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DEPARTMENT OF THE INTERIOR

Transportation Department

CFR Citation: 43 CFR Part 4100

WO ID: [WO-220-1020-24 1A]

NOTICE: Part II

DOCUMENT ACTION: Proposed rule.

SUBJECT CATEGORY: RIN: 1004-AD42

DATES: You should submit your comments on or before February 6, 2004. The BLM may not necessarily consider comments postmarked or received by messenger or electronic mail after the above date in the decision making process on the final rule.

Public meetings will be held on dates and at times and places to be announced in subsequent Federal Register documents.

DOCUMENT SUMMARY: The Bureau of Land Management (BLM) proposes amending its regulations concerning how BLM administers livestock grazing on public lands. The proposed changes would: improve BLM's daytoday grazing management efficiency; ensure BLM documents its considerations of the social, cultural, environmental, and economic consequences of grazing changes; provide that changes in grazing use be phasedin under certain circumstances; allow BLM to share title with permittees and lessees to range improvements in certain circumstances; make clear how BLM will authorize grazing if a BLM decision affecting a grazing permit is stayed pending administrative appeal consistent with court rulings; remove provisions in the present regulations concerning conservation use grazing permits; ensure adequate time for developing and successfully implementing an appropriate management action when BLM finds that current grazing management does not meet standards and guidelines for rangeland health, and that authorized grazing is a significant factor in not achieving one or more land health standards or not conforming with guidelines for grazing administration; and revise some administrative fees. We intend these changes to improve working relationships with permittees and lessees, enhance administrative efficiency, and cost effectiveness, clarify the regulations and protect the health of rangelands.

SUMMARY: Interior Department, Land Management Bureau,

DOCUMENT BODY 2:
Grazing AdministrationExclusive of Alaska

SUPPLEMENTAL INFORMATION

I. Public Comment Procedures
II. Background
III. Why We Are Proposing This Rule
IV. SectionbySection Analysis
V. Procedural Matters
I. Public Comment Procedures

A. How Do I File Comments?

If you wish to comment, you may submit your comments by any one of several methods.
[sbull] You may mail your comments to: Director (630), Bureau of Land Management, Eastern States Office, 7450 Boston Boulevard, Springfield, Virginia, 22153.
[sbull] You may deliver comments to 1620 L Street NW., Suite 401, Washington, DC 20036.
[sbull] You may comment via the Internet by accessing our automated commenting system located at http://www.blm.gov/nhp/news/regulatory/index.htm and following the instructions there. [sbull] You may comment via email at WOComment@blm.gov.

Please make your comments on the proposed rule as specific as possible, confine them to issues pertinent to the proposed rule, and explain the reason for any changes you recommend. Where possible, your comments should reference the specific section or paragraph of the proposal that you are addressing.

The Department of the Interior may not necessarily consider or include in the Administrative Record for the final rule comments that we receive after the close of the comment period (see DATES) or comments delivered to an address other than those listed above (see ADDRESSES).

B. May I Review Comments Others Submit?

BLM intends to post all comments on the Internet. If you are requesting that your comment remain confidential, do not send us your comment at the Internet or email address because we immediately post all comments we receive on the Internet. Also, comments, including names and street addresses of respondents, will be available for public review at the address listed under ADDRESSES: Personal or messenger delivery'' during regular business hours (7:45 a.m. to 4:15 p.m.), Monday through Friday, except holidays.

Individual respondents may request confidentiality, which we will honor to the extent allowable by law. If you wish to withhold your name or address, except for the city or town, you must state this prominently at the beginning of your comment. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety. II. Background

The regulations on livestock grazing provide the framework for a public land use that has its roots in the settlement of West. The tradition of orderly use of public range in conjunction with private lands was recognized in law with the passage of the Taylor Grazing Act (TGA) in the 1930s, and again in 1976 with the Federal Land Policy and Management Act. The intent of the regulations has always been for the agency to consult and cooperate with the ranchers, private landowners, and other users of the public lands. Our shared purpose must be to sustain the open space, habitat, and watershed values that the public and private lands together can offer.

Providing for livestock grazing is part of the BLM mission to sustain the health, diversity, and productivity of public lands. In part because of its long history, public land grazing is woven into the landscapes and cultures of the rural West, and contributes valuable landscape and culture elements. Our challenge is to establish a framework that helps us accomplish our shared stewardship purpose in a manner that works well in the social and economic context of affected communities.

The ranching families of livestock permittees live and work in the heart of the Western rural landscapes. Their relationship with BLM needs to be more than regulatory if we are to engage in conservation of entire landscapes. Our goals must be to establish simple and [[Page 68453]]
practical ways for permittees, lessees, affected state and local officials, and the interested public to engage with BLM in partnerships that will leave improved open space, watershed, and habitat conditions to the next generation.

Without careful consideration of policy decisions affecting ranching, conversion of this rural West to something different is entirely possible. This conversion is frequently in evidence along the expanding urban interfaces of the West: development of ranchland into subdivisions, changes in water use and watershed characteristics, and changes in fire frequency and effects. Some of these changes are necessary as populations grow and shift, but also necessary is retaining large tracts of the rural West. A proper regulatory framework for managing grazing use can contribute to maintaining Western landscapes.

Whenever BLM addresses changes in regulations, we engage in a public dialogue to ensure all points of view are considered. The changes proposed in this rule seek to strike a balance among competing goals, and to keep administrative processes as simple, understandable, and flexible as possible. Meaningful, positive, and sustainable change on the rangelands of the West can best be accomplished through cooperation.

The proposed amendments of the grazing regulations were developed using three primary concepts:
(1) Improving cooperation with all interested persons, especially with directly affected permittees and landowners;
(2) Promoting practical mechanisms for assessing change in rangelands and protecting rangelands by increasing monitoring activities; and
(3) Enhancing administrative efficiency and effectiveness, including addressing legal issues that need clarification.

Applying these three concepts should strengthen the regulations and promote communication oriented toward seeking agreement and working together. Together we can gather more and better information on observed trends in the vegetation communities of the West. We can resolve some legal matters that have been barriers to meaningful dialogue about the issues we need to address. And we can sharpen the focus on the issues that truly need our attention as we seek to ensure proper grazing management as a part of conserving the rural landscapes of the West.

BLM administers livestock grazing on BLM lands within the continental United States under the regulations found at 43 CFR 4100. Statutory authorities supporting these regulations include the following:

1. The Taylor Grazing Act (TGA) as amended (43 U.S.C. 315, 315a through 315r);

2. The Federal Land Policy and Management Act (FLPMA) (43 U.S.C. 1701 et seq.) as amended by the Public Rangelands Improvement Act (PRIA) (43 U.S.C. 1901 et seq.);

3. Section 4 of the Oregon and California Railroad Lands Act (43 U.S.C. 1181d);

4. Executive orders that transfer land acquired under the Bankhead Jones Farm Tenant Act (7 U.S.C. 1012) to the Secretary and authorize administration under TGA; and

5. Public land orders, executive orders and agreements authorizing the Secretary to administer livestock grazing on specified lands under TGA or on other lands as specified.

BLM land use plans guide and direct public lands resource management under the multipleuse mandate of the Federal Land Policy and Management Act of 1976. Land use plans specify lands that are available for livestock grazing and the parameters under which grazing is to occur. BLM issues grazing permits or leases for available grazing lands. Grazing permits and leases specify the portion of the landscape BLM authorizes to the permittee or lessee for grazing (i.e., one or more allotments) and establish the terms and conditions of grazing use. Terms and conditions include, at a minimum, the number and class of livestock, when and where they are allowed to graze, and for how long. Grazing use must conform to any applicable allotment management plans, the terms and conditions of the permit or lease, land use plan decisions, and the grazing regulations.

Since the first set of grazing regulations was issued after passage of the TGA in 1934, they have been periodically amended and updated. The last major revision effort was called ``Rangeland Reform '94''. In February 1995, BLM published comprehensive changes to the grazing regulations and put them into effect in August 1995. Changes made to the rules in 1995 include the following:

1. Revised the term ``grazing preference'' to mean a priority position against other applicants for receiving a grazing permit, rather than a specified amount of public land forage apportioned and attached to a base property owned or controlled by a permittee or lessee, and added the term ``permitted use'' to describe forage use amounts authorized by grazing permits or leases;

2. Removed the requirement that one must be engaged in the livestock business to qualify for grazing use on public lands;

3. Required applicants for a new or renewed grazing permit to have a satisfactory record of performance;

4. Provided that BLM could issue a conservation use permit to authorize permittees not to graze their permitted allotments;

5. Limited authorized temporary nonuse to 3 years;

6. Required grazing fee surcharges for permittees who do not own the cattle that graze under their permits;

7. Provided that the United States holds 100 percent of the vested title to permanent range improvements, constructed under cooperative agreements, rather than proportionately sharing title with the cooperators;

8. Required livestock operators and the BLM to use cooperative agreements to authorize new permanent water developments, instead of allowing some water developments to be authorized under range improvement permits;

9. Provided that after August 21, 1995, the United States, if allowed by state water laws, would acquire livestock water rights on public lands;

10. Authorized BLM to approve nonmonetary settlement of non willful grazing trespass under certain circumstances;

11. Expanded the list of prohibited acts applicable to grazing activities;

12. Established Fundamentals of Rangeland Health; and

13. Created a process for developing and applying state or regional standards for land health and guidelines for livestock grazing as a yardstick for grazing management performance.

The Public Lands Council sought judicial review with respect to a number of these provisions. The court upheld all provisions except conservation use (see 4, above) (Public Lands Council v. Babbitt, 929 F.Supp. 1436 (D. Wyo. 1996), rev'd in part and aff'd in part, 167 F.3d 1287 (10th Cir. 1999), aff'd, 529 U.S. 728 (2000)).

III. Why We Are Proposing This Rule

The current regulations, issued in 1995, require amending to comply with court decisions, improve working relationships with permittees and lessees, enhance administrative procedures and business practices, and promote conservation of public lands.

BLM published an Advance Notice of Proposed Rulemaking (ANPR) and Notice of Intent (NOI) to Prepare an Environmental Impact Statement (EIS) in the Federal Register on March 3, 2003, (68 FR 996466 and 10030
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10032). These notices requested public comment and input to assist BLM with the scoping process for this proposed rule and the EIS. The comment period on the ANPR and the NOI ended on May 2, 2003.

During the scoping process, BLM held four public meetings to elicit comments and suggestions for the proposed rule and development of the draft environmental impact statement. The meetings were held during March 2003 in Albuquerque, New Mexico; Reno, Nevada; Billings, Montana; and Washington, DC.

We received approximately 8,300 comments on the ANPR and the NOI. The majority of these were varying types of form letters. In response to the ANPR, the majority of commenters opposed allowing livestock operators to temporarily lock gates on public lands in order to protect private property in specific limited situations. We have dropped this proposal from this proposed rule. Many commenters also opposed making any changes to the 1995 grazing regulations and several questioned why BLM was proposing amendments to the grazing regulations so soon after the 1995 changes. Some members of the ranching industry commented that they supported allowing categorical exclusions for routine activities during National Environmental Policy Act (NEPA) compliance; however, this is outside the scope of the rulemaking and is not addressed in today's proposed rule. Many commenters urged BLM to consider increasing monitoring efforts on grazing allotments. Some commenters recommended raising the grazing fees to reflect current market values for livestock. BLM is not addressing grazing fees in today's proposed rule.

We will distribute the Draft EIS (DEIS) on approximately December 19, 2003. Copies will be available on the Internet at http://www.blm.gov/grazing , and at the Department of the Interior Library, C
Street Lobby, 1849 C Street, NW, Washington, DC 20240. Copies of the DEIS will also be available at BLM State Offices. BLM will publish a Notice of Availability of the DEIS in a separate publication in the Federal Register. The DEIS examines the impact of the proposed regulatory changes and alternatives for improving the management of the Nation's public rangelands.

This proposed rule would make changes in several sections of BLM's existing regulations, including revising and creating definitions for key terms pertinent to the grazing administration program. Such changes would include modifying the public participation requirements relating to some daytoday grazing management matters, and removing provisions authorizing conservation use permits to comply with a Federal Court decision.

The 1995 rule greatly expanded the list of situations in which BLM solicits public comment on pending grazing management decisions. This has led to BLM focusing scarce staff resources and time primarily on managing the public participation process, including organizing and updating mailing lists and handling mailings, rather than on conducting necessary daytoday grazing management work such as monitoring resource conditions. BLM proposes to retain the interested public consultation requirements for the following specific BLM actions:

1. Apportioning additional forage on BLM managed lands;

2. Development or modification of a grazing activity plan and other BLM land use plans;

3. Planning of the range development or improvement program; and

4. Reviewing and commenting on grazing management evaluation reports.

Also retained in the regulations will be the requirement that BLM provide the interested public with copies of proposed and final grazing decisions and allow them respectively to protest and appeal such grazing decisions.

Although this proposed rule would remove the requirement that BLM consult with the interested public about the following administrative daytoday actions, BLM could still consult voluntarily on these matters before:

1. Adjusting allotment boundaries,

2. Changing grazing preference,

3. Issuing emergency closures,

4. Renewing or issuing a grazing permit or lease,

5. Modifying permits and leases, or

6. Issuing temporary and nonrenewable grazing permits.

BLM may also consult with permittees and lessees, state and local officials, and the interested public on any other matter where the authorized officer finds that such consultation would facilitate management of grazing on the public lands.

This change would require consultation with the interested public where such input would be of the greatest value, such as when deciding vegetation management objectives in an allotment management plan, or preparing reports evaluating range conditions. BLM in cooperation with the grazing operator, would retain the discretion to determine and implement the most appropriate ontheground management actions to achieve the objectives and/or respond to the conditions. BLM values productive consultation with the interested public. However, BLM needs some flexibility in order to take responsive, timely, and efficient management action without being required to first undertake mandatory consultation.

We received comments asking BLM to remove the term ``interested public'' from the regulations and replace the term with ``affected interests'' as it appeared prior to the 1995 grazing regulation changes. Commenters stated that the involvement of ``interested public'' is more appropriate for the broader land use plan process and that increased participation from the interested public in daytoday grazing management matters created more work for BLM and resulted in substantial programrelated backlogs. As discussed above, our proposal attempts to address these issues through a change to the definition and modifications in requirements to consult with the interested public.

In order to comply with the 10th Circuit Court of Appeals decision in Public Lands Council v. Babbitt, 929 F.Supp. 1436 (D. Wyo. 1996), rev'd in part and aff'd in part, 167 F.3d 1287 (10th Cir. 1999), aff'd, 529 U.S. 728 (2000) the proposed rule would remove language from the 1995 regulations that allowed BLM to issue conservation use permits. The court ruled that the TGA does not authorize BLM to grant conservation use permits.

BLM issues grazing permits and leases to authorize livestock grazing on public lands. In contrast, conservation use permits allowed a permittee to elect not to graze allotments for the duration of the permit, which is typically 10 years. The TGA requires BLM to issue a grazing permit expecting a permittee or lessee to use it to graze livestock. (167 F.3d at 13071308). If the permittee or lessee does not plan to graze livestock, BLM can cancel the permit and issue one for that allotment to someone who will use it for its intended purpose. There are circumstances, however, where it is desirable to allow the land to be rested from grazing to protect or improve the condition of resources or to allow relatively short periods of nonuse for the personal or business needs of the operator.

The Tenth Circuit Court's decision in Public Lands Council v. Babbitt affects another regulatory provision related to ``not grazing under a permit.'' BLM can authorize, on an annual basis, permittees and lessees to graze less than what is provided for in their permit, including not grazing at all. BLM calls
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this practice ``authorized temporary nonuse'' and can allow it for purposes of conservation and protection of the public lands, or for reasons associated with business or personal needs of the permittee. The current regulation limits authorized temporary nonuse to 3 consecutive years, after which the permittees must graze as much as they are authorized in their permit or risk losing the unused portion.

The 3 consecutive year temporary nonuse limitation rule was intended to work in conjunction with the regulation that provided for conservation use permits. For example, if the permittee wanted authorized temporary nonuse for more than 3 consecutive years, and BLM agreed that continuing not to graze the allotment(s) was necessary to protect or enhance resources, BLM could replace his ``regular'' permit with a conservation use permit. However, because of the 10th Circuit Court decision, we no longer have that option, and BLM is limited to issuing ``regular'' permits only. The current regulations limit authorized temporary nonuse to 3 consecutive years. Therefore, BLM must require permit holders to use the grazing permit at the end of the 3 years even if both the permittee and BLM wish to continue the nonuse for resource stewardship purposes. BLM proposes not to require grazing use of a permit when both the BLM and permittee agree that temporary nonuse is needed for resource stewardship reasons. Although we propose to remove the 3consecutiveyear limitation on authorized nonuse if the purpose of the nonuse is for resource stewardship reasons, we realize that some may wish to acquire a permit and not use it indefinitely, despite the 10th Circuit Court's decision that BLM cannot issue grazing permits not to graze. Where land use plans provide that an acceptable use of the public lands is domestic livestock grazing, then BLM will manage those lands for grazing in accordance with the land use plan.

Failing to ``make substantial grazing use as authorized for two consecutive fee years'' is prohibited under current grazing regulations. BLM does not propose to amend this provision in this rule. BLM may deny nonuse of a permit if the permittee cannot justify that nonuse is for resource stewardship or personal or business reasons. If BLM denies nonuse, and the permittee does not graze livestock as allowed under the permit for two years in a row, the permit or portion of the permit that is not used is subject to cancellation and would be available for awarding to another applicant. (These same principles pertain to leases.) The changes to nonuse provisions that BLM is proposing today would provide that BLM could authorize nonuse for no longer than one year at a time, but could repeat such annual authorizations for more than 3 consecutive years.

We considered many of the substantive issues that were raised during the scoping period and have incorporated several of these as alternatives in the draft EIS. We did not address, however, some of the issues that commenters raised because they are either beyond the scope of the document, did not meet the basic purposes of these proposed changes to the regulations, or BLM decided we could better address the issues through policy.

The following are issues we considered but do not address in this proposed rule:
[sbull] Increasing grazing fees and restructuring grazing based on market demand are outside the scope of this proposed rule.
[sbull] Reestablishing BLM grazing advisory boards to provide local advice and recommendations to BLM on grazing issues is not addressed because BLM grazing advisory boards were ``sunset'' on December 31, 1985, by FLPMA. This proposed rulemaking, however, would provide that BLM cooperate with state, county or locally established grazing boards in reviewing range improvements and allotment management plans on public lands. This review would supplement the counsel of Resource Advisory Councils that BLM established in 1995 to advise BLM and recommend strategies for managing public lands under our multipleuse mandate.
[sbull] Modifying management of wild horses and burros or making any changes to The Wild Horse and Burro Act or its implementing regulations are outside the authority and scope of this proposed rule. Issues involving allocation of forage are addressed in land use plans. [sbull] Counting 7 sheep, rather than the current 5, as the equivalent of one animal unit for the purposes of calculating grazing fee billings are not addressed because matters involving the grazing fee are outside the scope of this proposed rule.
[sbull] Establishing and managing Reserve Common Allotments is not addressed in this proposed rule. In the ANPR, BLM stated that we were considering proposing provisions to define, establish a regulatory framework, and otherwise support the creation of Reserve Common Allotments. BLM has decided not to proceed with developing Reserve Common Allotments at this time. During BLM's public scoping period many commenters expressed concern about adding special provisions for Reserve Common Allotments in the grazing regulations. Many commenters said they did not think such regulatory provisions were warranted. Ranching interests indicated they would rather have ``normal'' allotments while environmental interests questioned whether this would be the best use of the land. After considering the reception to this concept, BLM determined it was not in the public interest to proceed with this provision through regulations. BLM will continue to examine the concept of forage reserves through policymaking processes. [sbull] Removing the grazing fee surcharge is not addressed in this proposed rule. The 1995 regulations added a grazing fee surcharge to address the concerns raised by the General Accounting Office and Office of the Inspector General regarding the potential for rancher ``windfall profits'' arising from BLM's practice of allowing for the subleasing of public land grazing privileges. Some BLM grazing permittees enter pasturing agreements allowing them to take temporary control of a third party's livestock and graze them under their permit or lease. The permittee pays the federal grazing fee and charges the third party an amount negotiated between them for the forage and care of the livestock. BLM assesses a fee surcharge in this circumstance that equals 35 percent of the difference between the current Federal grazing fee and private grazing land lease rates with one exception. BLM does not assess the surcharge when the livestock that are grazed under the permit or lease under a pasturing agreement belong to children of the permittee or lessee under certain circumstances set out under section 4130.7(f). BLM is not proposing to alter the existing surcharges for the following reasons:

1. BLM continues to believe that the surcharge is an equitable manner in which to address the issue of potential windfall profits to BLM permittees and lessees who choose to enter into pasturing agreements, and

2. BLM does not want to open issues related to grazing fees at this time.
[sbull] Assigning burden of proof to the BLM for appeals is not addressed in this proposed rule. BLM considered including a provision in the proposed rule requiring the BLM to assume the burden of proof for all appeals before the Office of Hearings and Appeals. The burden of proof has been clarified by the Supreme Court to mean the ``burden of persuasion'' which refers to ``the notion that if evidence is evenly balanced, the
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party who bears the burden of persuasion must lose.'' (Director, Office of Workers' Compensation Programs, Department of Labor v. Greenwich Collieries, 512 U.S. 267, 272 (1994)). Often, the burden of proof had been confused with the ``burden of production,'' which refers to a party's obligation to come forward with evidence to support its claim. The burden of proving a fact remains where it started, but once the party with this burden establishes a prima facie case, the burden to produce evidence shifts. The burden of persuasion, on the other hand, does not shift except in the case of affirmative defenses. Decisions of the Interior Board of Land Appeals (IBLA) hold that a party appealing a BLM decision has the burden of showing the error in the agency's decision. If, for example, the agency denies a permit or lease to a new grazing applicant, that applicant would be expected to point out the error in BLM's decision. Because each case must be analyzed on its own facts, BLM is not proposing to change our regulations to assign the burden of proof for all appeals.
[sbull] Changing the definition of monitoring and the process for conducting monitoring is not addressed in this proposed rule. Few comments directly addressed the definition of ``monitoring'' and those we did receive did not recommend any substantive changes in the definition. Therefore we are not proposing changes to the definition of monitoring. Many comments contained recommendations on how BLM should conduct monitoring. We received many comments from the livestock industry, and environmental and conservation groups, asking BLM to increase monitoring efforts on public lands. BLM considered including new regulatory language regarding monitoring that would have contained explicit direction on the development of allotmentspecific resource management objectives and short and long term monitoring programs in consultation with the permittee or lessee. The current regulations, however, already allow BLM to develop resource management objectives and monitoring plans as part of its allotment management plans. As a result, we determined that establishing monitoring methodologies and working with permittees and lessees in collecting and interpreting data and developing monitoring reports are more appropriately handled through BLM's own policy guidance in Manuals and Handbooks. Therefore, BLM has decided not to incorporate details on how to monitor in the proposed rule. We have, however, added a requirement for monitoring in making determinations on rangeland health.
[sbull] Requiring permittees or lessees to submit an application for renewal of their permit or lease when their permits or leases expire is not explicitly addressed in the current regulations nor incorporated in the proposed regulations. We are especially interested in public comment on this issue.
[sbull] Adding another opportunity for administrative remedy by allowing a protesting party to appeal a BLM field office decision to the BLM State Director was recommended by several commenters during scoping. Such a provision would allow the BLM State Director to stay a decision pending further review. BLM determined it was not advisable to include this provision in the proposed rule. Such authority could cause the appeals process to become too cumbersome and result in more delays in the decisionmaking process.
[sbull] Providing for permittees and lessees to have control of water developments authorized under a range improvement permit was recommended by commenters during scoping. The current regulations do not allow for water developments to be authorized under a range improvement permit. Other commenters suggested that the rule should propose that BLM allow the permittee or lessee to enter into a Memorandum of Understanding with the BLM allowing the improvements to be used other than by livestock owned or controlled by the permit holder. BLM does not believe these regulatory changes are necessary and therefore will not address them in this proposed rule. We believe we can better address these issues in BLM policy and guidance. [sbull] Establishing criteria for BLM's use of full force and effect decision authority was recommended by some commenters during scoping. BLM believes that full force and effect decisions are fact specific, so that it would be impossible to establish criteria to address each conceivable new decision. We disagree that developing criteria is necessarily helpful or relevant to the decision to issue a full force and effect decision to protect resources.
[sbull] Allowing for exchange of use agreements across allotments was recommended during scoping. Under the existing regulations, an exchangeofuse situation occurs where the permittee owns or controls unfenced private lands within the allotment where he grazes or wishes to graze. The permittee may request to graze additional livestock on the allotment to reflect the amount of forage on the private land. If BLM authorizes the additional grazing, all the authorized livestock may graze anywhere within the allotment, and BLM will not charge grazing fees for the extra livestock. BLM received comments requesting that BLM expand this authority to accommodate a transaction called ``trade of use'' by removing the requirement that private lands in the exchange ofuse situation be located in the same allotment being permitted for grazing. This kind of case might arise in the situation where one permittee or lessee owns or controls unfenced intermingled private lands that are not within his allotment, but rather, within a second permittee's allotment.

The first permittee cannot derive economic gain from the grazing use made on his private lands by the second permittee, unless either (1) The first permittee acts to control use of his own land, by means of fencing or through sale of the land or assignment of the land lease for a consideration to the second permittee; or
(2) BLM manages the second permittee's grazing on the first permittee's private land, which BLM currently does not have regulatory authority to do.

A commenter urged that BLM facilitate the ``tradeofuse'' between these permittees by collecting a grazing fee from the second permittee for grazing use of lands owned by the first permittee but located in the second permittee's allotment, and crediting the fees collected from the second permittee for these lands to the first permittee's grazing fee billing. BLM believes that this type of arrangement is best handled by private arrangement between the permittees, but we encourage additional comments as to whether BLM should set up a separate process for such ``trade of use'' arrangements, or act as a broker between grazers on such transactions affecting private lands, perhaps for a service charge.
[sbull] Allowing BLM to have unrestricted discretion to determine circumstances that would warrant nonmonetary settlement of a non willful grazing trespass was recommended by a commenter during scoping. The current regulations identify the following four conditionsall of which must be satisfied before BLM can approve a nonmonetary settlement for nonwillful unauthorized livestock use:

1. Evidence that unauthorized use occurred through no fault of the operator.

2. The forage used was insignificant.

3. Public lands have not been not been damaged.

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4. Nonmonetary settlement is in the best interest of the United States.

We believe this continues to be a reasonable approach, and therefore BLM has decided not to change this provision.
[sbull] Removing the requirement for Secretarial approval of amendments to regional standards for healthy rangelands was not addressed in this proposed rule. BLM received a comment urging that we revise the process for approving standards for rangeland health to allow approval of revisions to the standards by BLM State Directors. BLM believes that the requirement for Secretarial approval of standards that BLM State Directors develop ensures that the basic components of rangeland health are reflected in the regionally developed standards. We are not proposing any changes to the applicable provisions of the current regulations.
[sbull] Allowing grazing operators, when authorized by BLM, to temporarily lock gates on public lands when necessary to protect private property or livestock was initially considered for incorporation in this proposed rule. Comments during the scoping were nearly unanimously in opposition to this suggestion. This proposed rule does not include this provision.
[sbull] Using competitive bidding for assigning permits and leases in place of the current system for allocating grazing preference, assigning grazing permits and the present grazing fee formula was recommended by several commenters. This recommendation would require legislative action and is therefore beyond the scope of this proposed rule.
[sbull] Requiring the posting of a bond before filing an appeal was recommended by several commenters. BLM considered the implications and potential challenges to such a provision, and determined that such a provision would burden the general public as well as permittees and lessees. Therefore, it is not included in the proposed rule. [sbull] Moving the general requirements in section 4180 related to the fundamentals of rangeland health and public land health standards and guidelines to BLM's planning regulations at 43 CFR 1610 was recommended during scoping. BLM did not consider such an expansion of the scope of this rulemaking appropriate at this time, and therefore it is not included in the proposed rule.

Whenever BLM proposes changes to these regulations, we are continuing a public dialogue. These proposed changes seek to keep administrative processes as simple, understandable, and flexible as possible.

When we developed proposed changes to the grazing regulations, we considered whether each specific change facilitates any of the following:

1. Promoting cooperation, especially with directly affected permittees and landowners;

2. Promoting practical mechanisms for protecting rangeland health; and

3. Improving administrative efficiency.

By incorporating these criteria, BLM can improve the regulations while creating a climate for communication and cooperation. Working together, BLM, and the public we serve, can obtain better information about observed trends in the vegetative communities of the West. BLM can improve some of the administrative processes so that we can sharpen our focus on the issues that are truly in need of attention as we seek to conserve the rural landscapes of the West.
IV. SectionbySection Analysis

Rules of Construction: Words and Phrases

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

Section 4100.02 Objectives

The proposed rule would remove reference to 43 CFR part 1720, subpart 1725, to reflect changes made to the regulations in 1994 (59 F.R. 29206). Today's proposal acknowledges that the Public Rangelands Improvement Act (PRIA) contributes to the objectives of the regulations. These are technical and editorial corrections. Section 4100.03 Authority

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

Section 4100.05 Definitions

During the scoping period, BLM received public comments addressing specific definitions. Several commenters asked BLM to keep all current terms consistent with their use, definition, and intent in the TGA. The following describes the proposed changes in definitions and the rationale for each change.

Active use: BLM proposes amending this definition to make clear that the term refers to a forage amount based on the carrying capacity of, and resource conditions in, an allotment. The term does not refer to forage that had been allocated in the past but which BLM has determined is no longer present. We now consider such forage to be in suspension, not in active use. The current definition of ``active use'' includes ``current authorized use including livestock grazing and conservation use.'' BLM must remove conservation use from the definition because of the 1999 10th Circuit Court decision in Public Lands Council v. Babbitt.

The 1995 final rules defined conservation use as ``authorized active use,'' in contrast to ``nonuse'' and ``suspended use'' even though the term conservation use did, by definition, exclude livestock grazing. The 1995 definition used the term livestock grazing to distinguish between ``active'' authorized grazing use and ``active'' authorized conservation use. Removing conservation use from this definition eliminates the need for this distinction. We propose that the amended definition of active use refer to that portion of grazing preference (see proposed definition, this section) that is now available for livestock grazing use based on the known livestock carrying capacity of the rangeland and the resource conditions in an allotment under a permit or lease. The definition would make it plain that ``suspended use'' is not active use.

Conservation use: The proposed rule would remove the term conservation use, from the definition of ``active use,'' and anywhere else it appears in the existing regulations, in keeping with the 10th Circuit Court decision discussed above. Removing the term conservation use includes revising the definitions of grazing lease and grazing permit to remove all references to conservation use.

Grazing lease: In addition to removing conservation use, BLM proposes editorial changes to this definition to make it easier to read. These changes will not substantively change the current regulations. Several commenters stated that the original meaning of ``grazing lease'' comes from the TGA and has been subsequently changed and therefore, BLM should restore it. The definition is consistent with the TGA. We intend only to make it clear that BLM issues grazing leases to authorize grazing on lands that are not within grazing districts established under the
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TGA, and that these leases include both mandatory terms and conditions (livestock number, place of use, period of use, and amount of forage removal), and other terms and conditions of grazing use.

Grazing permit: In addition to removing conservation use, BLM proposes editorial changes in this definition to make the section easier to read. BLM intends to make it clear that BLM issues grazing permits authorizing grazing within grazing districts established under the TGA. These permits include both mandatory terms and conditions (livestock number, place of use, period of use and amount of forage removal), and other terms and conditions of grazing use. Several environmental and conservation advocacy groups said this term was adequately addressed in the last rulemaking effort and they do not think BLM is justified in changing it now. As with the term ``grazing lease,'' this change is only to clarify and standardize, not substantively change, this definition. We are not making substantive changes to this definition other than removing the term conservation use.

Grazing preference or preference: BLM is proposing to define ``grazing preference'' or ``preference'' as: ``the total number of animal unit months (AUMs) on public lands apportioned and attached to base property owned or controlled by a permittee, lessee, or an applicant for a permit or lease. Grazing preference includes active use and use held in suspension. Grazing preference holders have a superior or priority position against others for the purpose of receiving a grazing permit or lease.''

This definition is similar to the definition in the grazing regulations in 1978, which was used until the 1995 rule changes. The 1995 definition, which changed preference from a term having a quantitative meaning (number of AUMs) to a qualitative meaning (superior position), has proven to be confusing. We believe that returning to its long standing meaning will provide greater clarity throughout the regulations.

The concept of grazing preference, as we would define it in this rulemaking, includes two elements:

1. Livestock forage allocation on public lands.

2. Priority for receipt of that allocation, as determined through ownership or control of attached base property.

BLM is proposing to define grazing preference as the total number of AUMs within a grazing allotment that BLM has allocated for livestock use. This forage amount would include ``active use,'' use that is currently available, and ``suspended use,'' that is, use that had been allocated and used by the permittee or lessee, or a predecessor, but that currently is not available and therefore the subject of a BLM suspension. These apportioned forage amounts would be attached to base property. Base property, in turn, is land or water owned or controlled by a permittee, lessee, or party who holds or has applied for a permit or lease.

Ownership or control of base property gives the owner or person controlling the property a preference for receiving a grazing permit or lease authorizing grazing use to the extent of the active preference already ``attached'' to that property, and priority for receipt of forage that BLM may later determine to be available for livestock grazing to the extent of any suspended preference that may be attached to that property. Attaching or associating a public land forage allocation to or with base property provides a reliable and predictable way to connect ranch property transactions with the priority for use of the public land grazing privileges that BLM associates with that property. This has been the basis for BLM's system of tracking who has priority for receipt of public land grazing privileges since the enactment of the TGA.

The ranch property transaction alone, however, does not provide absolute assurance of receiving the privileges, for two reasons: (1) TGA provides that only certain parties qualify for grazing use on public lands. Therefore, if an unqualified party acquires a base property, BLM would not issue the party a term grazing permit or lease, regardless of the preference for public land grazing use associated with the base property that the party acquired; and
(2) The forage amount available for livestock grazing use on public lands can fluctuate because of changed resource conditions or changed administrative or management circumstances. When necessary, BLM may adjust the amount of forage available for livestock grazing. Case law has determined that BLM land use planning decisions may adjust livestock forage allocations made before enactment of the Federal Land Policy and Management Act of 1976 to change grazing use to meet objectives specified in land use plans (see, for example, Public Lands Council v. Babbitt, 529 U.S. 728, 739744 (2000)).

The 1978 definition of ``grazing preference'' was crafted to meet a specific need. PreFLPMA public land livestock forage allocations were linked to base property productivity. This means that among applicants competing for grazing privileges on public lands BLM would not grant privileges to support livestock in excess of the number that they could support on their base property during the time that their livestock were not allowed on public lands. The connection between this base property productivity, called ``commensurability,'' and the amount of grazing privileges granted on public lands was severed by the 1978 regulation change (the same change that defined, for the first time, the term ``grazing preference''). The 1978 rule provided that BLM would associate public land grazing privileges with private base properties on a prorata acreage basis, rather than on base property productivity.

This change simplified BLM's recordkeeping needs. However, the commensurability requirement served as a guidepost for fair and consistent allocation of available forage. To ensure that the record of allocation was preserved, BLM defined the term ``grazing preference.'' Attaching Federal grazing privileges to base properties has been and continues to be the foundation for adjudicating these privileges. BLM has always had the authority and discretion to adjust grazing levels on public lands. The proposed change will once again associate the term ``preference'' with an amount of allocated forage on public land.

Today's proposed change would ensure that the term ``preference'' is used consistently. For example, 43 CFR 4110.23 (4) states, regarding the transfer of preference, that ``The transferee shall file an application for a grazing permit or lease to the extent of the transferred preference * * *'' although preference is defined in the same regulations as a ``priority position,'' that is, a singular quality. One either has a priority position or one does not. It is not possible to define the ``extent'' of a ``priority position'' in terms of anything but a level or amount, and in the context of the remainder of the rule, that would mean a level or amount of forage.

Another inconsistency arises if one considers the circumstance of a parcel of base property owned by one party, giving that party a priority position (preference), which is subdivided and half sold to another party. Then, the single ``preference'' accorded the sole owner now is split into two ``preferences'' because the second party now is accorded preference due to its ownership of base property. The proposed change to this definition and
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its usage throughout the rule should provide a consistent framework for the efficient administration of the public rangelands.

Interested public: BLM proposes amending the present definition to mean an individual, group, or organization that has:

1. Submitted a written request to BLM to be provided an opportunity to be involved in the process leading to a BLM decision on the management of livestock grazing on public lands, and

2. Followed up that request by commenting on or otherwise participating in the decisionmaking process as to the management of a specific allotment if there has been an opportunity for such participation, or

3. Submitted written comments to the authorized officer regarding the management of livestock grazing on a specific allotment, as part of the process leading to a BLM decision on the management of livestock grazing on the allotment.

Permitted Use: BLM proposes removing the definition of ``permitted use'' and replacing this term wherever it occurs in the regulations with either ``grazing preference'' or ``preference,'' or ``active use'' depending on the regulatory context. ``Permitted use'' was introduced as a term in the 1995 regulations change to define an amount of forage allocated by a land use plan for livestock grazing in an allotment. It is expressed in AUMs and includes ``active use'' (which was further divided into ``livestock use'' and conservation use) and ``suspended use.'' As discussed above, BLM is proposing to return to using the term ``grazing preference'' or ``preference'' to refer to that same livestock forage allocation. Therefore, there is no need for the term ``permitted use.'' Grazing preference would have two components:

1. ``Active use,'' or use currently available on a sustained yield basis, and

2. ``Suspended use,'' or use that had been allocated and available for livestock grazing at some point in the past, but is now in suspension until BLM determines that an increased amount of forage is available on a sustained yield basis for allocation to livestock grazing.

Although the connection between land use plans and grazing preference would not be stated in the definition of ``grazing preference'' or ``preference'' as it is being proposed today, the regulatory text would reflect the relationship between ``active use'' and land use plans at Sec. Sec. 4110.22, 4110.3(a)(3), and 4110.31 and between grazing permits and leases and land use plans at Sec. 4130.2.

Suspension: BLM proposes to remove the word ``temporary'' from the current definition because the word is superfluous. The status of suspended preference is not affected.

Temporary nonuse: BLM proposes making it clear that ``temporary nonuse'' would mean that portion of active use that BLM allows a permittee or lessee not to use. The permittee or lessee must apply for temporary nonuse.
Subpart 4110Qualifications and Preference

Section 4110.1 Mandatory Qualifications

We revised this section by moving parts of paragraph (b) and all of paragraph (c), which relate to procedure as opposed to qualifications, to section 4130 and redesignating paragraph (d) as paragraph (c). Section 4110.21 Base Property

The proposed rule makes editorial changes to this section. Section 4110.22 Specifying Grazing Preference

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

Section 4110.23 Transfer of Grazing Preference

The proposed rule would make editorial changes to this section to conform the rule to the definition of ``grazing preference.'' Section 4110.24 Allotments

BLM proposes to remove the requirement that BLM consult with the interested public before making an allotment boundary adjustment because it is primarily an administrative matter that we implement by decision or agreement following a NEPA analysis of the action. BLM would provide the interested public an opportunity to comment on the action as part of the NEPA process. The interested public would also receive a copy of the proposed and final decisions, including those on allotment boundary adjustments, and would be able to protest and appeal such decisions. This change would contribute to administrative efficiency as discussed above under changes to section 4100.05, Definitions.

Section 4110.3 Changes in Grazing Preference

BLM proposes to remove the term ``permitted use'' wherever it occurs in this section and replace it with the term ``grazing preference'' for the reasons explained previously. BLM also proposes to simplify this section by dividing the existing text into two paragraphs and adding a third paragraph to clarify that our NEPA documentation addressing changes in grazing preference would include our consideration of the effects of changes in grazing preference on relevant social, economic, and cultural factors.

Generally, BLM managers routinely consider the possible effects of their decisions on these factors through the NEPA process. Public officials use the NEPA process to understand the environmental consequences of potential decisions affecting the human environment. NEPA (42 U.S.C. 4321 et seq.) requires Federal agencies to utilize a systematic, interdisciplinary approach to ensure the integrated use of the natural and social sciences and the environmental design arts in planning and in decisionmaking. In the proposed rule, BLM would analyze and, if appropriate, document the relevant social, economic and cultural effects of the proposed action. BLM is proposing the change to ensure that our managers document their consideration of relevant social, economic, and cultural factors when they comply with NEPA. Section 4110.31 Increasing Active Use

In the 1995 rule, section 4110.31 addressed ``permitted use.'' This proposed amendment addresses that portion of the livestock forage allocation that is ``active use'' as explained in the discussion of its definition. This change is necessary to link the proposed definitions of ``preference'' and ``suspended use.'' BLM proposes to remove the term ``permitted use'' from this section wherever it appears and replace it with the term ``active use'' for the reasons explained previously.

Because the regulation would affect how we regulate available forage, we are asking the public to comment on whether BLM should use the term ``available forage'' instead of ``active use.''

BLM is also asking for specific comments relating to this section to help determine whether there have been
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situations in which the ability of permittees or lessees to obtain loans was adversely affected by having some of their forage allocation suspended.

BLM also proposes to reorganize this section to describe how we would authorize increased grazing use when additional forage is available either temporarily, or on a sustained yield basis. BLM proposes to add two new paragraphs, (a) and (b), that would clarify who gets priority when we grant additional grazing use because livestock forage has become available on either a nonrenewable basis or a sustained yield basis. This change would clarify existing language and does not substantially depart from the requirements of the existing regulations.

Section 4110.32 Decreasing Active Use

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

Section 4110.33 Implementing Changes in Active Use

BLM proposes changing the title of this section to reflect that it pertains to both increases and decreases grazing use and to add language to this section to modify how BLM would implement changes in active use. This section would provide that BLM would phase in changes in active use of more than 10 per cent over a 5year period unless either the affected permittee or lessee agrees to a shorter period or the changes must be made before the end of 5 years to comply with applicable law. When possible, the 5year phasein period for changes in active use would provide time for gradual operational adjustments by grazing permittees or lessees to lessen sudden adverse economic impacts that may arise from a reduction, or to allow time to build their herd in the event of an increase. The phasein period also allows for ongoing monitoring in order to determine whether the initial decision needs to be adjusted. This 5year phase in period is similar to that specified by the regulations in effect before 1995.

BLM also proposes amending paragraphs (a) and (b) by removing the phrase ``the interested public'' from this section. Any change in active use would be preceded by reports, including NEPA documents, that analyze data that BLM would use to support the change. Under section 4130.31, BLM would provide the interested public the opportunity to comment on these reports. Under section 4160.1 BLM would provide a copy of the proposed and final grazing decisions to implement the change to the interested public. BLM will provide the interested public full opportunity for participation and comment on the action prior to actual implementation. For this reason additional consultation with the interested public regarding the actual scheduling of the change is redundant.

Section 4110.42 Decrease in Land Acreage

BLM proposes removing the term ``permitted use'' from this section and replacing it with the term ``grazing preference'' for the reasons explained previously.
Subpart 4120Grazing Management
Section 4120.2 Allotment Management Plans and Resource Activity Plans

BLM proposes to revise paragraph (c) for clarity only. 4120.3 Range Improvements

4120.31 Conditions for Range Improvements

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

4120.32 Cooperative Range Improvement Agreements

BLM proposes to revise paragraph (b) to provide that, subject to valid existing rights, cooperators and the United States would share title to permanent structural range improvements constructed under cooperative range improvement agreements on public lands. Such structural improvements include wells, pipelines, or fences constructed on BLM managed public lands. BLM is proposing to revise the regulations to allow contributors to share title to range improvements of public lands proportionate to the value of their contributed labor, material, or equipment to make ontheground structural improvements, subject to valid existing rights. This would return the provision on how title for improvements constructed under Cooperative Range Improvement Agreements is shared to that in place before 1995.

During scoping, BLM received comments supporting and opposing the revision. Some opponents to the revision commented that, by re instituting shared title to range improvements, BLM would be allowing private property rights on public lands. Some commenters supported the provision, stating that it gives livestock operators, who pay for and construct improvements, incentive to invest funds, time, and effort in their allotments.

The current regulations provide that the United States has title to new permanent structural range improvements. BLM has the discretion in administrating the public rangelands to determine where title to range improvements should lie. Sharing title among cooperators and the United States provides the opportunity to maintain some asset value for investments made, thereby encouraging and facilitating private investment in range improvements. Granting title to a structural improvement on public lands does not grant title to the underlying lands. Cooperative Range Improvement Agreements will continue to include provisions that protect the interests of the United States in its lands and resources and ensure BLM's management flexibility on public lands.

Section 4120.33 Range Improvement Permits

BLM must remove the term conservation use from this section to comply with the decision of the Tenth Circuit Court of Appeals. Section 4120.38 Range Improvement Fund

BLM is proposing to amend this section only to correct a misspelling.
Section 4120.39 Water Rights for the Purpose of Livestock Grazing

BLM proposes to amend this section by removing the reference date in the first sentence and the second sentence in total. This would remove the requirement that livestock water rights be acquired, perfected, maintained and administered in the name of the United States to the extent allowed by the laws of the states where the rights would be acquired. The proposed amendment would provide BLM greater flexibility in negotiating arrangements, within the scope of state processes, for construction of watering facilities in states where the United States is allowed to hold a livestock water right. In those states, BLM would continue to have the option of acquiring the water [[Page 68461]]
right as long as we do so in compliance with state water law. Section 4120.52 Cooperation with State, County, and Federal Agencies

BLM proposes amending this section by making an editorial correction and adding a new paragraph (c) to specify that BLM would add state, local, and countyestablished grazing boards to those groups we routinely cooperate with in administering laws and regulations relating to livestock, livestock diseases, and sanitation. Currently BLM's Resource Advisory Councils provide advice to BLM on the broad range of multiple use activities on public lands including grazing management. Fieldlevel range improvement and allotment management planning programs would also benefit from the additional perspective that locally established grazing advisory boards could provide.

Many states have state, county, or locally established grazing advisory boards whose function is to provide guidance on range improvements on public lands. Section 401(b)(1) of FLPMA states that a portion of the grazing fees BLM collects are set aside for range betterment. BLM is authorized to use onehalf the amount collected from the area in which the moneys were derived. BLM may direct these funds after consulting with local area user representatives, to implement on theground range rehabilitation, protection, and improvements on the lands.

Grazing interests and state and local governments expressed concern that BLM has not used state, county, and locally established grazing advisory boards effectively. They commented that these grazing advisory boards are underutilized, yet are a valuable tool for gathering local input for BLM's decisionmaking processes related to range improvements and allotment management planning. This proposed rule would require BLM to cooperate with state, county, or locally established grazing advisory boards when reviewing range improvements and allotment management plans on public lands. A requirement for BLM to cooperate with such boards would ensure a consistent communitybased decision making process throughout the BLM.
Subpart 4130Authorizing Grazing Use

Section 4130.11 Filing Applications

The existing regulations are somewhat unclear as to the circumstances under which BLM will consider an applicant for a new permit or lease not to have a satisfactory record of performance

FOR FURTHER INFORMATION CONTACT Ken Visser, Rangeland Management Specialist, Rangeland, Soils, Water and Air Group, (202) 4527743, Ted Hudson (202) 4525042 or Cynthia Ellis (202) 4525012 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 1800/8778339, 24 hours a day, seven days a week.