[Federal Register Volume 76, Number 140 (Thursday, July 21, 2011)]
[Notices]
[Pages 43706-43709]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-18336]


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DEPARTMENT OF THE INTERIOR

Bureau of Land Management

[LLID-931-000-L1020-0000-JP-0000252R]


Final Supplementary Rules To Require the Use of Certified 
Noxious-Weed-Free Forage and Straw on Bureau of Land Management Lands 
in the State of Idaho

AGENCY: Bureau of Land Management, Interior.

ACTION: Final supplementary rules.

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SUMMARY: The Bureau of Land Management (BLM) in Idaho is finalizing a 
supplementary rule that will require anyone using, feeding, or storing 
forage or straw on BLM-administered land in Idaho to use certified 
noxious-weed-free forage and straw. Restoration, rehabilitation, and 
stabilization projects also will be required to use weed-free straw 
bales and mulch for project work. This action is a cooperative effort 
among the BLM, the U.S. Forest Service (USFS), and the Idaho State 
Department of Agriculture (ISDA) that supports Idaho State noxious weed 
laws.

DATES: These supplementary rules are effective August 22, 2011.

ADDRESSES: You may direct inquiries by letter to Roger Rosentreter, 
Botanist, Bureau of Land Management, 1387 S. Vinnell Way, Boise, ID 
83709, or by e-mail to Roger_Rosentreter@blm.gov.

FOR FURTHER INFORMATION CONTACT: Roger Rosentreter, Botanist, Bureau of 
Land Management, 1387 S. Vinnell Way, Boise, ID 83709; telephone (208) 
373-3824; e-mail Roger_Rosentreter@blm.gov. Persons who use a 
telecommunications device for the deaf (TDD) may call the Federal 
Information Relay Service (FIRS) at 1-800-877-8339 to contact the above 
individual during normal business hours. The FIRS is available 24 hours 
a day, 7 days a week, to leave a message or question with the above 
individual. You will receive a reply during normal business hours.

SUPPLEMENTARY INFORMATION:

I. Background
II. Discussion of Public Comments
III. Discussion of the Final Supplementary Rules
IV. Procedural Matters

I. Background

    Noxious and invasive weeds are a serious problem in the Western 
United States. Noxious weeds are spreading on BLM lands at a rate of 
over 2,300 acres per day, and on all Western public lands at 
approximately 4,600 acres per day. Species such as perennial 
pepperweed, purple loosestrife, yellow starthistle, hoary cress 
(whitetop), leafy spurge, diffuse knapweed, spotted knapweed, Russian 
knapweed, Scotch thistle, Canada thistle, rush skeletonweed, and many 
others are non-native to the United States and have no natural enemies 
to keep their populations in balance. Consequently, depending on the 
circumstances (e.g., weed(s) involved, soil type, range condition, and 
climatic influences), these undesirable weeds may rapidly invade 
healthy ecosystems, displace native vegetation, reduce species 
diversity, destroy wildlife habitat, reduce forage for wild and 
domestic ungulates, weaken rehabilitation and landscape restoration 
efforts, increase soil erosion and stream sedimentation, create fire 
hazards, and/or degrade special resource values.
    To curb the spread of noxious weeds, a growing number of Western 
States have jointly developed noxious-weed-free forage certification 
standards, and in cooperation with various Federal, State, and county 
agencies, have also passed weed management laws. Idaho participates in 
a regional inspection-certification process with Oregon, Montana, 
Washington, Nevada, and Wyoming and encourages, on a voluntary basis, 
forage producers in Idaho to grow and request voluntary certification 
inspections of forage products and straw.
    Because forage products and straw containing noxious weed seed 
contribute to the spread and establishment of weed infestations, the 
USFS promulgated regulations in 1996, known as a ``Weed Free Hay 
Order,'' to address this issue. In response to that Order, the State of 
Idaho implemented a noxious-weed-free forage and straw certification 
program in 1997. Under Idaho Code, the ISDA wrote regulations in 2007 
(Title 22, chapter 24 Noxious-Weed-Free Forage and Straw Rules and 
IDAPA 02.06.31). This program, which is a cooperative effort between 
the ISDA and the USFS, was established to limit the introduction and 
spread of noxious weeds through forage and straw onto National Forest 
System lands and other lands within Idaho. The Federal Plant Protection 
Act of 2000 (7 U.S.C. 7701-7751) directs agencies to develop integrated 
management plans for noxious weeds. These supplementary rules are 
intended to complement the existing regulatory framework.
    These supplementary rules are promulgated under the authority of 
the Federal Land Policy and Management Act (FLPMA) of 1976 (43 U.S.C. 
1733(a) and 1740) and 43 CFR 8365.1-6.

[[Page 43707]]

II. Discussion of Public Comments

    The BLM Idaho State Office proposed supplementary rules in the 
Federal Register on September 21, 2010 (75 FR 57496). Public comments 
were accepted for a 60-day period ending on November 22, 2010. The BLM 
received three written comments concerning the proposed rules. All 
three comments supported the proposed supplementary rules.
    Two of the comments suggested revising proposed paragraph (4): 
``Certified noxious-weed-free compressed forage bales are identified 
with yellow binding (strapping) material with the statement `ISDA 
NWFFS' and the manufacturer's name printed in purple.'' The commenters 
suggested that the paragraph be reworded as follows: ``Certified 
noxious-weed-free compressed forage bales are identified by strapping/
binding material authorized by NAWMA [the North American Weed 
Management Association] with the same color and marking requirements on 
products certified by other NAWMA approved agencies.'' This revision is 
consistent with the use of certification identifiers required by other 
agencies, and has been included in the final supplementary rules.
    The third comment suggested that the BLM monitor livestock for what 
they have eaten during the three days before they are turned out onto 
the public lands, to address the possibility that weed seeds might pass 
through the digestive tracts of the livestock and subsequently 
germinate on the rangelands. Although there is a slight possibility of 
weed seeds surviving in this manner, BLM staff concluded that the 
resources and logistics of such monitoring would provide marginal 
benefit and would result in a significant regulatory burden for the 
agency and public. Consequently, these supplementary rules were not 
amended as suggested.

III. Discussion of the Final Supplementary Rules

    The final supplementary rules apply to BLM-administered lands in 
Idaho and provide for consistent management with National Forest System 
lands across jurisdictional boundaries. The final supplementary rules 
will be implemented by including a standard stipulation in all Special 
Recreation Permits and most other use authorizations. Livestock grazing 
permits would not need to include such a stipulation because 43 CFR 
4140.1(a)(3) already requires the permittee to secure authorization 
before supplemental feeding, maintenance feeding, and emergency feeding 
on lands administered by the BLM.
    The supplementary rules require holders of affected permits and use 
authorizations to use certified noxious-weed-free forage and straw when 
they use hay, cubes, and straw on BLM-administered public lands in 
Idaho. Affected permittees includes recreationists using pack and 
saddle stock, grazing permittees, outfitters, and contractors and 
operators who use straw or mulch for reclamation or re-seeding 
purposes. These individuals or groups are required to use certified 
noxious-weed-free forage and straw while on BLM-administered public 
lands in Idaho, unless they have a permit or letter signed by a BLM 
authorized officer specifically authorizing the otherwise-prohibited 
act, or are transporting forage across public lands from one private 
property to another private property. The BLM in Idaho allows forage 
certified by other States to be used as forage on lands administered by 
Idaho BLM offices.
    In addition, in cooperation with the USFS hay closure and the Idaho 
State Department of Agriculture (ISDA) Noxious-Weed-Free Forage and 
Straw Certification (NWFFS) program, the BLM prohibits the use of 
forage and straw that has not been certified as noxious-weed-free for 
all BLM-administered public lands within Idaho. The BLM State Office in 
Idaho, in cooperation with the ISDA, will implement a public 
information plan intended to publicize the supplementary rules and 
notify visitors and land users where they can purchase state-certified 
noxious-weed-free forage and straw.
    Paragraph (1) of the proposed supplementary rules provided for a 
60-day grace period between the effective date and enforcement of the 
supplementary rules. The BLM recognizes that immediate compliance with 
these supplementary rules might not be realistic, and has determined 
that it is appropriate to postpone enforcement of these supplementary 
rules for 30 days after the effective date of these supplementary 
rules. During that time, the BLM plans to concentrate on education and 
outreach. The proposed regulatory text referring to a grace period has 
been revised to provide for a specific enforcement date that is 30 days 
after the effective date of these supplementary rules. This revised 
language appears in the penalty provision (i.e., paragraph (7)) of 
these supplementary rules.
    These supplementary rules are in conformance with all BLM land use 
plans within Idaho. The final supplementary rules are consistent with 
and supportive of the statewide Conservation Plan for the Greater Sage-
Grouse in Idaho (Idaho Sage-Grouse Advisory Committee, 2006), which 
recommends that the use of weed-free forage on public and state lands 
be required to discourage the spread of invasive annuals and noxious 
weeds.

IV. Procedural Matters

Executive Order 12866, Regulatory Planning and Review

    These supplementary rules are not a significant regulatory action 
and are not subject to review by the Office of Management and Budget 
under Executive Order 12866. These rules will not have an annual effect 
of $100 million or more on the economy. They will not adversely affect, 
in a material way, the economy, productivity, competition, jobs, the 
environment, public health or safety, or State, local, or Tribal 
governments, or communities. These final supplementary rules will not 
create a serious inconsistency or otherwise interfere with an action 
taken or planned by another agency. The final supplementary rules do 
not materially alter the budgetary effects of entitlements, grants, 
user fees, or loan programs or the right or obligations of their 
recipients, nor do they raise novel legal or policy issues. They merely 
impose rules regarding the use of certified noxious-weed-free forage 
and straw on BLM-administered public lands in Idaho.

National Environmental Policy Act

    The BLM has prepared an environmental assessment (EA) titled 
``Implementation of Requirements for Certified Noxious-Weed-Free Forage 
and Straw On Bureau of Land Management Lands in Idaho.'' The final 
supplementary rules do not constitute a major Federal action 
significantly affecting the quality of the human environment under 
Section 102(2)(C) of the National Environmental Policy Act of 1969 
(NEPA), 42 U.S.C. 4332(2)(C). A detailed environmental impact statement 
under NEPA is not required. The BLM has placed the EA and the Finding 
of No Significant Impact on file in the BLM Administrative Record at 
the address specified in the ADDRESSES section. The BLM invites the 
public to review these documents.

Regulatory Flexibility Act

    Congress enacted the Regulatory Flexibility Act (RFA) of 1980, as 
amended, 5 U.S.C. 601-612, to ensure that Government regulations do not

[[Page 43708]]

unnecessarily or disproportionately burden small entities. The RFA 
requires a regulatory flexibility analysis if a rule would have a 
significant economic impact, either detrimental or beneficial, on a 
substantial number of small entities. The final supplementary rules are 
not specific to commercial, organizational, or governmental entities of 
any size, but instead are widely applicable rules to protect the 
natural resources and the environment on public lands. The rules would 
have no significant impact on a substantial number of entities of any 
size. Therefore, the BLM has determined under the RFA that these final 
supplementary rules do not require preparation of a regulatory 
flexibility analysis.

Small Business Regulatory Enforcement Fairness Act

    These final supplementary rules do not constitute a ``major rule'' 
as defined at 5 U.S.C. 804(2). They would not result in an annual 
effect on the economy of $100 million or more, in a major increase in 
costs or prices for consumers, individual industries, Federal, State, 
or local government agencies, or geographic regions, 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. 
They would merely impose rules regarding the use of certified noxious-
weed-free forage and straw on BLM-administered public lands in Idaho.

Unfunded Mandates Reform Act

    These final supplementary rules do not impose an unfunded mandate 
on State, local, or Tribal governments in the aggregate, or the private 
sector, of more than $100 million per year, nor do these final 
supplementary rules have a significant or unique effect on small 
governments. The final supplementary rules do not require anything of 
State, local, or Tribal governments. Therefore, the BLM is not required 
to prepare a statement containing the information required by the 
Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.).

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

    The final supplementary rules are not government action capable of 
interfering with constitutionally protected property rights. The final 
supplementary rules do not have takings implications, do not address 
property rights in any form, and do not cause the impairment of 
anyone's property rights. Therefore, the Department of the Interior has 
determined that the final supplementary rules would not cause a taking 
of private property or require further discussion of takings 
implications under this Executive Order.

Executive Order 13132, Federalism

    The final supplementary rules 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 final 
supplementary rules apply in only one State, Idaho, and do not address 
jurisdictional issues involving the Idaho State Government. Therefore, 
in accordance with Executive Order 13132, the BLM has determined that 
these final supplementary rules do not have sufficient Federalism 
implications to warrant preparation of a Federalism Assessment.

Executive Order 12988, Civil Justice Reform

    Under Executive Order 12988, the BLM Idaho State Office has 
determined that these final supplementary rules would not unduly burden 
the judicial system and that they meet the requirements of sections 
3(a) and 3(b)(2) of the Order.

Executive Order 13175, Consultation and Coordination With Indian 
TribalGovernments

    In accordance with Executive Order 13175, the proposed 
supplementary rules and EA were mailed to all Idaho Tribes for comment. 
Consultation was conducted with the Shoshone-Paiute Tribes, and no 
concerns were expressed. In addition, the BLM Idaho State Office has 
found that the final supplementary rules do not include policies that 
have tribal implications.

Executive Order 13211, Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    These final supplementary rules are not a significant energy 
action. The rules will not have an adverse effect on energy supplies, 
distribution, or use. They only address the use of certified noxious-
weed-free forage and straw on public lands and have no connection with 
energy policy.

Paperwork Reduction Act

    These final supplementary rules do not contain information 
collection requirements that the Office of Management and Budget must 
approve under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et 
seq.

Author

    The principal author of these final supplementary rules is Roger 
Rosentreter, Botanist, BLM Idaho State Office.
    For the reasons stated in the preamble and under the authorities 
for supplementary rules at 43 U.S.C. 1733(a) and 1740 and 43 CFR 
8365.1-6, the BLM Idaho State Director establishes final supplementary 
rules for public lands managed by the BLM in Idaho, to read as follows:
Supplementary Rules To Require the Use of Certified Noxious Weed-Free 
Forage on Bureau of Land Management-Administered Lands in Idaho
    (1) To prevent the spread of noxious weeds on BLM-administered 
public lands in Idaho, it is a prohibited act to feed or store forage 
or straw on BLM-administered land that has not been certified as 
noxious-weed-free. Restoration, rehabilitation, and stabilization 
projects also are required to use noxious-weed-free straw bales and 
mulch for project work.
    (2) The certification program currently includes 57 weeds that have 
been designated as noxious in Idaho under the Idaho State noxious-weed-
free standards, or certified to be free from those weeds designated in 
the North American Weed Free Forage Program list, which was developed 
by the North American Weed Management Association (NAWMA). This NAWMA 
list currently includes the 57 weeds designated noxious in Idaho and 
also includes an additional 15 invasive weeds. The BLM in Idaho allows 
forage that meets Idaho, NAWMA, or other States' standards for 
certification as noxious-weed-free. Although weeds may be added or 
removed from these various lists, the BLM recognizes this forage as 
certified noxious-weed-free as long as it has been marked indicating 
that it meets the standards for certification.
    (3) Certified noxious-weed-free hay must be identified by one of 
the following:
    (a) State certification tag attached to the bale string;
    (b) At least one strand of purple and yellow (intertwined) bale 
twine encircling the bale;
    (c) Blue and orange (intertwined) bale twine encircling the bale; 
or
    (d) Other colored twine encircling the bale that is used to 
designate certified forage.

[[Page 43709]]

    (4) Certified noxious-weed-free compressed forage bales are 
identified by strapping/binding material authorized by NAWMA with the 
same color and marking requirements on products certified by other 
NAWMA approved agencies.
    (5) Certified noxious-weed-free forage in bags is identified by a 
stamp, sticker, or printing on the bag identifying it as certified 
forage.
    (6) The following persons/activities are exempt from these 
supplementary rules:
    (a) Any person with a permit or letter signed by a BLM authorized 
officer specifically authorizing the prohibited act, such as an 
authorized livestock permittee during an emergency situation in which 
livestock must be fed uncertified forage or hay for a short period of 
time until they can be moved to safety; and
    (b) Any person transporting hay or forage across public lands from 
private property to private property.
    (7) Any person who knowingly and willfully violates the provisions 
of these supplementary rules on or after September 19, 2011 may be 
required to appear before a United States Magistrate and may be subject 
to a fine of not more than $1,000 or imprisonment of not more than 12 
months, or both, in accordance with 43 U.S.C. 1733(a) and 43 CFR 
8360.0-7.
    Such violations may also be subject to enhanced fines provided for 
by 18 U.S.C. 3571.

Steven A. Ellis,
Idaho State Director, Bureau of Land Management.
[FR Doc. 2011-18336 Filed 7-20-11; 8:45 am]
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