Grazing AdministrationExclusive of Alaska, 39402-39509 [06-5788]

Agencies

• DEPARTMENT OF THE INTERIOR
• Bureau of Land Management
• Part II
• Land Management Bureau

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



[[Page 39401]]

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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

[[Page 39402]]


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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/.

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

[[Page 39405]]

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

II. Changes Made Since the Proposed Rule

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

Subpart 4110 Qualifications and Preference

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

[[Page 39406]]

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

[[Page 39407]]

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

III. Record of Decision Under the National Environmental Policy Act

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

A. Decisions

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

[[Page 39408]]

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

B. Alternatives Considered

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

C. Environmentally Preferable Alternative

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

[[Page 39409]]

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

D. Decision Rationale

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

[[Page 39410]]

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