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Grazing Administration--Exclusive of Alaska
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: July 12, 2006 (Volume 71, Number 133)] [Rules and Regulations] [Page 39501-39509] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr12jy06-19] [[pp. 39501-39509]] Grazing Administration--Exclusive of Alaska [[Continued from page 39500]] [[Page 39501]] impact, either detrimental or beneficial, on a substantial number of small entities. BLM has prepared a Final Regulatory Flexibility Act Analysis to address the changes in this rule and has concluded that the rule will not have significant economic impact, either detrimental or beneficial, on a substantial number of small entities. This document is available for review at 1620 L Street, NW., Washington, DC 20036 and on the Internet at http://www.blm.gov/grazing.The final rule does not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency. The rule does not alter the budgetary effects of entitlements, grants, user fees, or loan programs or the rights or obligations of their recipients; nor does it raise novel legal or policy issues, except as discussed in the previous section of the preamble. Small Business Regulatory Enforcement Fairness Act This final rule is not a ``major rule'' as defined at 5 U.S.C. 804(2). The changes BLM is making in the current grazing regulations would not result in an effect on the economy of $100 million or more, in an increase in costs or prices, or in significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign- based enterprises in domestic and export markets. The changes BLM is making will clarify existing requirements and qualifications. These changes will positively affect all applicants, whether small entities or not. Unfunded Mandates Reform Act This amendment of 43 CFR part 4100 will not result in any unfunded mandate to state, local, or Tribal governments, or to the private sector, in the aggregate, of $100 million or more. The rule continues and strengthens requirements for BLM to consult with all of these governmental and other entities whenever our actions relating to livestock grazing are likely to affect them. Executive Order 12630, Governmental Actions and Interference With Constitutionally Protected Property Rights The final rule does not represent a government action capable of interfering with constitutionally-protected property rights. The relevant statutes and regulations governing grazing on Federal land and case law interpreting these statutes and regulations have consistently recognized grazing on Federal land as a revocable license and not a property interest. Therefore, the Department of the Interior has determined that the rule will not cause a taking of private property or require further discussion of takings implications under this Executive Order. One comment suggested that BLM should provide for payment to the permittee or lessee for any cuts in permit numbers at the prevailing appraised rate, in order to curtail cutting permits under the pretense of the ESA. As stated above, a grazing permit or lease authorizes a privilege or revocable license, not a property right protected under the Constitution. Executive Order 13132, Federalism The final rule will not have a substantial direct effect on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. The rule would continue and strengthen requirements for BLM to consult with all of these governmental and other entities whenever our actions relating to livestock grazing are likely to affect them. Therefore, in accordance with Executive Order 13132, BLM has determined that this final rule does not have sufficient Federalism implications to warrant preparation of a Federalism Assessment. Executive Order 13175, Consultation and Coordination With Indian Tribal Governments In the proposed rule, we included a statement that, in accordance with Executive Order 13175, we determined that the rule does not include policies that have Tribal implications. We stated that the rule expressly does not apply to, and these regulations expressly exclude, Indian lands set aside or held for the benefit of Indians from the effects of the rule. Comments challenged this determination. While BLM does not manage grazing on Indian trust land, such land can serve as base property, so that grazing management on public land for which such Indian land serves as base property could have an effect on the value of such land. Also, Indian cultural sites on public land could be affected by grazing activities and BLM management of those activities. In such circumstances, BLM consults with Tribal interests on a case-by-case basis. In recognition of these potential effects of grazing management on Indian Tribal interests, BLM contacted Tribal government representatives for input into the grazing rulemaking and Draft EIS. It began with the initiation of the public scoping process. Issues raised by Tribal governments, Tribal entities, and Native American individuals during meetings and received in letters were considered in the development of the Draft EIS and proposed rule. Once the Draft Environmental Impact Statement and proposed rule were ready for release and public review, including review by Tribal governments, over 300 Tribes west of the Mississippi River (excluding Alaska) were sent a letter soliciting their comments to the Draft EIS and proposed rule. Enclosed was a copy of the Draft EIS and proposed rule on a compact disk, as well as website information to find the document on the internet. The executive order requires any Federal policy that may have Tribal implications to be guided by three fundamental principles, namely, recognition of the United States' unique legal relationship with Indian Tribal governments, recognition of the Tribes' right to self-government, and support for Tribal sovereignty and self- determination. For clarification, this final rule does not change or have any effect on BLM's fiduciary responsibilities, the agency's Tribal consultation and coordination requirements and processes, BLM's government-to-government obligations, or the distribution of power and responsibilities between BLM and Indian Tribes. BLM will continue to analyze effects on heritage resources, at the land use planning or allotment management planning level, or on a case- by-case basis as appropriate. Besides the requirements for heritage resource inventories and/or surveys, Tribal consultation will begin as soon as possible in any case where it appears likely that the nature or location or both of the activity could affect Native American interests or concerns. BLM will give due consideration to Indian Tribal rights established by treaties, and to requests by Tribes, consistent with such rights, in the administration of grazing management and range improvement programs. Executive Order 12988, Civil Justice Reform Under Executive Order 12988, the Office of the Solicitor has determined that this final rule will not unduly burden the judicial system and that it meets the requirements of sections 3(a) and 3(b)(2) of the Order. [[Page 39502]] Paperwork Reduction Act The information collection requirements contained in Group 4100 have been approved by the OMB under 44 U.S.C. 3501 et seq. and assigned the following clearance numbers: 1004-0019 and 1004-0041. The information collected will permit BLM to determine whether to approve an application to utilize public lands for grazing or other purposes. This rule does not contain any new information collection requirements that the Office of Management and Budget (OMB) must approve under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). National Environmental Policy Act (NEPA) Under NEPA, section 102(2)(C) (42 U.S.C. 4332(2)(C)), a Federal agency must prepare an Environmental Impact Statement (EIS) when a proposed major Federal action may result in significant impacts to the quality of the human environment. BLM prepared a Final EIS dated October 2004 and made available on June 17, 2005 (70 FR 35299 and 35251), in compliance with the procedures for implementing NEPA, for these changes to the grazing regulations. On the same date, BLM released an ``Errata and Revisions'' document, making corrections in the EIS, and on March 31, 2006 (71 FR 16274 and 16302), an Addendum to the FEIS. The EIS stated that many of the proposed changes are largely administrative and are intended to improve agency administrative efficiency and effectiveness, improve consistency across BLM, or meet other non-environmental objectives, and would have little direct or indirect effect on the environment. The EIS also indicated that although most of the proposed regulatory changes have little or no adverse impacts on the human environment, some short-term adverse effects may occur because of increases in timeframes associated with several components of the rule. These include the provision for a 5- year phase-in of changes in use of more than 10 percent, the requirement that existing or new monitoring data be used to support a determination that livestock grazing significantly contributes to not meeting one or more standards or does not conform to guidelines, and the allowance of 24 months for analysis, formulation and initiation of appropriate remedial action following a determination that that livestock grazing significantly contributes to not meeting one or more standards or does not conform to guidelines. The EIS stated also, however, that implementing these changes would result in the development of better and more sustainable decisions, because determinations would be based on monitoring information. Also, the rule provides a more reasonable time (up to 24 months) following a determination for satisfying legal consultation requirements and analyzing, formulating, and beginning implementation of appropriate action to ensure progress towards standards attainment or to conform with guidelines. In the long-term, we expect that implementing these provisions will be beneficial to rangeland health. Since publication of the existing regulations in 1995, we found that some sections of the regulations resulted in unforeseen problems. As BLM continued to gain experience in implementing the regulations, we found that some of the difficulties could be resolved by minor clarifications or changes in the regulations. We refined the list of sections of the regulations that we believed would benefit from a change, and reduced the number of changes. As we worked with the public, it became clear there would be some controversy over impacts of the changes. As we continued working with the public, we expected there would be controversy over impacts of the changes. We decided early in the process to prepare an EIS because we wanted to develop the rule in a way that solicited continued public involvement and comment in a manner typical of an EIS. We believed that such an open public process would provide helpful added exposure resulting from using an EIS as the environmental document soliciting public review and comment. BLM published an Advance Notice of Proposed Rulemaking (ANPR) and Notice of Intent to Prepare an EIS (NOI) in the Federal Register on March 3, 2003 (68 FR 9964-9966 and 10030-10032). BLM's Final EIS is on file and available in the BLM Administrative Record at the address specified in the ADDRESSES section. The EIS considers the impacts of these changes to the grazing regulations. You may review the EIS and related documents via the interactive ePlanning Web site at http://www.blm.gov/grazing.