[Federal Register Volume 85, Number 212 (Monday, November 2, 2020)]
[Proposed Rules]
[Pages 69303-69307]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-24164]


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DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Part 222

RIN 0596-AD45


Assessing Fees for Excess and Unauthorized Grazing

AGENCY: Forest Service, USDA.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The U.S. Department of Agriculture, Forest Service (Agency), 
is

[[Page 69304]]

proposing to amend its existing regulations to provide for nonmonetary 
settlement when excess or unauthorized grazing is determined to be non-
willful, a standard consistent with practices of the Bureau of Land 
Management, as recommended by the July 2016 Government Accountability 
Office (GAO) in its report to the Committee on Natural Resources, House 
of Representatives, Unauthorized Grazing, Actions Needed to Improve 
Tracking and Deterrence Efforts (GAO-16-559).

DATES: To be ensured consideration, comments must be received in 
writing on or before December 2, 2020.

ADDRESSES: You may send comments using one of the following methods:
    1. Submit comments electronically by following the instructions at 
the Federal eRulemaking portal at http://www.regulations.gov.
    2. Mail: U. S. Forest Service, Director, Forest Management, Range 
Management and Vegetation Ecology, 201 14th Street SW, Suite 3SE, 
Washington, DC 20250-1124.
    3. Hand Delivery/Courier: U. S. Forest Service, Director, Forest 
Management, Range Management and Vegetation Ecology, 201 14th Street 
SW, Suite 3SE, Washington, DC 20250-1124.
    All comments, including all content, will be placed in the record 
and will be available for public inspection and copying. Therefore, the 
Agency recommends that commenters remove personal information such as 
Social Security Numbers, personal addresses, telephone numbers, and 
email addresses included in their comments as such information may 
become easily available to the public.
    Also, please note that, due to security concerns, postal mail 
delivery in Washington, DC may be delayed. Therefore, the Agency 
encourages the public to submit comments electronically.

FOR FURTHER INFORMATION CONTACT: Myra Black, Program Manager, Forest 
Management, Range Management and Vegetation Ecology, 202-650-7365, 
[email protected]. Individuals who use telecommunication devices for 
the deaf may call the Federal Relay Service at 800-877-8339 between 
8:00 a.m. and 8:00 p.m., Eastern Standard Time, Monday through Friday.

SUPPLEMENTARY INFORMATION:

Background

    The Forest Service is responsible for managing National Forest 
System (NFS) lands that provide forage for domestic livestock grazing. 
The Forest Service's authority to regulate livestock grazing comes from 
the Organic Administration Act of 1897, which named grazing as an early 
use of lands administered by the Forest Service. The Forest Service 
managed grazing under its general authorities until 1950, when Congress 
enacted the Granger-Thye Act, specifically authorizing the Secretary of 
Agriculture to issue grazing permits on NFS lands and other lands 
administered by the U.S Department of Agriculture. The Forest Service 
permits the occupancy and use of NFS lands by domestic livestock 
through Term Grazing Permits pursuant to 36 CFR 222.3. The regulations 
at 36 CFR 222.50(a) require the Agency to charge fees ``for all grazing 
or livestock use of National Forest System lands, or other lands under 
Forest Service control.''
    Congress asked the Government Accountability Office (GAO) to 
examine what is known about the frequency and extent of unauthorized 
grazing on federal lands, and its effects, as well as review the Bureau 
of Land Management's (BLM) and Forest Service's efforts to detect, 
deter, and resolve unauthorized grazing. Excess use is when livestock 
stray outside of their permitted area and graze in an unauthorized area 
or a permittee intentionally overstays the permitted grazing period. 
Unauthorized use is when livestock, owned or controlled by a non-
permittee, graze on National Forest System lands. In July 2016, GAO 
issued a Report to the Committee on Natural Resources, House of 
Representatives, Unauthorized Grazing, Actions Needed to Improve 
Tracking and Deterrence Efforts (GAO-16-559). The Report recommended 
that the Forest Service amend its regulations on range management (36 
CFR part 222) to provide an option for nonmonetary settlement when 
unauthorized or excess grazing is non-willful, in addition to the 
option of following its existing regulations at 36 CFR 222.50(a) and 
(h). The GAO report also recommended that the Forest Service record all 
incidents of unauthorized grazing, including those resolved informally. 
The Agency will develop direction for implementing the latter 
recommendation in the Forest Service Manual and Handbook for Rangeland 
Management at a later date.

Need for Proposed Rule

    The GAO found that the frequency and extent of unauthorized grazing 
on NFS lands is largely unknown because, according to Agency officials, 
the Agency handles most incidents informally (e.g., with a telephone 
call) and does not document them. The incidents that were recorded 
involved formal action taken by the Agency rangeland management program 
or law enforcement staff., such as issuance of a Notice of Non-
Compliance and/or a Bill for Collection.
    The proposed rule provides the flexibility to resolve incidents 
informally without charging unauthorized grazing penalties, while 
retaining the option for monetary relief for willful excess or 
unauthorized grazing. Informal resolution involves the permittee or 
non-permittee removing the livestock following a phone call from or 
face-to-face conversation with the authorized officer. The incident 
should be noted in the files as non-willful, and the settlement would 
be considered nonmonetary as no Bill for Collection would be issued.
    Informal resolution, such as a phone call or face-to-face 
conversation, is an effective way to resolve non-willful unauthorized 
grazing. Amending the Agency's grazing regulations to provide for the 
informal resolution and nonmonetary settlement of infractions allows 
the Agency to achieve the objective of effectively and efficiently 
resolving such incidents, and it effectively addresses one of GAO's 
recommendations.

Discussion of Proposed Regulatory Revisions

    Section 36 CFR 222.50 of the current grazing regulations describes 
the general procedures for charging grazing fees for all livestock 
grazing or livestock use of National Forest System lands. Specifically, 
section 222.50(h) describes the unauthorized use rate and how it 
applies to: excess number of livestock grazing by permittees; livestock 
grazed outside the permitted grazing season; or livestock grazed under 
an unvalidated permit.
    The Forest Service proposes to amend 36 CFR 222 subpart C, to allow 
the authorized officer to approve nonmonetary settlement for excess or 
unauthorized grazing use when the use is non-willful. The authorized 
officer may approve non-monetary settlement for excess or unauthorized 
grazing use only when certain conditions set forth in the regulation 
are met.
    The proposed language is consistent with the language used by BLM 
to describe non-willful grazing use. In order to ensure that the 
proposed language is clear, the Forest Service proposes to add the 
definition of non-permittee and non-willful to the definitions section 
found at 36 CFR 222.1(b). In addition, the definitions section is 
restated to remove numbering, consistent with the Federal Register 
Document Drafting Handbook (August 2018 Edition, Revision 1.1 dated 
August

[[Page 69305]]

9, 2019; National Archives and Records Administration).
    The proposed language removes reference to the fee being adjusted 
by the same indexes used to adjust the regular fee since the first 
sentence already describes that the rate is determined by establishing 
a base value. In addition, the current rule language refers to an 
unvalidated permit, which describes a new permit's status prior to 
being validated. Validation occurs by stocking the allotment for the 
first time with at least ninety percent of the permitted livestock 
during the first season of grazing use under the new permit. The 
proposed language removes the reference to an unvalidated permit and 
replaces it with the four most common situations in which the Forest 
Service encounters excess or unauthorized use. Those examples of excess 
and unauthorized use include but are not limited to: excess number of 
livestock grazed; livestock grazed outside the permitted grazing 
season; livestock grazed in areas not authorized under a grazing permit 
and bill for collection; or livestock grazed without a permit.

Regulatory Certifications

Executive Order 12866

    Executive Order (E.O.) 12866 provides that the Office of 
Information and Regulatory Affairs (OIRA) in the Office of Management 
and Budget will review all significant rules. OIRA has determined that 
this proposed rule is not significant.

Executive Order 13771

    This proposed rule has been reviewed in accordance with E.O. 13771 
on reducing regulation and controlling regulatory costs and has been 
designated as an ``other action'' for purposes of the E.O.

Civil Rights Impact Analysis

    A Civil Rights Impact Analysis (CRIA) was conducted in accordance 
with USDA Departmental Regulation (DR) 4300-4, to determine if 
implementation of the proposed rules (and accompanying rangeland 
management directives) would have disproportionate effects or adverse 
impacts on employees or program beneficiaries, because of membership in 
protected groups identified in USDA DR 4300-4 and DR 5600-002, 
particularly women, ethnic and racial minorities, and people with 
disabilities. The proposed rules and directives have been analyzed to 
ensure compliance with USDA's DR 4300-4, and it is determined that no 
adverse impacts on protected groups are expected as a result of 
implementation of the proposed rules or directives.

Congressional Review Act

    Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), 
OIRA has designated this proposed rule as not a major rule as defined 
by 5 U.S.C. 804(2).

National Environmental Policy Act

    The proposed rule would allow an authorized officer to determine 
that a nonmonetary settlement is appropriate when excess or 
unauthorized livestock use was non-willful on behalf of the permittee 
or non-permittee and add clarity to what the agency means by the term 
non-willful. Agency regulations at 36 CFR 220.6(d)(2) (73 FR 43093) 
exclude from documentation in an environmental assessment or 
environmental impact statement, as well as in a decision memo, rules, 
regulations, or policies to establish Service-wide administrative 
procedures, program processes, or instructions. The revisions to Sec.  
222.50(h) and Sec.  222.1(b) address the penalty for non-willful 
actions taken on National Forest System land and provide a definition 
for a term used in the revised language. The proposed language removes 
reference to an unvalidated permit and replaces it with the four most 
common situations that the Forest Service considers excess or 
unauthorized use, which is not intended to be an exclusive list. As the 
regulation is limited to determination of waiver of excess or 
unauthorized use fees (nonmonetary settlement), no ground disturbing 
activities are implicated by these revisions. Thus, the Agency has 
concluded that the proposed rule falls within this category of actions 
and that no extraordinary circumstances exist which would require 
preparation of an environmental assessment or environmental impact 
statement.

Regulatory Flexibility Act Analysis

    The Agency has considered the impacts of the proposed rule on small 
entities consistent with the requirements of the Regulatory Flexibility 
Act (5 U.S.C. 601 et seq.) as amended by the Small Business Regulatory 
Flexibility Enforcement Fairness Act of 1996 (SBREFA), and Executive 
Orders 13272 (Proper Consideration of Small Entities in Agency 
Rulemaking). This proposed rule would not have any direct effect on 
small entities as defined by the Regulatory Flexibility Act. The 
proposed rule would not impose recordkeeping requirements on small 
entities; would not affect their competitive position in relation to 
large entities; and would not affect their cash flow, liquidity, or 
ability to remain in the market. Additionally, it reduces the 
administrative burden on livestock operators by allowing for informal 
nonmonetary resolution of a situation that would typically require an 
administrative process to resolve. Therefore, the Forest Service has 
determined that this proposed rule would not have a significant 
economic impact on a substantial number of small entities pursuant to 
the Regulatory Flexibility Act.

Federalism

    The Agency has considered the proposed rule under the requirements 
of E.O. 13132, Federalism. The Agency has determined that the proposed 
rule conforms with the federalism principles set out in this executive 
order; would not impose any compliance costs on the states; and would 
not have substantial direct effects on the states, on the relationship 
between the Federal government and the states, or on the distribution 
of power and responsibilities among the various levels of government. 
Therefore, the Agency has concluded that the proposed rule does not 
have Federalism implications.

Consultation With Tribal Governments

    In accordance with Executive Order 13175, the Agency is conducting 
Tribal consultation for the proposed rule. To ensure tribal 
perspectives are heard and fully considered during rulemaking, the 
Agency contacted all federally recognized Indian tribes and Alaska 
Native corporations in accordance with E.O. 13175, (Consultation and 
Coordination with Indian Tribal Governments); USDA Departmental 
Regulation 1350-02 (Tribal Consultation, Coordination and 
Collaboration); and Forest Service Handbook 1509.13, Chapter 10 
(Consultation with Indian Tribes and Alaska Native Corporations). The 
Agency initiated formal consultation on the rulemaking by contacting 
the Indian tribes and Alaska Native Corporations by mail.

No Takings Implications

    The Agency has analyzed the proposed rule in accordance with the 
principles and criteria in E.O. 12630, Governmental Actions and 
Interference with Constitutionally Protected Property Rights. The 
Agency has determined that the proposed rule would not pose the risk of 
a taking of private property.

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Energy Effects

    The Agency has reviewed the proposed rule under E.O. 13211, Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. The Agency has determined that the proposed rule 
would not constitute a significant energy action as defined in E.O. 
13211.

Civil Justice Reform

    The Forest Service has analyzed the proposed rule in accordance 
with the principles and criteria in E.O. 12988, Civil Justice Reform. 
The Agency has not identified any State or local laws or regulations 
that conflict with this regulation or that would impede full 
implementation of this rule. Nevertheless, if such conflicts were to be 
identified, the proposed rule, if implemented, will preempt the State 
or local laws or regulations that are found to be in conflict. However, 
in that case of a conflict, (1) no retroactive effect will be given to 
this final rule; and (2) USDA will not require the use of 
administrative proceedings before parties could file suit in court 
challenging its provisions.

Unfunded Mandates

    Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2 
U.S.C. 1531-1538), signed into law on March 22, 1995, the Agency has 
assessed the effects of the proposed rule on state, local, and Tribal 
governments and the private sector. The proposed rule would not compel 
the expenditure of $100 million or more by any state, local, or Tribal 
government or anyone in the private sector. Therefore, a statement 
under section 202 of the Act is not required.

Controlling Paperwork Burdens on the Public

    The proposed rule does not contain any recordkeeping or reporting 
requirements or other information collection requirements as defined in 
5 CFR part 1320 that are not already required by law or not already 
approved for use. Accordingly, the review provisions of the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.) and its implementing 
regulations at 5 CFR part 1320 do not apply.

List of Subjects in 36 CFR Part 222

    Grazing and Livestock Use on the National Forest System, Mediation 
of Term Grazing Permit Disputes, Grazing Fees, Management of Wild Free-
Roaming Horses and Burros.

    For the reasons discussed in the preamble, the Forest Service 
proposes to amend part 222, subparts A and C, of Title 36 of the Code 
of Federal Regulations as follows:

PART 222--RANGE MANAGEMENT

Subpart A--Grazing and Livestock Use on the National Forest System

0
1. The authority citation for part 222, subpart A, continues to read as 
follows:

    Authority: 92 Stat. 1803, as amended (43 U.S.C. 1901), 85 Stat. 
649, as amended (16 U.S.C. 1331-1340); sec. 1, 30 Stat. 35, as 
amended (18 U.S.C. 551); sec. 32, 50 Stat. 522, as amended (7 U.S.C. 
1011).

0
2. In Sec.  222.1(b), revise paragraph (b) to to read as follows:


Sec.  222.1  Authority and definitions.

* * * * *
    (b) Definitions.
    Allotment means a designated area of land available for livestock 
grazing.
    Allotment management plan means a document that specifies the 
program of action designated to reach a given set of objectives. It is 
prepared in consultation with the permittee(s) involved and:
    (i) Prescribes the manner in and extent to which livestock 
operations will be conducted in order to meet the multiple-use, 
sustained yield, economic, and other needs and objectives as determined 
for the lands, involved; and
    (ii) Describes the type, location, ownership, and general 
specifications for the range improvements in place or to be installed 
and maintained on the lands to meet the livestock grazing and other 
objectives of land management; and
    (iii) Contains such other provisions relating to livestock grazing 
and other objectives as may be prescribed by the Chief, Forest Service, 
consistent with applicable law.
    Base property means land and improvements owned and used by the 
permittee for a farm or ranch operation and specifically designated by 
him to qualify for a term grazing permit.
    Cancel means action taken to permanently invalidate a term grazing 
permit in whole or in part.
    Grazing permit means any document authorizing livestock to use 
National Forest System or other lands under Forest Service control for 
the purpose of livestock production including:
    (i) Temporary grazing permits for grazing livestock temporarily and 
without priority for reissuance.
    (ii) Term permits for up to 10 years with priority for renewal at 
the end of the term.
    Land subject to commercial livestock grazing means National Forest 
System lands within established allotments.
    Lands within the National Forest in the 16 contiguous western 
States means lands designated as National Forest within the boundaries 
of Arizona, California, Colorado, Idaho, Kansas, Montana, Nebraska, 
Nevada, New Mexico, North Dakota, Oklahoma, Oregon, South Dakota, Utah, 
Washington, and Wyoming (National Grasslands are excluded).
    Livestock means animals of any kind kept or raised for use or 
pleasure.
    Livestock use permit means a permit issued for not to exceed one 
year where the primary use is for other than grazing livestock.
    Modify means to revise the terms and conditions of an issued 
permit.
    National Forest System lands means the National Forests, National 
Grasslands, Land Utilization Projects, and other Federal lands for 
which the Forest Service has administrative jurisdiction.
    Non-permittee means a person who owns or controls livestock and 
does not have a grazing permit to graze livestock on National Forest 
System lands.
    Non-willful means an action which is inadvertent or accidental, and 
not due to gross negligence.
    On-and-off grazing permits means permits with specific provisions 
on range only part of which is National Forest System lands or other 
lands under Forest Service control.
    On-the-ground expenditure means payment of direct project costs of 
implementing an improvement or development, such as survey and design, 
equipment, labor and material (or contract) costs, and on-the-ground 
supervision.
    Other lands under Forest Service control means non-Federal public 
and private lands over which the Forest Service has been given control 
through lease, agreement, waiver, or otherwise.
    Permittee means any person who has been issued a grazing permit.
    Permitted livestock means livestock authorized by a written permit.
    Person means any individual, partnership, corporation, association, 
organization, or other private entity, but does not include Government 
Agencies.
    Private land grazing permits means permits issued to persons who 
control grazing lands adjacent to National Forest System lands and who 
waive exclusive grazing use of these lands to the United States for the 
full period the permit is to be issued.
    Range betterment means rehabilitation, protection and improvement 
of National Forest System lands to arrest range deterioration and 
improve forage conditions, fish and

[[Page 69307]]

wildlife habitat, watershed protection, and livestock production.
    Range betterment fund means the fund established by title IV, 
section 401(b)(1), of the Federal Land Policy and Management Act of 
1976. This consists of 50 percent of all monies received by the United 
States as fees for grazing livestock on the National Forests in the 16 
contiguous western States.
    Range Improvement means any activity or program designed to improve 
production of forage and includes facilities or treatments constructed 
or installed for the purpose of improving the range resource or the 
management of livestock and includes the following types:
    (i) Non-structural which are practices and treatments undertaken to 
improve range not involving construction of improvements.
    (ii) Structural which are improvements requiring construction or 
installation undertaken to improve the range or to facilitate 
management or to control distribution and movement of livestock.
    (A) Permanent means range improvements installed or constructed and 
become a part of the land such as: Dams, ponds, pipelines, wells, 
fences, trails, seeding, etc.
    (B) Temporary means short-lived or portable improvements that can 
be removed such as: Troughs, pumps and electric fences, including 
improvements at authorized places of habitation such as line camps.
    Suspend means temporary withholding of a term grazing permit 
privilege, in whole or in part.
    Term period means the period for which term permits are issued, the 
maximum of which is 10 years.
    Transportation livestock means livestock used as pack and saddle 
stock for travel on the National Forest System.
* * * * *

Subpart C--Grazing Fees

0
3 The authority citation for part 222, subpart C, continues to read as 
follows:

    Authority: 16 U.S.C. 551; 31 U.S.C. 9701; 43 U.S.C. 1751, 1752, 
1901; E.O. 12548 (51 FR 5985).

0
4. In Sec.  222.50, revise paragraph (h) to read as follows:


Sec.  222.50  General Procedures

* * * * *
    (h) The excess and unauthorized grazing use rate will be determined 
by establishing a base value without giving consideration for those 
contributions normally made by the permittee under terms of the grazing 
permit. This rate is charged for unauthorized forage or forage in 
excess of authorized use and is separate from any penalties that may be 
assessed for a violation of a prohibition issued under 36 CFR part 261 
or from an administrative permit action. This rate will apply, but not 
be limited to the following circumstances: Excess number of livestock 
grazed; livestock grazed outside the permitted grazing season; 
livestock grazed in areas not authorized under a grazing permit and a 
bill for collection; or livestock grazed without a permit. The 
authorized officer may approve nonmonetary settlement for excess or 
unauthorized grazing use only when all of the following conditions are 
satisfied:
    (1) The excess or unauthorized use was non-willful on behalf of the 
permittee or non-permittee;
    (2) The forage consumed by the excess or unauthorized use is not 
significant;
    (3) National Forest System lands have not been damaged 
significantly by the excess or unauthorized use; and
    (4) Nonmonetary settlement is in the interest of the United States.
* * * * *

Angela Coleman,
Acting Associate Chief, USDA Forest Service.
[FR Doc. 2020-24164 Filed 10-30-20; 8:45 am]
BILLING CODE 3411-15-P