change or 
have any effect on BLM's fiduciary responsibilities, the agency's 
Tribal consultation and coordination requirements and processes, BLM's 
government-to-government obligations, or the distribution of power and 
responsibilities between BLM and Indian Tribes.
    BLM will continue to analyze effects on heritage resources, at the 
land use planning or allotment management planning level, or on a case-
by-case basis as appropriate. Besides the requirements for heritage 
resource inventories and/or surveys, Tribal consultation will begin as 
soon as possible in any case where it appears likely that the nature or 
location or both of the activity could affect Native American interests 
or concerns. BLM will give due consideration to Indian Tribal rights 
established by treaties, and to requests by Tribes, consistent with 
such rights, in the administration of grazing management and range 
improvement programs.

Executive Order 12988, Civil Justice Reform

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

[[Page 39502]]

Paperwork Reduction Act

    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: 1004-0019 and 1004-0041. The 
information collected will permit BLM to determine whether to approve 
an application to utilize public lands for grazing or other purposes. 
This rule does not contain any new information collection requirements 
that the Office of Management and Budget (OMB) must approve under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

National Environmental Policy Act (NEPA)

    Under NEPA, section 102(2)(C) (42 U.S.C. 4332(2)(C)), a Federal 
agency must prepare an Environmental Impact Statement (EIS) when a 
proposed major Federal action may result in significant impacts to the 
quality of the human environment. BLM prepared a Final EIS dated 
October 2004 and made available on June 17, 2005 (70 FR 35299 and 
35251), in compliance with the procedures for implementing NEPA, for 
these changes to the grazing regulations. On the same date, BLM 
released an ``Errata and Revisions'' document, making corrections in 
the EIS, and on March 31, 2006 (71 FR 16274 and 16302), an Addendum to 
the FEIS. The EIS stated that many of the proposed changes are largely 
administrative and are intended to improve agency administrative 
efficiency and effectiveness, improve consistency across BLM, or meet 
other non-environmental objectives, and would have little direct or 
indirect effect on the environment. The EIS also indicated that 
although most of the proposed regulatory changes have little or no 
adverse impacts on the human environment, some short-term adverse 
effects may occur because of increases in timeframes associated with 
several components of the rule. These include the provision for a 5-
year phase-in of changes in use of more than 10 percent, the 
requirement that existing or new monitoring data be used to support a 
determination that livestock grazing significantly contributes to not 
meeting one or more standards or does not conform to guidelines, and 
the allowance of 24 months for analysis, formulation and initiation of 
appropriate remedial action following a determination that that 
livestock grazing significantly contributes to not meeting one or more 
standards or does not conform to guidelines. The EIS stated also, 
however, that implementing these changes would result in the 
development of better and more sustainable decisions, because 
determinations would be based on monitoring information. Also, the rule 
provides a more reasonable time (up to 24 months) following a 
determination for satisfying legal consultation requirements and 
analyzing, formulating, and beginning implementation of appropriate 
action to ensure progress towards standards attainment or to conform 
with guidelines. In the long-term, we expect that implementing these 
provisions will be beneficial to rangeland health.
    Since publication of the existing regulations in 1995, we found 
that some sections of the regulations resulted in unforeseen problems. 
As BLM continued to gain experience in implementing the regulations, we 
found that some of the difficulties could be resolved by minor 
clarifications or changes in the regulations. We refined the list of 
sections of the regulations that we believed would benefit from a 
change, and reduced the number of changes. As we worked with the 
public, it became clear there would be some controversy over impacts of 
the changes. As we continued working with the public, we expected there 
would be controversy over impacts of the changes. We decided early in 
the process to prepare an EIS because we wanted to develop the rule in 
a way that solicited continued public involvement and comment in a 
manner typical of an EIS. We believed that such an open public process 
would provide helpful added exposure resulting from using an EIS as the 
environmental document soliciting public review and comment. BLM 
published an Advance Notice of Proposed Rulemaking (ANPR) and Notice of 
Intent to Prepare an EIS (NOI) in the Federal Register on March 3, 2003 
(68 FR 9964-9966 and 10030-10032).
    BLM's Final EIS is on file and available in the BLM Administrative 
Record at the address specified in the ADDRESSES section. The EIS 
considers the impacts of these changes to the grazing regulations. You 
may review the EIS and related documents via the interactive ePlanning 
Web site at www.blm.gov/grazing.
    Many comments raised questions about the adequacy of the Draft EIS, 
specifically with regard to the range of alternatives considered in the 
EIS. We considered these comments and responded to the concerns earlier 
in this Preamble (Section IV. General Comments, under the headings 
``Purpose and Need'' and ``Range of Alternatives''). We responded to 
comments regarding the adequacy of the NEPA analysis associated with 
specific regulatory amendments in Section V. ``Section-by-Section 
Analysis and Response to Comments.''
    One comment stated that BLM ``subverted'' the NEPA process by 
issuing the DEIS after the proposed rule was published.
    The DEIS was available to the public as of January 6, 2004 (69 FR 
569), approximately one month after the proposed rule was published in 
the Federal Register. BLM extended the public comment period to take 
this time lag into account and to afford the public sufficient time to 
comment on the proposed rule and DEIS. The fact that the DEIS was 
published after the proposed rule in no way interfered with or 
``subverted'' the NEPA process. The DEIS was available early enough in 
the process to be useful to BLM in its deliberations.

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

    In accordance with Executive Order 13211, BLM finds that this final 
rule is not likely to have a significant adverse effect on the supply, 
distribution, or use of energy. This rule has no bearing on the 
distribution or use of energy.

Data Quality Act

    In developing this rule, we did not conduct or use a study, 
experiment, or survey requiring peer review under the Data Quality Act 
(Pub. L. 106-554).

Author

    The principal author of this rule is Ken Visser, Rangeland 
Management Specialist; Rangeland, Soil, Water and Air Division, 
assisted by Richard Mayberry of that division, and Ted Hudson of the 
Regulatory Affairs Division, Washington Office, BLM.

List of Subjects in 43 CFR Part 4100

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

    Dated: June 21, 2006.
Julie A. Jacobson,
Deputy Assistant Secretary of the Interior.

0
For the reasons stated in the preamble, and under the authorities cited 
below, Title 43, Subtitle B, Chapter II, Subchapter D, Part 4100, is 
amended as follows:

[[Page 39503]]

PART 4100--GRAZING ADMINISTRATION--EXCLUSIVE OF ALASKA

0
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

0
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)).

0
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.

0
4. Amend Sec.  4100.0-5 by removing the definitions of ``conservation 
use'' and ``permitted use'', and revising the definitions of ``active 
use,'' ``district,'' ``ephemeral rangelands,'' ``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 livestock carrying capacity and resource conditions in an 
allotment; and
    (2) Not in suspension.
* * * * *
    District means the specific area of public lands administered by a 
District Manager or a Field Manager.
    Ephemeral rangelands means areas of the Hot Desert Biome (Region) 
that do not consistently produce enough forage to sustain a livestock 
operation, but from time to time produce sufficient forage to 
accommodate livestock grazing.
* * * * *
    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 decisionmaking process as to a 
specific allotment, and
    (ii) Followed up that request by submitting written comment as to 
management of a specific allotment, or otherwise participating in the 
decisionmaking process as to a specific allotment, if BLM has provided 
them an opportunity for comment or other participation; or
    (2) Submitted written comments to the authorized officer regarding 
the management of livestock grazing on a specific 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.
* * * * *

0
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

0
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).
* * * * *

0
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).

0
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.

[[Page 39504]]

    (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.

0
9. Amend Sec.  4110.2-3 by revising paragraphs (b) and (c) 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, in animal unit months, attached to that base property.
    (c) If a grazing preference is being transferred from one base 
property to another base property, the transferor shall own or control 
the base property from which the grazing preference is being 
transferred and file with the authorized officer a properly completed 
transfer application for approval. No transfer will be allowed without 
the written consent of the owner(s), and any person or entity holding 
an encumbrance of the base property from which the transfer is to be 
made.
* * * * *

0
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.

0
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 making progress toward restoring ecosystems to 
properly functioning condition;
    (3) Conform with land use plans or activity plans; or
    (4) Comply with the provisions of subpart 4180 of this part.
    (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 required by the National 
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.). Under 
NEPA, the authorized officer will analyze and, if appropriate, document 
the relevant social, economic, and cultural effects of the proposed 
action.

0
12. Revise Sec.  4110.3-1 to read as follows:


Sec.  4110.3-1  Increasing active use.

    When monitoring or documented field observations show that 
additional forage is available for livestock grazing, either on a 
temporary or sustained yield basis, 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 forage is temporarily available for 
livestock, he may authorize its use on a nonrenewable basis under Sec.  
4130.6-2 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 
for livestock use 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 or responsibility for managing resources within the area, 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) Permittees or lessees in proportion to the amount of their 
grazing preference; and
    (iii) Other qualified applicants under Sec.  4130.1-2.

0
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 of this part, 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.

0
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 
responsibility for 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

[[Page 39505]]

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, or 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.  4.472 of 
this title.

0
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

0
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.
* * * * *

0
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.

0
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 will share title to permanent structural range improvements such 
as fences, wells, and pipelines where authorization is granted after 
August 11, 2006 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).
* * * * *

0
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.

* * * * *
    (c) If forage available for livestock is not or will not be used by 
the preference permittee or lessee, BLM may issue nonrenewable grazing 
permits or leases to other qualified applicants to use it under 
Sec. Sec.  4130.6-2 and 4130.4(d), or Sec.  4110.3-1(a)(2). The term 
``forage available for livestock'' does not include temporary nonuse 
that BLM approves for reasons of natural resource conservation, 
enhancement, or protection, or use suspended by BLM under Sec.  4110.3-
2(b). Before issuing a nonrenewable permit or lease, BLM will consult, 
cooperate, and coordinate as provided in Sec.  4130.6-2. If BLM issues 
such a nonrenewable permit or lease, the preference permittee or lessee 
shall cooperate with the temporary authorized use of forage by another 
operator.
* * * * *

0
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''.

0
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.

0
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'', by revising the section heading and the second sentence of the 
introductory text, and by adding paragraph (c), to read as follows:


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

    * * * The authorized officer will cooperate with Tribal, state, 
county, and Federal agencies in the administration of laws and 
regulations relating to livestock, livestock diseases, sanitation, and 
noxious weeds, including--
* * * * *
    (c) Tribal, state, county, or local government-established grazing 
boards in reviewing range improvements and allotment management plans 
on public lands.

0
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 of permits and leases or issuance of permits and leases 
that authorize use of new or transferred preference, and any 
affiliates, have a satisfactory record of performance. The authorized 
officer will not renew or issue a permit or lease 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 or transfer of grazing preference. The 
authorized officer will deem applicants for new permits or leases or 
transfer of grazing preference, including permits or leases that arise 
from transfer of preference, 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

[[Page 39506]]

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 has not barred 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.

0
24. Amend Sec.  4130.2:
0
a. By adding the word ``and'' after the semicolon at the end of 
paragraph (e)(2);
0
b. By removing paragraphs (g) and (h) and redesignating paragraphs (i) 
and (j) as paragraphs (g) and (h), respectively;
0
c. In redesignated paragraph (g), by revising the reference ``(see 
Sec.  4130.3-2)'' to read ``(see Sec.  4130.3-2(g))''; and
0
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 BLM and the 
permittee or lessee have signed it.
* * * * *

0
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 of this part.
    (c) If any term or condition of a BLM-offered permit or lease is 
stayed pending appeal, BLM will authorize grazing use as provided in 
Sec.  4160.4 with respect to the stayed term or condition.

0
26. 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
    (iii) An applicable decision issued under Sec.  4160.3; or
    (2) Do not conform to the provisions of subpart 4180 of this part.
    (b) To the extent practical, during the preparation of 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 
otherwise to change the terms and conditions of a permit or lease, the 
authorized officer will provide the following with an opportunity to 
review and offer input:
    (1) Affected permittees or lessees;
    (2) States having lands or responsibility for managing resources 
within the affected area; and
    (3) The interested public.

0
27. 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, including temporary 
nonuse.

    (a) The authorized officer may authorize temporary changes in 
grazing use within the terms and conditions of the permit or lease.
    (b) For the purposes of this subpart, ``temporary changes in 
grazing use within the terms and conditions of the permit or lease'' 
means temporary changes in livestock number, period of use, or both, 
that would:
    (1) Result in temporary nonuse; or
    (2) Result in forage removal that--
    (i) Does not exceed the amount of active use specified in the 
permit or lease; and
    (ii) 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, unless otherwise specified 
in the appropriate allotment management plan under Sec.  4120.2(a)(3); 
or
    (3) Result in both temporary nonuse under paragraph (b)(1) of this 
section and forage removal under paragraph (b)(2) of this section.
    (c) 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.
    (d) 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 (e) of this section;
    (2) To use forage previously authorized as temporary nonuse; or
    (3) To use forage that is temporarily available on designated 
ephemeral or annual ranges.
    (e)(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 may 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.
    (f) 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 
(e)(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 (e)(2)(i) of this section.
    (g) Permittees or lessees who wish to obtain temporary changes in 
grazing use within the terms and conditions of their permit or lease 
must file an application in writing with BLM on or before the date they 
wish the change in grazing use to begin. 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.

[[Page 39507]]


0
28. Amend Sec.  4130.5 by removing the words ``authorized'' and ``or 
conservation use'' from where they appear in paragraph (b)(1).

0
29. Revise Sec.  4130.6-2 to read as follows:


Sec.  4130.6-2  Nonrenewable grazing permits and leases.

    (a) Nonrenewable grazing permits or leases may be issued on an 
annual basis, as provided in Sec.  4110.3-1(a), to qualified applicants 
when forage is temporarily available, provided this use is consistent 
with multiple-use objectives and does not interfere with existing 
livestock operations on the public lands. 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.
    (b) Notwithstanding the provisions of Sec.  4.21(a)(1) of this 
title, when BLM determines that it is necessary for orderly 
administration of the public lands, the authorized officer may make a 
decision that issues a nonrenewable grazing permit or lease, or that 
affects an application for grazing use on annual or designated 
ephemeral rangelands, effective immediately or on a date established in 
the decision.

0
30. 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 after the due date 
is a violation of Sec.  4140.1(b)(1) and may result in action by the 
authorized officer under Sec.  4150.1 and subpart 4160 of this part.

0
31. 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, BLM may establish reasonable charges for various services 
such as application processing. BLM may adjust these charges 
periodically to account for cost changes. BLM will inform the public of 
any changes by publishing a notice in the Federal Register.
    (b) The following table of service charges is applicable until 
changed through a Federal Register notice as provided in paragraph (a) 
of this section. Except when the action is initiated by BLM, the 
authorized officer will assess the following service charges:

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

Subpart 4140--Prohibited Acts

0
32. Amend Sec.  4140.1 by--
0
a. Removing the introductory text; and
0
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 by a 
permit or lease for 2 consecutive fee years. This does not include 
approved temporary nonuse or use temporarily suspended by the 
authorized officer;
    (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 archaeological or cultural 
resources.
    (3)(i) Violation of the Bald and Golden Eagle Protection Act (16 
U.S.C. 668 et seq.), ESA (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 straying of livestock from permitted public land grazing 
areas onto areas that have been formally closed to open range grazing.

Subpart 4150--Unauthorized Grazing Use

0
33. Amend Sec.  4150.2 by revising the last sentence of paragraph (d) 
to read as follows:

[[Page 39508]]

Sec.  4150.2  Notice and order to remove.

* * * * *
    (d) * * * Such notices of closure may be issued as final decisions 
effective upon issuance or on the date specified in the decision and 
shall remain in effect pending the decision on appeal unless a stay is 
granted by the Office of Hearings and Appeals in accordance with 43 CFR 
4.472(d).

0
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 
of this part 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 4100 pending completion of the 
administrative appeal process.

Subpart 4160--Administrative Remedies

0
35. Amend Sec.  4160.1 by revising paragraph (c) and adding paragraph 
(d) to read as follows:


Sec.  4160.1  Proposed decisions.

* * * * *
    (c) The authorized officer may elect not to issue a proposed 
decision prior to a final decision where the authorized officer has 
made a determination in accordance with Sec. Sec.  4110.3-3(b), 4130.6-
2(b), 4150.2(d), or 4190.1(a).
    (d) A biological assessment or biological evaluation prepared by 
BLM for purposes of an ESA consultation or conference is not a proposed 
or final decision for purposes of protest or appeal.

0
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. Sec.  4110.3-3(b), 4130.6-2(b), 4150.2(d), or 4190.1(a). 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. Sec.  4.21(a)(1) and 4.479(c) 
of this title.

0
37. Revise Sec.  4160.4 to read as follows:


Sec.  4160.4  Appeals.

    (a) Any person whose interest is adversely affected who wishes to 
appeal or seek a stay of a final BLM grazing decision must follow the 
requirements set forth in Sec.  4.472 of this title. The appeal and any 
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 all or a portion of a BLM grazing decision that 
affects a grazing permit or lease, BLM will authorize grazing use as 
follows:
    (1) When OHA stays implementation of all or part of a grazing 
decision that cancels or suspends a permit or lease, changes any term 
or condition of a permit or lease during its current term, or renews a 
permit or lease, BLM will continue to authorize grazing under the 
permit or lease, or the relevant term or condition thereof, that was in 
effect immediately before the decision was issued, subject to any 
relevant provisions of the stay order. This continued authorization 
will expire upon the resolution of the administrative appeal. Such 
continued authorization is not subject to protest or appeal.
    (2) When OHA stays implementation of a grazing decision that issues 
or denies issuance of a permit or lease to a preference transferee, BLM 
will issue the preference applicant a permit or lease with terms and 
conditions that are the same as the terms and conditions of the most 
recent permit or lease applicable to the allotment or portion of the 
allotment in question, subject to any relevant provisions of the stay 
order. This temporary permit will expire upon the resolution of the 
administrative appeal. Issuance of the temporary permit is not a 
decision subject to protest or appeal.
    (3) When OHA stays implementation of a grazing decision that issues 
a permit or lease to a preference transferee with terms and conditions 
different from terms and conditions of the most recent permit or lease 
applicable to the allotment or portion of the allotment in question, 
BLM will issue the preference applicant a permit or lease that, with 
respect to any stayed term or condition, is the same as the terms and 
conditions of the most recent permit or lease applicable to the 
allotment or portion of the allotment in question, subject to any 
relevant provisions of the stay order. This temporary permit will 
expire upon the resolution of the administrative appeal. Issuance of 
the temporary permit is not a decision subject to protest or appeal.

Subpart 4170--Penalties

0
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 the grazing 
operation, the authorized officer, after consultation, cooperation, and 
coordination 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

0
39. Amend Sec.  4180.1 by revising the introductory text and paragraph 
(d) to read as follows:


Sec.  4180.1  Fundamentals of rangeland health.

    Standards and guidelines developed or revised by a Bureau of Land 
Management State Director under Sec.  4180.2(b) must be consistent with 
the following fundamentals of rangeland health:
* * * * *
    (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 special status species.

0
40. Amend Sec.  4180.2 by--
0
a. Removing the third sentence of paragraph (b);
0
b. Removing the semicolon at the end of paragraph (e)(12) and adding in 
its place a period;
0
c. 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:

[[Page 39509]]

Sec.  4180.2  Standards and guidelines for grazing administration.

* * * * *
    (c)(1) If a standards assessment indicates to the authorized 
officer that the rangeland is failing to achieve standards or that 
management practices do not conform to the guidelines, then the 
authorized officer will use monitoring data to identify the significant 
factors that contribute to failing to achieve the standards or to 
conform with the guidelines. 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.
    (i) Parties will execute a documented agreement and/or the 
authorized officer will issue a final decision on the appropriate 
action under Sec.  4160.3 as soon as practicable, but not later than 24 
months after a determination.
    (ii) BLM may extend the deadline for meeting the requirements 
established in paragraph (c)(1)(i) of this section when legally 
required processes that are the responsibility of another agency 
prevent completion of all legal obligations within the 24-month time 
frame. BLM will make a decision as soon as practicable after the legal 
requirements are met.
    (2) Upon executing the agreement and/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 of this part that will 
result in significant progress toward fulfillment of the standards and 
significant progress toward conformance with the guidelines. Practices 
and activities subject to standards and guidelines include the 
development of grazing-related portions of activity plans, 
establishment of terms and conditions of permits, leases, and other 
grazing authorizations, and range improvement activities such as 
vegetation manipulation, fence construction, and development of water.
    (d) At a minimum, state 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, and 
other special status species; and
* * * * *
    (e) * * *
    (9) Restoring, maintaining or enhancing habitats of Federal 
proposed, Federal candidate, and other 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 special status species is promoted by the 
restoration and maintenance of their habitats;
* * * * *
[FR Doc.06-5788 Filed 7-11-06; 8:45 am]
BILLING CODE 4310-84-P