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Tuesday,

August 14, 2007

Part II

Department of the
Interior
Bureau of Land Management

Notice of Final Action To Adopt Revisions


to the Bureau of Land Management’s
Procedures for Managing the NEPA
Process, Chapter 11 of the Department of
the Interior’s Manual Part 516; Notice
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DEPARTMENT OF THE INTERIOR Peg Sorensen, Division of Planning and common databases and joint planning
Science Policy, at 202–452–0364. processes, meetings, investigations, and
Bureau of Land Management FOR FURTHER INFORMATION CONTACT: Peg NEPA analyses.
Sorensen, Division of Planning and Part C: Addressed consultation and
[516 DM 11; WO–210–1610 24 1A]
Science Policy, at 202–452–0364. coordination requirements.
Notice of Final Action To Adopt SUPPLEMENTARY INFORMATION: Final
Part D, sub-parts (1) & (2): Addressed
Revisions to the Bureau of Land revised NEPA procedures for the DOI public involvement requirements.
Management’s Procedures for were published in the Federal Register Eliminated the reference to ‘‘consensus-
Managing the NEPA Process, Chapter (69 FR 10866–10866, March 8, 2004), based decision-making’’ and replaced it
11 of the Department of the Interior’s and (70 FR 32840–32844, June 6, 2005). with ‘‘consensus-based management’’ to
Manual Part 516 The DOI bureau and office specific be consistent with direction provided by
procedures are published as chapters in the DOI. Inserted the DOI’s definition of
AGENCY: Bureau of Land Management, ‘‘consensus-based management’’ and
Part 516 of the Departmental Manual.
Interior. expectations regarding the process.
The 516 DM 11 addresses the BLM
ACTION: Notice of final action. policy and procedures to assure Part E: Redefined ‘‘adaptive
compliance with the spirit and intent of management’’ to match the DOI
SUMMARY: The Bureau of Land definition.
NEPA.
Management (BLM) gives notice of Part F: Clarified a training
A notice of the proposed revisions to
revised policies and procedures for requirement for the BLM employees
the BLM’s ‘‘National Environmental
implementing the National facilitating public and community
Policy Act Revised Implementing
Environmental Policy Act (NEPA), as involvement.
Procedures’’ for 516 DM 11 was
amended, Executive Order (E.O.) 11514, Part G: Clarified action limits during
published in the Federal Register (71
as amended, E.O. 12114, and Council on environmental review.
FR 4159–4167, January 25, 2006), with
Environmental Quality (CEQ) 11.5 Plan Conformance: Edited to
additional information available at
regulations implementing NEPA. These improve readability. Clarified what the
http://www.blm.gov/planning/
final implementing procedures are being Responsible Official’s options are when
news.html. A 30-day public comment
issued as Chapter 11 of the Department a proposed action does not conform to
period followed that publication.
of the Interior’s Departmental Manual an approved plan.
Consideration of the comments received
Part 516 (516 DM 11) and supersedes 11.6 Existing Documentation
resulted in the following modifications
previous implementation guidance. (Determination of NEPA Adequacy):
to the proposed revised implementing
These revisions update the procedures Edited the title to create a section
procedures.
used to implement NEPA for actions header that conforms to a standardized
11.1. Purpose: No Change.
taken in managing public lands. The 11.2. NEPA Responsibilities: Edited format. This section was rewritten to
BLM’s NEPA compliance procedures title to emphasize that there are clarify the BLM’s policy regarding the
can be found at the Department of the multiple responsibilities. use of existing documentation.
Interior (DOI) Electronic Library of Parts A–E: Edited to improve Operational information on how to
Interior Policies (ELIPS) http:// readability. conduct a Determination of NEPA
elips.doi.gov. Parts B–E: Clarified executive and Adequacy (DNA) will be provided in the
The following sections in 516 DM 11 delegated leadership responsibilities. BLM NEPA Handbook (H–1790–1).
(dated 5/27/04) are affected by this Parts E & F: Moved sub-part E(1) to a 11.7 Actions Requiring an
Federal Register notice: Purpose (11.1); new part F. Environmental Assessment (EA):
NEPA Responsibilities (11.2); External 11.3. External Applicants’ Guidance: Part A: Moved part A information to
Applicant’s Guidance (11.3); General Edited title to clarify that this section a new part D. Part A now defines the
Requirements (11.4), Parts A–G; Plan only applies to external applicants who purpose and need for an EA.
Conformance (11.5); Existing are proposing an action. Language was Part B: Inserted a new requirement to
Documentation (11.6), Parts A–E; added from the NEPA to clarify text consult 40 CFR 1508.9(b) which
Actions Requiring an Environmental within the section. outlines ‘‘discussion’’ requirements in
Assessment (11.7), Parts A–E; and Part A. General, sub-parts A(2)–(4): an EA.
Actions Eligible for Categorical Edited to improve readability. Part C: Edited to clarify and enhance
Exclusions (11.9), categories B–D and Sub-part A(3): Replaced the ‘‘State general understanding of when an EA is
G–J. New sub-parts have been added to Director’’ with ‘‘the Responsible appropriate.
the Oil, Gas and Geothermal Energy (B), Official’’ to clarify that the authorized Part D: Directs the Responsible
Forestry (C), and Rangeland activity is not limited to State Directors. Official to consider an EA if there are
Management (D) categories. Two new Part B. Regulations, preamble: Edited uncertain impacts.
categories have been added: Recreation to improve readability. Part E: This new part directs the
Management (H) and Emergency Responsible Official to prepare an
11.4. General Requirements:
Stabilization (I). Transportation category Part A–H: Revised section titles to Environmental Impact Statement (EIS) if
sub-parts G(1), (2), and (3) have been create parallel structure. Edited and it is determined that a CX or an EA is
expanded to include trails. reorganized all sections to clarify not appropriate. Removed unnecessary
DATES: Effective Date: The revised 516 requirements and improve readability. text ‘‘processed in accordance with 40
DM 11, including changes and additions Part A: Added ‘‘integrating NEPA CFR 1502.’’
to the categorical exclusions (CXs), is requirements with other environmental 11.8 Major Actions Requiring an
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effective upon the date of publication of review and consultation requirements’’ Environmental Impact Statement (EIS):
this notice in the Federal Register. (from the former part D) to reduce Part A(1): Refined the text to clarify
ADDRESSES: The BLM’s revisions to 516 paperwork and delays. criteria used to consider when
DM 11 can be accessed electronically Part B: Addressed the elimination of determining whether to prepare an EIS
via the Internet at http://elips.doi.gov. duplicate tribal, State, and local level analysis or not. Removed the
Hard copies are available by contacting government procedures, and the use of following statement: ‘‘or the impact

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analysis of an action is likely to be B. Oil, Gas, and Geothermal Energy: consistent with the U.S. Forest Service
highly controversial.’’ This edit was Sub-category (6): Removed text (FS) standards and regulations. Text that
made to clarify the criteria the BLM ‘‘including the establishment of terms defines and clarifies ‘‘a dying tree’’ was
considers when determining whether an and conditions,’’ and edited language to added for purposes of this category of
EIS level analysis is needed. more accurately describe the actions actions.
Supplementary guidance on how to covered. Sub-category (9): Modified the
determine significance when Sub-category (7): The BLM has example (a) by replacing southern pine
considering whether to prepare an EIS, decided not to finalize this proposed CX beetle with mountain pine beetle to
such as when effects should be (CX B(7)) for the category of actions represent a type of beetle that occurs in
considered ‘‘highly controversial,’’ will described as, ‘‘approving the drilling or western Oregon.
be placed in the BLM NEPA Handbook subsequent operations of a geothermal D. Rangeland Management:
(BLM H–1790–1). well within a developed field for which The National Research Council
Part B: Dropped the term a LUP and/or an environmental published Rangeland Health: New
‘‘Wilderness’’ from the list of actions document, prepared pursuant to NEPA, Methods to Classify, Inventory, and
typically requiring an EIS. This edit analyzed such drilling as within the Monitor Rangelands in 1994. The
reflects current program policy that scope of a reasonably foreseeable future concepts identified in that publication
there will no longer be proposals to activity.’’ When these actions are within were incorporated in the BLM’s grazing
designate Wilderness Areas under the scope of the previous NEPA regulations and the agency used the
Section 603 of FLPMA. Supplementary document and sufficiently analyzed term ‘‘rangeland health’’ in much of
guidance on how to implement policy therein, and that determination is their initial policy and guidance related
regarding preparation of EISs will be documented, no further NEPA analysis to implementing those grazing
placed in the BLM NEPA Handbook is required. In consultation with CEQ, regulations. Although the term
(BLM H–1790–1). the BLM has decided that more focused ‘‘rangeland health’’ was first introduced
Part C: Removed unnecessary text NEPA documents should be prepared at in the grazing regulations, the
‘‘processed in accordance with 40 CFR the outset to support subsequent ‘‘rangeland health standards’’ really
1501.4(e)(2).’’ implementation of the geothermal field apply to the condition of the land itself
development plan or utilization plan, regardless of the uses that may influence
11.9 Actions Eligible for a the health of that land. As a result, the
Categorical Exclusion: and that this practice, combined with a
DNA, would provide a more appropriate BLM has begun using the term ‘‘land
Preamble: Replaced ‘‘exceptions’’
method for streamlining the health’’ to avoid the misperception that
with ‘‘extraordinary circumstances’’ to these concepts only apply to the grazing
reflect a revision to 516 DM 2.3A(3) documentation of the evaluation of
subsequent infill well proposals than a program. For this reason, the term ‘‘land
made by the DOI in June 2005. Added health’’ is used in the description of this
a statement identifying the DOI-wide CX new CX.
Sub-category (8): The BLM has proposed CX, even though both terms
in 516 DM 2, appendix 1, available for are likely to be found within this
the BLM consideration. The BLM decided not to finalize this proposed
document or in other background
reviewed supporting data and CX. In consultation with CEQ, it was
material supporting this document. Use
conclusions of no significant effect for determined that the action of issuing a
of the term ‘‘land health’’ does not
all proposed CXs based on comments geothermal site license or operational
represent any substantive change in the
received. Identified below are revisions permit (CX B(8)) is an administrative/
original definition, concept or use of the
to final CX language based on this ministerial function subsequent to the
term ‘‘rangeland health’’ and the reader
review. Some additional information approval of a utilization plan. Approval
should view these terms as
was added to the administrative file of a utilization plan involves analysis of
interchangeable. The proposed
based on the review. In addition, the the environmental effects of
rangeland management sub-categories
BLM reviewed the proposed CXs and constructing and operating the planned
(10) and (11) are finalized with the
this final action establishing the final facility. The administrative action of
following changes:
CXs in light of CEQ’s proposed issuing the site license and permit to Sub-category (10): Lettered the bullet
guidance, ‘‘Establishing, Revising and operate does not result in additional statements, so the first bullet is criteria
Using Categorical Exclusions under the environmental effects. Therefore, the (a); moved text (bullets two & three)
National Environmental Policy Act,’’ (71 BLM will eliminate this additional ‘‘shall be conducted consistent with the
FR 54816–54820, September 19, 2006). NEPA review, as unnecessary and BLM and Departmental procedures and
The BLM believes that the redundant. applicable land and resource
establishment of the new CXs is C. Forestry: management plans (RMP);’’ from here to
consistent with CEQ’s proposed Sub-category (6): Modified the the general CX introduction to reflect
guidance. Based on discussions, review, proposed language and format to that text applies more generally and not
and to clarify the intent of the BLM, eliminate confusion about the sample only to this CX. Modified text of bullet
language has been added indicating the tree area limitation and restricted four to exclude use of this CX for
need for all proposed actions and activities. Added Lakeview District, otherwise qualifying ‘‘vegetation
activities to be, at a minimum, Klamath Falls Resource Area to the list management activities’’ in Wilderness
consistent with the DOI and the BLM of locations where this CX may be used. Study Areas and text becomes new
regulations, manuals, handbooks, The Resource Area was mistakenly left criteria (b). Modified bullet five to
policies, and applicable Land Use Plans out of the proposed limitation and is become criteria (c) and added text to
(LUP) regarding design features, Best now included because the effects are indicate that the CX cannot be used for
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Management Practices, Terms and comparable to the others previously biological treatments. Finally, added
Conditions, Conditions of Approval, listed in this section. text to define and limit the use of
and Stipulations. Sub-categories (7)–(9): Modified the temporary roads as criteria (d) and (e).
A. Fish and Wildlife: Fixed a proposed format and syntax. Text that Sub-category (11): Moved criteria (a)
typographical error in sub-category (2) defines and limits ‘‘temporary road’’ to (b) and modified the phrase ‘‘not
by replacing ‘‘value’’ with ‘‘valve.’’ building activities was added to be meeting standards solely due to factors

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other than existing livestock grazing’’ to authorized in a LUP’’ because of comment period provided insufficient
‘‘not meeting land health standards due confusion over what constitutes a travel time to review and comment on the
to factors that do not include existing management area or network. Text was BLM’s proposed revisions. The BLM
livestock grazing.’’ Changed the text to added to include a limitation that this received extensive and varied comments
clarify that the CX requires land health CX cannot be used for the establishment during the 30-day comment period.
assessments be completed prior to or issuance of Special Recreation Based on this robust response, the BLM
considering the application of the CX. Permits (SRP) for ‘‘Special Area’’ determined that it was unnecessary to
Dropped proposed criteria (b) and management (43 CFR 2932.5). The extend the public comment period.
replaced it with criteria (a) that limits requirement for Special Area SRPs and Some general comments state that the
the leases/permits eligible for the CX to the issuance of individual SRPs in BLM is using dated and inadequate
those where the lease/permit is ‘‘Special Areas’’ must be directed by scientific information to support
consistent with the use specified in the specific land use planning decisions management decisions. They
previous lease/permit, there is no and commensurate NEPA analysis. recommend that the BLM adopt a
change in the type of livestock, the I. Emergency Stabilization: This new specific process to systematically
previously authorized active use is not section was adopted as proposed with incorporate the best available science in
exceeded, and grazing does not occur the addition of text to define and limit all elements of the BLM public lands
more than 14 days earlier or later than the use of temporary roads. The section management. The BLM Science Strategy
specified on the previous lease/permit. included a requirement to treat (September 2000) discusses the role of
Sub-category (12): Dropped the temporary roads for rehabilitation. science in the BLM management of the
proposed CX based on further review of Sub-category (1)(e): Moved text ‘‘shall public lands, and articulates a
supporting data. be conducted consistent with the BLM conceptual framework for integrating
E. Realty: and the Department procedures, science into the BLM decision-making
The proposed revision of sub-category applicable land and RMPs.’’ to general process. Relevant scientific information
(16) was dropped upon further review. CX introduction to reflect that text is brought to the decision-maker’s
F. Solid Minerals: No change was applies more generally and not only to attention by members of the
proposed or made. this CX. Renumbered numbered criteria interdisciplinary team of professionals,
G. Transportation: based on the removal of this text. and through contract and in-house
Sub-categories (1), (2), and (3): The J. Other: The previous existing sub- investigations, science sharing forums,
word ‘‘existing’’ which originally was part H was moved to sub-part J and and technical reports. In addition, the
used in (1) and (2) has been eliminated adopted as proposed with one public, cooperators and partners bring
because it was potentially confusing, exception. An existing CX was scientific information forward during
and the words ‘‘and trails’’ have been mistakenly left out of the January 25, the environmental review process.
approved as proposed. 2006, Federal Register notice. The Many comments addressed matters
Sub-category (1) and (2): Replaced following existing CX will be placed in beyond the scope of the proposed
‘‘Incorporating’’ for ‘‘Placing’’ in sub- sub-part J (12): ‘‘Rendering formal revisions to the 516 DM 11. These
category (1), and added ‘‘eligible’’ to classification of lands as to their mineral included requests for the BLM to add
modify the language to clarify that only character and waterpower and water policy statements to the 516 DM 11
roads and trails meeting criteria storage values.’’ There is no change to pertaining to conformance with the
developed in a LUP are to be the language. Clean Air Act, preserving and honoring
incorporated into the transportation Appendix 11.1: The DNA Worksheet valid existing rights, and conducting
plan, or be subject to the actions appendix was deleted. Supplemental cost-benefit analyses. Some comments
specified in sub-category (2). guidance regarding the use of Existing addressed land management activities
H. Recreation Management: Documentation remains in section 11.6. that were neither proposed nor
Sub-category (1): The proposed analyzed. Some comments state that
revision of the previous Category ‘‘H. Comments on the Proposal grazing is incompatible with good land
Other’’ to ‘‘Recreation Management and The BLM received more than 72,000 stewardship. Other comments suggested
sub-category ‘‘H(5)’’ to ‘‘H(1)’’ was ‘‘comments’’ during the 30-day that the proposed changes to 516 DM 11
approved as revised. Increased the day comment period (January 25, 2006, to ‘‘denied [the public] their constitutional
and overnight use threshold to 14 February 24, 2006). A ‘‘comment’’ is a rights’’ or would ‘‘cause unrestricted
consecutive nights to be consistent with single, whole submission that may take use’’ of public lands. Responses to most
the practice of Responsible Officials the form of a letter, postcard, email, or out-of-scope comments are not
under provisions in Title 43 of the Code fax. These comments came from private provided.
of Federal Regulations (CFR) that allow citizens, elected officials, and groups Responses to Specific Comments on
such officials to set allowable length of and individuals representing Sections 11.1–11.8
stay applicable to any casual visitor businesses, private organizations, and
using public lands (See 43 CFR 8365.1– state and federal agencies. All 11.1 Purpose
2 ‘‘Occupancy and Use,’’ and 43 CFR comments received were considered in Comment: Some comments ask how
8365.1–6 ‘‘Supplementary Rules’’). This preparing this final action notice. to access 516 DM 11 and the DOI’s
change has also been made to provide Public comment on the proposed Environmental Statement Memoranda
consistency with the typical length of revisions addressed a wide range of (ESM).
stay for any casual visitor using public topics. Many comments support one or Response: The BLM provided the Web
lands (43 CFR 8364). Changed wording more of the proposed revisions or favor site address to access procedures (516
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from ‘‘contiguous acres’’ to ‘‘staging area broadening the scope of the revision, DM 11) that are being replaced by this
acres’’ to better define the limits on area while many others oppose one or more Federal Register notice in the Summary
of impact. Replaced ‘‘travel management of the proposed revisions or recommend portion of 71 FR 4159–4167, January 25,
areas or networks that are designated in more narrowly limiting the qualifying 2006. The proposed changes to these
an approved LUP’’ with ‘‘recreational criteria for a particular CX. Some procedures were published in full in the
travel along roads, trails, or in areas comments state that the 30-day same Federal Register notice and were

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posted on the DOI, ELIPS Web site in procedures specified in the NEPA, E.O.s with all applicable laws and regulations
the Departmental Manual chapters at 11514 and 12114, and CEQ regulations. including the Data Quality Act.
http://elips.doi.gov. The DOI’s ESMs can Federal decision-makers have discretion Comment: Some comments ask the
be accessed through the DOI’s Web site as to how they enable public BLM to prevent excessive data
at http://www.doi.gov/oepc via the involvement because of the broad range collection during the NEPA analysis.
descriptions in the left-hand column. and variety of potential proposed Response: The BLM uses best
actions and public interests at stake. available data or collects new data
11.3 External Applicants’ Guidance Comment: Some comments state that appropriate to the level of the NEPA
Comment: Some comments ask for the BLM should revise 516 DM 11 to analysis needed to make an informed
information to guide applicants require public notice about ‘‘decision decision regarding the proposed action.
interested in the BLM program documents’’ and Findings of No The provisions described in 516 DM
regulations. Significant Impacts (FONSIs) 11.4(A–C) are intended to aid in this
Response: The purpose of this section statements. effort, provided that the data and
is to provide guidance to external Response: The CEQ regulations analysis compiled by other permitting
parties making applications to the BLM. implementing the NEPA have specific agencies is complete, available and
The title has been changed to make this public notification requirements. The sufficient to meet the BLM’s needs.
clear. A list of potentially relevant BLM will consider adding more specific Comment: Some comments express
regulations is located in part B. guidance regarding public notice of a concern that direction for limiting
Additional regulations, policies, FONSI in the BLM NEPA Handbook (H– actions during the NEPA analysis
directives, and guidelines that affect 1790–1). Distinct from its obligations process was too narrowly framed and
BLM programs may be provided when under the NEPA, the BLM is required did not adequately reflect regulatory
the applicant contacts a Responsible under other statutes to provide public requirements.
Official and describes their proposed notification regarding management Response: In addition to noting these
action(s). decisions. This notification is done in limits, the BLM revised section 11.4G to
Comment: A concern was expressed accordance with program specific refer readers directly to the CEQ
about the absence of NEPA compliance regulations and guidance. regulation regarding the limitation on
in the ‘‘applicants’’ guidance’’ section. Comment: Some comments state that action during the NEPA analysis as
Response: The text has been clarified the public’s involvement in the NEPA provided in 40 CFR 1506.1, and to
to address NEPA requirements for process should be more limited, while provide guidance to aid in fulfilling the
private applicants and other non-federal other comments state that the public regulations.
entities as required by 40 CFR 1501.2(d). should be given more involvement Comment: Some comments point out
opportunities than they are currently that the Federal Register notice failed to
11.4 General Requirements provided. use the DOI’s most recently adopted
Comment: Some comments state that Response: The CEQ regulations definition of adaptive management
local, state, and federal agencies should implementing the NEPA require (AM).
not be provided ‘‘cooperating agency agencies to involve the public in the Response: The BLM revised the AM
status’’ because it blurs the lines of environmental analysis process. The definition in 516 DM 11.4E to be
NEPA responsibility. timing of public involvement for EISs is consistent with the DOI definition
Response: The NEPA regulations set by regulation; however, the timing found in 516 DM 4.16.
specifically provide for and encourage and manner of the subject involvement Comment: Some comments question
the use of ‘‘cooperating agencies’’ (40 for EAs and CXs is left to the discretion the use of AM and request more
CFR 1501.6). The participation of other of the Responsible Official. The BLM is information about when it should be
agencies in the BLM’s NEPA processes not changing existing public used. There is concern that AM not be
in no way ‘‘blurs’’ the BLM’s status as involvement procedures as a part of the used as sole mitigation to justify a
the agency responsible for the NEPA process of revising this 516 DM 11. FONSI.
analysis and the associated decision- Comment: Some comments suggested Response: The BLM does not use AM
making affecting public lands. that the BLM revise 516 DM 11 to as a sole mitigation to justify a FONSI.
Comment: Some comments ask the provide further guidance regarding Section 11.4E states that the
BLM to revise the language regarding facilitating public involvement during Responsible Official is encouraged to
consensus-based decision-making to NEPA review processes. build AM practices into proposed
clarify that only federal managers have Response: Because the range of actions and NEPA compliance activities
decision-making authority. activities the BLM undertakes is so and train personnel in this important
Response: The new language in 516 broad and varied, and because public environmental concept. The DOI is
DM 11.4 D(2) has been added to involvement can take many forms, developing additional guidance for
describe consensus-based management specific guidance on facilitating such bureaus on the use of an AM approach
(as per ESM 03–7) and to clarify that the public involvement is more appropriate to management activities.
BLM has exclusive responsibility for for inclusion in the BLM’s NEPA Comment: Some comments state that
decision-making. Handbook (H–1790–1). The NEPA using AM violates the NEPA by (1)
Comment: Some comments Handbook provides operational allowing the BLM to defer decisions
recommend that more detailed guidance guidance on how to implement the BLM regarding mitigation—and the impacts
be placed in 516 DM 11 to promote policy regarding public involvement. that might result if the mitigation fails—
consistency between the BLM offices Comment: Some comments state that without addressing those decisions in a
undertaking public involvement. the BLM should revise the language in NEPA document; (2) removing
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Response: The recommended detailed section 11.4 to include reference to the significant agency decisions about
guidance will be considered for Data Quality Act (Pub. L. 106–554). mitigation, and the possible impacts,
placement in the BLM’s NEPA Response: Specific reference to the from public review and comment; (3)
Handbook (H–1790–1). The BLM’s Data Quality Act in 516 DM 11 was not removing significant impacts that may
public involvement guidance in 516 DM added. The BLM managers are be detected during the monitoring
11 is consistent with policies and responsible for ensuring compliance process from NEPA analysis; and (4)

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relying heavily on monitoring and Response: Section 11.6 has been EIS is required. Guidance on how to
evaluation, which the BLM is often revised to provide policy guidance on determine significance, including when
unable to support. the use of existing documentation. effects should be considered ‘‘highly
Response: (1) Adaptive Management Operational specifics on how to controversial’’ is applied in accordance
is a planning tool; it does not relieve the implement the policy, such as levels of with CEQ regulations and requires
BLM of the responsibility of meeting the interdisciplinary review, will be agencies to consider the degree to which
requirements of the NEPA or other laws. provided in the BLM NEPA Handbook effects are likely to be controversial
The use of AM does not permit the BLM (H–1790–1). when determining whether to prepare
to defer ‘‘decisions on mitigation and Comment: Some comments state that an EIS. The BLM applies the ‘‘highly
impacts if mitigation fails.’’ In fact, a the BLM DNA Worksheet does not meet controversial’’ concept to disagreements
more vigorous monitoring strategy will the requirements of NEPA compliance. about the nature of the effects.
help determine if mitigation is working, Response: In certain situations, the Additional clarification and examples
and if not, it will help speed up the BLM undertakes a DNA process to will be provided in the BLM NEPA
change in management action or review whether a proposed action has Handbook (H–1790–1).
mitigation strategy. Mitigation and already been fully analyzed in a NEPA Comment: Some comments express
impacts will still be addressed in the document. Where the proposed action concern that the lists of actions that
NEPA document as will the AM process has not already been analyzed or where typically require an EA or an EIS were
itself. Adaptive Management will not be it has been analyzed, but new prescriptive, rather than discretionary,
applied to all resource decisions made. circumstances or information has come and did not allow for any flexibility.
(2) Stakeholder involvement is a critical to light, appropriate NEPA analysis and Response: Although 516 DM 11.7C
aspect of AM. New DOI policy clearly documentation will be prepared. and 11.8A provide lists of actions
links stakeholder involvement to Operational guidance on how to generally requiring EAs or EISs
implementation of AM from plan implement this policy will be provided respectively, 516 DM 11.7D, 11.7E and
development through implementation. in the BLM NEPA Handbook (H–1790– 11.8B specify the flexibility or
Agency decisions on mitigation and 1). The DNA Worksheet in appendix 1 discretion allowed regarding the actions
impacts will not be removed from and implementation-specific guidance on these lists, based on potential impact
public review and comment and it is proposed in the January 25, 2006 significance.
hoped that there will be an increased Federal Register notice has been deleted 11.9 Categorical Exclusions
level of public involvement. (3) from 516 DM 11.
Comment: Some comments state that Responses to section 11.9 comments
‘‘Significant impacts’’ that are detected are divided into two blocks. Comments
during monitoring will not be removed using the DNA Worksheet process
provides the potential to overlook of a general nature that may or may not
from the NEPA analysis. Rather, any apply to more than one of the proposed
actions taken to address ‘‘significant environmental differences from widely
separated projects and to underestimate CXs are summarized and responded to
impacts’’ that may arise will themselves as ‘‘general comments.’’ Comments
be subject to appropriate NEPA review, the cumulative effects of nearby
projects. specific to a proposed CX are
including appropriate public summarized and responded to in order
involvement. It is hoped that a more Response: In accordance with 40 CFR
1502.9(c), section 11.6D states that if of category (e.g., B. Oil, Gas and
vigorous stakeholder involvement Geothermal; C. Forestry; D. Rangeland
process using AM will improve the existing NEPA documentation is
inadequate to cover the proposed action, Management; and so forth) as they occur
BLM’s ability to detect impacts earlier in 516 DM 11.
and make the necessary resource an appropriate level NEPA analysis
management changes in partnership document will be prepared. The BLM General Comments on Categorical
with stakeholders. (4) The AM process NEPA Handbook (H–1790–1) provides Exclusions
will only be used when adequate guidance regarding consideration of
cumulative impacts when determining Comment: Some comments state that
monitoring and evaluation can be the CX revisions are illegal; could short
assured. Successful AM is dependent on whether a DNA can be used.
circuit important safeguards;
good monitoring and evaluation. If the 11.7 Actions Requiring an EA circumvent existing laws, E.O., and the
monitoring strategy goes unfulfilled, the Comment: Some comments expressed BLM policies; violate the BLM’s
BLM will need to fall back on a more confusion about the differences between multiple use mission; and provide
prescriptive approach. actions typically requiring an EA and insufficient protection despite the
11.5 Plan Conformance some of the same actions proposed in application of ‘‘extraordinary
the existing and new CXs. circumstances’’ (516 DM 2.3(A) and
Comment: Some comments requested Response: The January 25, 2006, appendix 2).
that 516 DM 11 direct the BLM offices proposal included several editorial Response: The BLM disagrees. The
to reject proposals unless and until their errors in this sub-part. Sub-part 11.7C(1) CEQ regulations (40 CFR 1508.4 and
LUPs are updated to thoroughly address was revised for the sake of clarity. 1507.3) authorize Federal agencies to
potential environmental consequences. establish and apply CXs. The BLM
Response: Section 11.5 clarifies the 11.8 Major Actions Requiring an EIS followed CEQ regulations in proposing
requirement for conformance with Comment: Some comments requested additional CXs to reduce paperwork and
LUPs, including when a proposal may clarification of the term ‘‘highly delays (40 CFR 1500.4 and 1500.5) and
be rejected. controversial’’ with regard to impacts in enable the BLM to concentrate on
sub-part 11.8A(1). The concern centered environmental issues that are associated
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11.6 Existing Documentation


on whether the term referred to matters with proposed actions that require
(Determination of NEPA Adequacy)
of public/political controversy versus further analysis in an EA or an EIS. Each
Comment: Some comments suggest matters of scientific controversy. of the categories of actions in the new
that 516 DM 11 be revised to prescribe Response: This sub-part has been CXs were subjected to an administrative
a minimum level of interdisciplinary revised to remove the term ‘‘highly review. This review determined
review for completing a DNA. controversial’’ as criteria for when an whether there is sufficient supporting

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evidence, (based on past NEPA Response: The BLM disagrees. The for listing, on the National Register of
analyses) and a review of actions to BLM establishes CXs in compliance Historic Places as determined by either
support the finding that the activity with the CEQ regulations implementing the bureau or office’’ (516 DM 2,
would not cause individually or the NEPA, particularly 40 CFR 1508.4 appendix 2(2.7)), or ‘‘limit access to and
cumulatively significant environmental and 1507.3, which require agencies to ceremonial use of Indian sacred sites on
impacts (http://www.blm.gov/planning/ develop procedures for establishing CXs federal lands by Indian religious
news.html). When the CXs are used for for categories of actions that do not practitioners or significantly adversely
particular proposed actions, those normally require either an EA or an EIS. affect the physical integrity of such
actions are reviewed to ensure that they The appropriate use of CXs also reduces sacred sites’’ (516 DM 2, appendix
do not involve ‘‘extraordinary paperwork and delays (40 CFR 1500.4 2(2.11)). This means that the
circumstances’’ and are consistent with and 1500.5), and enables the BLM to Responsible Official must have
all applicable laws for protection of the concentrate on issues that are truly sufficient information regarding
environment. In addition, proposed significant and merit review in an EA or ‘‘cultural resources’’ to complete the
actions or activities must be, at a EIS, rather than amassing needless ‘‘extraordinary circumstances’’ review
minimum, consistent with the DOI and detail for actions demonstrated not to before a CX can be used to comply with
the BLM regulations, manuals, have significant impacts (40 CFR the NEPA.
handbooks, policies, and applicable 1500.1(b)). Comment: Some comments state that
LUPs regarding design features, best Comment: Some comments, while the BLM lacks the staff and funding for
management practices, terms and recognizing that the ‘‘extraordinary appropriate monitoring of categorically
conditions, and conditions of approval, circumstances’’ review is to occur before excluded activities. Some comments
and stipulations. These reviews ensure an action is determined to be eligible for express concern that by categorically
proper application of the CXs and act as use of a CX, express concern that the excluding more activities, there will be
a ‘‘safeguard’’ (516 DM 2.3(A) and BLM ‘‘often ‘defers’ special status insufficient data to analyze the impacts
appendix 2). Finally, some of the species and/or cultural resource of these activities. Other comments ask
information collected to prepare the CXs inventories on the sites of proposed the BLM to assure the public that
was made available for public review actions until after the NEPA process and impacts from the implementation of
and comment available at http:// documentation is complete.’’ The categorically excluded activities be
www.blm.gov/planning/news.html. comments go on to question the BLM monitored.
Additional information clarifying these practice of ‘‘add[ing] stipulations saying Response: An activity that is subject
reports is now available at the same that before any actual ground to a CX by definition is an activity that
Web site. The establishment and use of disturbance occurs it will conduct the is within a category of actions that have
required inventories and avoid any previously been found not to have
CXs has been upheld in Heartwood, Inc.
identified resources.’’ significant impacts, either individually
v. U.S. Forest Service, 73 F. Supp. 2d
Response: The BLM must comply or cumulatively. That being said,
962, 972–73 (S.D. Ill. 1999), aff’d 230
with the NEPA, as well as all applicable regardless of whether a proposed
F.3d 947, 954–55 (7th Cir. 2000).
environmental and resource protection activity is reviewed under an EA, EIS or
Comment: Some comments indicate
laws, such as the National Historic CX, the BLM monitors the effects of
support for the CX revisions and some Preservation Act, 16 U.S.C. 470 et seq., these activities to the extent its budget
comments would like to expand the and the Endangered Species Act, 16 allows. The BLM’s program
categories of activities excluded from U.S.C. 1531 et seq. (ESA), before any management and associated staffing
further review under NEPA. action is taken. Other than the broad decisions regarding the monitoring of
Response: The BLM will continue to mandate of the Federal Land Policy and effects are subject to the appropriations
compile and review evidence to Management Act, 43 U.S.C. 1701 et seq., process. (See, Anti-Deficiency Act, 31
determine if additional categories of which directs the BLM to prepare and U.S.C. 1341).
actions should be excluded from maintain an inventory of resource Comment: Some comments state that
additional NEPA review. The BLM may values, there are no required the BLM should increase public
propose additional CXs in the future. ‘‘inventories.’’ Rather, the BLM has notification of CX decisions made.
Comment: Some comments state that discretion as to when and how to gather Response: The CEQ regulations (40
the BLM erroneously assumes that ‘‘the information required to comply with CFR 1506.6) require public notice about
only function of an EA is to determine these statutes; that is, sufficient the completion of NEPA analysis under
whether an EIS is needed.’’ Therefore, information may come in different certain circumstances. These regulations
‘‘any EA that resulted in a FONSI need forms, including but not limited to do not require public notification of the
never have been prepared.’’ inventories. In terms of applying the use of a CX. Some BLM offices currently
Response: The BLM disagrees. There CXs, the NEPA requires that the BLM support Web sites that list the decisions
are three tasks served by completing an first determine whether any made in their management area,
EA as identified at 40 CFR 1508.9(a)(1)– extraordinary circumstances exist that including the NEPA documents
(3). The BLM analyzed past would preclude use of a CX. Several of associated with those decisions
environmental documents, including the extraordinary circumstances that the (including applying a CX). For example,
EAs and FONSIs and the underlying BLM must consider directly address see the Utah State Office Environmental
activities in establishing the CXs resources mentioned in the comments. Notification Bulletin Board at https://
described in this final action. Categories For example, extraordinary www.ut.blm.gov/enbb/index.php.
of actions were considered eligible for circumstances prohibiting the use of a Comment: Some comments state that
CXs when the EAs, FONSIs, and CX include instances where an the BLM should include the CXs from
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subsequent review of these actions individual action may ‘‘have significant the Energy Policy Act of 2005 in the 516
showed no individually or cumulatively impacts on such natural resources and DM 11 revisions.
significant impacts on the environment. unique geographic characteristics as Response: The CXs included in the
Comment: Some comments state an historic or cultural resources’’ (516 DM Energy Policy Act of 2005 are statutory
opinion that the BLM should ban the 2 appendix 2(2.2)), ‘‘have significant CXs; therefore, do not need to be listed
use of CXs. impacts on properties listed, or eligible in 516 DM 11.

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Comment: Some comments ask the reviewed past actions and associated CEQ implementing regulations (40 CFR
BLM to describe how cumulative NEPA documents. These NEPA 1509.4 and 1507.3) allow federal
impacts of the proposed CX activities documents included analyses of agencies to identify categories of
would be evaluated. Some comments cumulative effects, which in relevant actions, which normally do not require
suggest that 516 DM 11 be revised to instances, included actions taken by the either an EA or an EIS. The
ensure that the cumulative impacts of Forest Service. The BLM’s review of development of this CX was based on
projects covered by a CX are analyzed. these past actions, the NEPA analyses generally accepted analytical
Response: An action can only be specific to the actions, and anticipated procedures, which included completion
categorically excluded from further effects, as well as the actions’ actual of a census of available data on
NEPA analysis when it has been shown effects, allowed the BLM to determine geophysical exploration. See http://
that the action fits within a category of that the actions had no individual or www.blm.gov/planning/news.html. One
actions that has already been cumulative significant impacts, and that benefit to all stakeholders of adopting
determined not to have a significant development of a CX covering such new CXs for activities, which have been
environmental effect on the human actions was warranted. The final shown to have no individually or
environment, individually or determination whether a specific cumulatively significant effects, is
cumulatively (see 40 CFR 1508.4). For proposed action will have a significant additional federal resources can be
all of the categories of actions for which cumulative effect or not, is completed at redirected to analyzing and mitigating
the CXs were proposed, the analysis of the time the specific proposal is activities likely to have significant
the NEPA documents prepared for such reviewed by considering the adverse environmental consequences.
actions, as well as subsequent applicability of any extraordinary Comment: Some comments suggest
evaluations of the effects of the actions, circumstances. that the proposed CX 11.9B(6) would
showed that the actions did not cause Comment: Some comments state that promote the segmentation of a major
significant effects. Further, when the BLM needs to ensure that project into several categorically
considering whether to use a CX, one of implementation of all the CXs will not excluded small projects, which would
the ‘‘extraordinary circumstances’’ that cumulatively result in jeopardy to listed prevent appropriate consideration of
must be evaluated is whether the endangered species. cumulative impacts.
proposed action may ‘‘have a direct Response: The Responsible Official Response: The BLM disagrees.
relationship to other actions with must ensure that no BLM action will Geophysical exploration activities are
individually insignificant but jeopardize a listed species under the independent actions and not connected
cumulatively significant environmental ESA. Before a CX can be used, the actions as defined in NEPA (40 CFR
effects’’ (516 DM 2.3(A)3 and appendix Responsible Official must determine 1508.25 (a)(1)). Geophysical exploration
2 (2.6)). If it might, then an EA or an EIS that no ‘‘extraordinary circumstances’’ activities are data collection activities
must be completed for the action, and apply. If ‘‘extraordinary circumstances’’ used to gather information that may be
a CX cannot be applied. (516 DM 2.3(A)3 and appendix 2 (2.8)), used to inform future decision-making
Comment: Some comments ask the which addresses endangered species, regarding oil, gas or geothermal
BLM to evaluate the cumulative impacts applies, a CX may not be used. development proposals by providing
of the proposed CXs, the revisions to the information on the location of energy
Northwest Forest Plan’s (NWFP) Survey Responses to Specific Comments on resources. It is not a forgone conclusion
and Management Program and Aquatic Section 11.9—Categorical Exclusions that the energy resources identified
Conservation Strategy; the National through this data collection will
B. Oil, Gas, and Geothermal Energy
Forest Management Act Planning actually be developed. Before a CX can
(Sub-parts B(6)–(8))
regulations; and the National Forest be used, a proposed action must be
Management Act notices, comment, and B(6)—Comments. reviewed to determine whether or not
appeal regulations. Comment: Some comments state that any of the ‘‘extraordinary circumstance’’
Response: The new or modified CXs the proposed CX 11.9B(6) should not be (516 DM 2.3(A)3 and appendix 2),
are specific to a revision of the implemented because geophysical applies. In particular, ‘‘extraordinary
procedures described in the 516 DM 11 operations were excluded when circumstance’’ 2.6 addresses the
for implementing the NEPA within the Congress authorized additional energy potential for significant cumulative
BLM. The determination that development-related CXs under the impacts; if it does apply, the CX cannot
establishing CXs does not require NEPA Energy Policy Act of 2005. be used.
analysis and documentation has been Response: Section 390 of the Energy Comment: Some comments state that
upheld in Heartwood, Inc. v. U.S. Forest Policy Act of 2005 does not provide for federal court and administrative
Service, 73 F. Supp. 2d 962, 972–73 a CX for the geophysical activities decisions have either remanded the
(S.D. Ill. 1999), aff’d 230 F.3d 947, 954– described in the proposed CXs. The Act BLM decisions to approve geophysical
55 (7th Cir. 2000) (holding creation of does not preclude the appropriate exploration or affirmed agency
CXs to be an establishment of agency exercise of authority to administratively decisions, only after the BLM proposed
procedure for which CEQ regulations do establish CXs in accordance with the additional mitigation measures.
not require preparation of an EA or EIS). NEPA, the CEQ regulations, and the DOI Response: The data analyzed and
The CXs proposed in January 2006 and and the BLM NEPA procedures. reviewed by the BLM validate the
finalized here are part of the BLM’s Comment: Some comments state that assertion that the impacts from
effort to update internal NEPA the proposed CX 11.9B(6) is a policy geophysical operations would not be
implementing procedures. A cumulative change aimed specifically at benefiting significant. Specific to the comment
effects analysis of the establishment of the oil and gas industry and that as related to litigation, the data indicate
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these CXs, in relation to the NWFP, the such, is a ‘‘scheme’’ to make energy that out of 244 projects reviewed, the
National Forest Management Act exploration companies more money. NEPA analyses of eight geophysical
Planning regulations, and the National Response: No change to the CX was exploration projects, supported by EAs,
Forest Management Act is not requested by these comments, no were challenged through administrative
appropriate in this context. However, in changes were made in response. The appeals or litigation. Only two of the
developing the Forestry CXs, the BLM BLM proposed CX 11.9B(6) because eight were remanded to the BLM. In one

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situation, the NEPA document was substantial reductions in the amount of cumulatively significant environmental
found inadequate where the BLM failed actual surface disturbance and effects (i.e., to non-commercial uses,
to consider reasonable alternatives (such associated resource impacts. Physical such as scientific, educational,
as limiting use to existing roads) that impacts such as road construction are recreational, aesthetic and spiritual
had been suggested, and in the other, rare and the impacts to soil or purposes), the CX cannot be used.
the BLM failed to provide a comment vegetation resources are minimal or Comment: Some comments state that
period that had been promised and that short-term. geophysical (e.g. seismic) exploration
the court found to be appropriate under Comment: Some comments state that activities have potentially significant
the circumstances of that case. Neither geophysical exploration activities cause impacts to environmental and cultural
was due to a finding of significant ‘‘disturbance’’ and related erosion resources.
impacts associated with geophysical impacts, such as landslides and slumps. Response: None of the 244
exploration. Geophysical exploration Therefore, they recommend that the CX geophysical exploration projects
(the impacts from those activities and not be adopted. reviewed during the establishment of
how the BLM field personnel address Response: Available data supports this CX resulted in a significant impact,
the approval process) has changed over adoption of the CX. The CX 11.9B(6) either individually or cumulatively.
the last several years. There have been was established after careful review of Further, the BLM believes the
244 geophysical exploration projects established permitting process ensures
lessons learned from the results of this
previously approved by the BLM. The that if there are potential individually or
litigation, from personal observation by
data examined for these projects cumulatively significant environmental
field staff associated with the projects,
included project-specific information on effects, an EA or EIS, as appropriate,
field data collection through
the location, the type of NEPA review would be done. Included in the
monitoring, and systematic evaluation performed, predicted environmental permitting process is the requirement to
of information received from the impacts of proposed actions, and actual review the DOI list of ‘‘extraordinary
proponents. Accumulation of environmental impacts after the action circumstances’’ (516 DM 2.3A(3) &
professional knowledge resulted in was completed. No projects were shown appendix 2) for every proposed action.
design features that previously were not to have significant impacts, individually ‘‘Cultural resources’’ are specifically
part of proponent geophysical or cumulatively. According to the provided for in this list. If the required
proposals, yet are now considered review of the NEPA analysis completed ‘‘extraordinary circumstances’’ review
routine. Proponents either with or for these 244 geophysical exploration indicated that significant impacts to
without the BLM consultation now projects, including review of the effects environmental or cultural resources
incorporate best management practices of the completed projects themselves, might occur, the CX would not be used.
into proposals. Project design features predicted significant impacts, including Further, the use of the CX during the
are site specific to the local concerns erosion-related impacts as a result of NEPA review process does not eliminate
and resource values. They represent a geophysical exploration, did not occur. the need to comply with Section 106 of
commonality of best management In addition, with respect to the the National Historical Preservation Act
practices that are integral to the project resources mentioned in the comments, (Pub. L. 89–665) or the Archeological
being authorized. Field personnel that the BLM applies specific ‘‘Terms and Resources Protection Act (Pub. L. 96–
routinely permit these actions know the Conditions’’—as indicated in number 95), or any other applicable resource
needs based on accumulated seven of the BLM Form 3150–4 and protection law.
professional knowledge of resource requires suspension of operations when Comment: Some comments express
concerns in the area at issue, and either unnecessary disturbance to soils may concern that geophysical exploration
assure these aspects appear in the occur. This term and condition is a part activities can damage roadless areas by
proponent’s proposal or include them as of all geophysical Notices of Intent (see creating noticeable vehicle routes,
conditions of approval in the the BLM Form 3150–4). In addition, if which can attract traffic by
authorization. ‘‘Conditions of approval’’ the required ‘‘extraordinary ‘‘unauthorized’’ off-highway vehicle
or ‘‘terms and conditions’’ are terms of circumstances’’ review conducted for drivers.
art that represent the practices and any proposed action indicated such Response: Historically, older
standards that are routinely applied to impacts as ‘‘landslides’’ and ‘‘slumps’’ geophysical exploration operations
geophysical projects specific for that might be significant, the CX would not required the use of some type of road
particular office. Their application does be used. construction. These operations left
not require a new analysis each time a Comment: Some comments state that travelways that would take time to
project is submitted, but results in a list the use of the geophysical exploration completely reclaim. In the interim, these
of measures that the proponent must CX would have negative impacts on routes would remain visible and may
implement based on local conditions. In non-commercial uses, such as scientific, have encouraged off-highway travel by
all cases, proposed actions or activities educational, recreational, aesthetic, and some members of the public. Best
must be, at a minimum, consistent with spiritual purposes. management practices over time have
the DOI and the BLM regulations, Response: See response above. The reduced the visibility of noticeable
manuals, handbooks, policies, and BLM reviewed 244 geophysical vehicle tracks through project design
applicable LUPs regarding design exploration projects. None of the features so that non-authorized use is
features, best management practices, projects reviewed during the discouraged. Further, the proposed CX
terms and conditions, conditions of establishment of this CX resulted in a was specifically limited to geophysical
approval, and stipulations. Also significant impact, either individually exploration projects that do not involve
associated with this improved or cumulatively. In addition, the BLM road construction. The BLM reviewed
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professional knowledge base, of the will review all future projects against 244 geophysical exploration projects
BLM field experience, has been the the DOI’s ‘‘extraordinary during the establishment of this CX.
steady improvement of geophysical circumstances.’’ If the review indicates None of the projects resulted in a
techniques and best management that the action may have a direct significant impact, either individually
practices by the geophysical industry. relationship to other actions with or cumulatively. As an additional
Low impact techniques have allowed for individually insignificant, but limitation, the BLM has added a

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requirement to this CX that when road activities in an area occupied by these exploration techniques, impacts
construction is involved, the CX would birds were to be refused by the resulting from the techniques, and the
not be used and additional NEPA applicant, or if its efficacy has not been BLM’s field personnel knowledge and
review would be completed. Further, sufficiently assured, an EA or EIS, as experience in reducing impacts from
the proposed geophysical exploration appropriate, would be required. this type of activity have improved over
activities can only proceed using this Proposed actions or activities must be, time. The lessons learned based on
CX where none of the ‘‘extraordinary at a minimum, (as is stated in the personal observation by field staff
circumstances’’ apply (516 DM 2.3A(3) preamble to this section) consistent with associated with the projects, field data
& appendix 2). Laws (such as the Migratory Bird Treaty collection through monitoring, and
Comment: Some comments state that Act (Pub. L. 86–732), DOI and BLM systematic evaluation of information
the proposed CX 11.9B(6) would regulations, manuals, handbooks, received from the proponents has
‘‘wrongly exclude’’ the covered actions policies, and applicable LUPs regarding resulted in accumulation of professional
from compliance with federal laws design features, best management knowledge that has led to development
protecting wildlife, such as the ESA. practices, terms and conditions, of design features that were not
Response: The use of a CX does not conditions of approval, and stipulations. previously part of proponent
eliminate the need to comply with Comment: Some comments ask the geophysical proposals. Use of design
Section 7 of the ESA or other federal BLM to revise the proposed geophysical features to minimize impacts to soil and
laws. None of the 244 projects reviewed exploration CX 11.9B(6) to ensure that ground cover are now routinely
during the establishment of this CX operations do not result in cumulative included based on local conditions. The
resulted in a significant impact, either impacts. BLM alerts proponents regarding
individually or cumulatively. Further, if Response: An activity that is subject resource values of concern in a given
the proposed geophysical exploration to a CX by definition is an activity that area, and proponents incorporate best
activity has the potential to significantly has been found not to have significant management practices into the proposal
impact listed threatened or endangered impacts, individually or cumulatively. so that impacts are now minimal. In
species, or their critical habitat, Geophysical exploration activities that addition, the BLM’s review of 244
‘‘extraordinary circumstance’’ 2.8 (516 would be authorized under the CX have projects determined that there is no
DM 2 appendix 2.8) applies, and an EA been shown not to have significant significant impact from this activity.
or EIS, as appropriate, is required. impacts, either individually or Further, each proposed action is
Comment: Some comments state that cumulatively based upon the BLM reviewed against the DOI’s
weed invasion follows the network of administrative review of 244 ‘‘extraordinary circumstances’’ as
seismic activities across the landscape, geophysical exploration projects. The described in 516 DM 2.3A(3) and
which can result in irreversible weed analysis report is available at the BLM appendix 2. Any proposed geophysical
invasions that radically alter fire cycles Web site at http://www.blm.gov/ exploration activity that does not satisfy
and endanger wildlife habitat. planning/news.html. None of the NEPA
Response: None of the 244 projects these requirements must be analyzed
documentation for the 244 geophysical through the EA or EIS process, as
reviewed during the establishment of exploration projects analyzed in the
this CX resulted in a significant impact, appropriate.
study during the establishment of the
either individually or cumulatively. In CX indicates the occurrence of B(7) & (8)—Comments.
addition, specific to the resource significant impacts. The BLM also Comment: Several comments were
commented on, if the proposed employs a NEPA review process that received related to proposed CXs 11.9
geophysical exploration action may ensures, if any of the ‘‘extraordinary B(7) for permitting infill wells within
contribute to the introduction, circumstances,’’ as defined in 516 DM the [reasonable foreseeable
continued existence, or spread of 2.3A(3) and appendix 2, apply, a CX development] RFD for an established
noxious weeds, ‘‘extraordinary cannot be used. One of these geothermal field, and B(8) for the
circumstance’’ 2.12 (516 DM 2, ‘‘extraordinary circumstances’’ that issuance of site licenses to operate
appendix 2.12) would eliminate the precludes the use of a CX addresses geothermal facilities whose construction
decision-maker’s ability to use CX cumulative impacts. and operation were included in a
11.9B(6). An EA or EIS, as appropriate, Comment: Some comments state that utilization plan NEPA document.
would be required. establishment of terms and conditions Comments addressed such concerns as
Comment: Some comments ask the for specific proposed actions depends the potential for geothermal activity to
BLM to revise the proposed geophysical on the soil, weather, ground cover, and affect water-confining soil layers and
exploration CX 11.9B(6) to prohibit type of machinery to be used in each potentially result in the loss of wetted
seismic activity during migratory bird case; therefore, the proposed CX would playa areas; impacts on special-status
breeding season. not adequately account for these site- species and endangered species and
Response: None of the 244 projects specific issues. their habitats that may result from use
reviewed during the establishment of Response: The BLM agrees that the of the proposed CXs; and currency of
this CX resulted in a significant impact, design of each proposed action depends LUPs with respect to the ecological
either individually or cumulatively. In on soil, weather, ground cover, and type status of lands and waters under
addition, the DOI and the BLM use a of machinery to be used; however, as discussion. Some commenters sought to
NEPA review process that ensures that proposed actions are designed and then expand the use of these CXs beyond the
if any of the ‘‘extraordinary reviewed against the CX list, such State of Nevada; they felt that Nevada
circumstances,’’ as defined in 516 DM actions or activities must be, at a should not be granted special
2.3A(3) and appendix 2, apply, a CX minimum, consistent with the DOI and consideration over other states and
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cannot be used. ‘‘Extraordinary the BLM regulations, manuals, asserted that projects in other states
circumstance’’ 2.2 (516 DM 2 appendix handbooks, policies, and applicable could meet the same criteria as used in
2) affords protection specifically for LUPs regarding design features, best Nevada. Commenters also asked why
migratory birds. Therefore, if a project management practices, terms and there was a need for further NEPA
design feature intended to provide conditions, conditions of approval, and analysis, rather than a DNA, where the
protection of migratory bird breeding stipulations. The geophysical NEPA document for the field

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development or the utilization plan Responses to Specific Comments on and Salem) wrote EAs for the timber
included the activities proposed for Section 11.9—Categorical Exclusions sales that were associated with the 59
Geothermal CX 11.9 B(7). In addition, STFs performed. The EAs addressed a
C. Forestry (Sub-Parts C(6)–(9))
comments expressed interest in range of environmental impacts for the
clarification of what actions CX 11.9 Broad Concerns That Apply to the New five districts including the types
B(8) was intended to cover, and what Forestry CXs mentioned in the comments. The STF
actions would be covered by methods of Comment: Some comments state that business practices and skills of those
complying with the NEPA. the proposed Forestry CX parameters conducting the action on lands similar
are inadequate to protect elements of the to the original five Districts are the
Response: Upon review of the BLM’s same. The BLM believes there are
NEPA compliance procedures, in environment, specifically predatory bird
nesting sites, woodpecker habitat, soils sufficient data to show that no
general, and in consultation with CEQ, individually or cumulatively significant
the BLM has decided not to finalize compaction, weed dispersal, small
environmental effects were predicted or
proposed CXs 11.9B(7) and 11.9B(8). As mammal burrows, and surface water
occurred as a result of the 59 STF
quality.
explained above in the description of surveys, and therefore the BLM is
Response: The BLM analysis available
modifications made from the January at http://www.blm.gov/planning/ confident that no individually or
2006 proposal, the BLM has determined news.html demonstrates this is not the cumulatively significant environmental
first that, regarding B(7) (infill wells), a case. Three of the four proposed effects will occur due to future STF
DNA combined with more focused Forestry CXs, 11.9C(7)–(9), are based on actions within the Districts identified.
development-stage NEPA documents The Lakeview District Klamath Field
three U.S. Department of Agriculture
should normally suffice for NEPA Office was inadvertently left out of the
Forest Service (FS) CXs, their
compliance, as some commenters area of coverage of the proposed CX, but
supporting data, and an analysis by the
suggested, and second, that a CX (or an has been added to the revised CX
BLM demonstrating that such proposed
EA) for B(8) is redundant and thus proposal. Actions in the Klamath Field
actions and their environmental effects
unnecessary because no new Office are the same as those taken in the
are comparable when the action is taken
five Districts identified above and result
environmental impacts result from the by the BLM. The FS considered the
in the same non-significant
administrative/ministerial action of potential for significant effects during
environmental effects. In addition,
issuing a site license where operation of the NEPA review process (68 FR 44598–
proposed actions in the Klamath Field
the plant was already covered in the 44608, July 29, 2003). Based on Office will also be subject to the
NEPA analysis and documentation assessments of local wildlife habitat ‘‘extraordinary circumstances’’ test, and
prepared for the utilization plan. Both of conditions after the actions were taken, are expected to have no significant
these solutions are applicable no significant cumulative effects were environmental effects.
nationwide. To the extent that observed by the FS. A few of the Comment: Some comments state that
comments express concern regarding projects reviewed resulted in minor soil the BLM does not disclose that ‘‘it is in
particular resources, the method an disturbance and compaction, and a few the process of implementing several
agency uses to fulfill its NEPA others showed that small numbers of internal and administrative regulatory
obligations is distinct from the agency’s noxious weeds or invasive plants changes that, in addition to the
entered the area where the trees had proposed small timber harvest [CXs
continuing obligation to comply with
been removed. The FS subject-matter (11.9C(7)–(9)], will have a cumulative
other environmental protection statutes
specialists and Responsible Officials effect on the environment that has not
such as the Clean Water Act, 33 U.S.C.
found that these impacts were within been analyzed as required by law.’’ The
1251 et seq., the Endangered Species forest plan standards and were not
Act, 16 U.S.C. 1531 et seq. (special ‘‘internal and administrative regulatory
significant in the NEPA context (40 CFR changes’’ the comments refer to are the
status species are addressed as part of 1508.27). Based upon the comparison NWFP, the National Forest Management
the BLM’s conservation plans under between the FS and the BLM lands, Act Planning regulations and the
Section 2 of the Endangered Species policies, and business practices as National Forest Management Act.
Act), and the Federal Land Policy and outlined in the BLM analysis, the BLM Response: The BLM disagrees with
Management Act, 43 U.S.C. 1701 et seq. actions are not expected to result in the comments, and believes that it is
(land use planning). The BLM LUPs are significant introductions, continued following CEQ guidelines by notifying
routinely evaluated to determine existence, or spread of noxious weeds or the public on proposed changes to the
whether the LUP decisions and NEPA non-native invasive species. In addition, 516 DM 11 (See 71 FR 4159–4167,
analysis are still valid. All actions, when applying the CXs to the BLM January 25, 2006; see also http://
including those categories of actions lands, the BLM only considers use of www.blm.gov/planning/news.html). The
considered here, must be consistent the CXs when there are no new forestry CXs are specific to the
with an approved LUP. Regardless of ‘‘extraordinary circumstances’’ (516 DM DOI’s 516 DM 11 for implementing
the age of the LUP(s) affected, each 2.3A(3) and appendix 2.12), which will NEPA within the BLM. A cumulative
proposed action would also be cause individually or cumulatively impacts evaluation in relation to the
evaluated on its own merits, and significant impacts on the human referenced ‘‘changes’’ is not appropriate,
updated information provided as environment. since there is no effect on the
necessary in the more site- and/or more The fourth proposed CX 11.9C(6), environment by this administrative
project-specific NEPA analysis. In most which addresses sample tree felling change. The proposed CXs are part of
(STF) to gather net timber volume data, the BLM’s effort to update internal
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cases, for instance, the initial


is based on a 100 percent census of STF NEPA implementing procedures. The
development plans for the types of
surveys conducted in five BLM establishment of CXs, as internal agency
actions contemplated here would have
management districts in western Oregon procedures for implementing the NEPA,
already been analyzed in a project-level from October 1, 2001, through has been held not to require the
NEPA document in addition to the LUP. September 30, 2005. These five Districts preparation of an EA or an EIS, under
(Coos Bay, Eugene, Medford, Roseburg, the CEQ regulations, see Heartwood,

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Inc. v. U.S. Forest Service, 73 F. Supp. Response: The BLM disagrees that the controversial environmental effects or
2d 962, 972–73 (S.D. Ill. 1999), aff’d 230 use of CXs 11.9C(7)–(9) will affect involves unresolved conflicts
F.3d 947, 954–55 (7th Cir. 2000). The available open space, or be concerning alternative uses of available
final determination on whether a ‘‘devastating’’ to the environment and resources. If one or more of the
specific proposed forestry-related action tourism. As discussed above, the BLM extraordinary circumstances listed in
will have a significant cumulative effect, analyzed the FS information and 516 DM 2, appendix 2.3 apply, the
is completed at the time the proposal is determined the BLM forestry activities Responsible Official cannot use the new
reviewed and evaluated using the included in the CXs and their effects are forestry CXs. Applying a CX to a
‘‘extraordinary circumstances’’ test, or if comparable. The FS reviewed activities proposed action does not preclude
necessary, through an EA or EIS. related to live tree harvests, salvage tree public involvement with the proposal.
Comment: Some comments state that harvesting, and sanitation harvesting Interested publics will be involved as
the forestry activities proposed for CX projects, and determined that the appropriate throughout the decision-
process review are ‘‘beyond the proposed CXs do not have significant making process. The type and level of
intended scope and purpose of the effects on the human environment, public involvement should be
categorical exclusion clause’’ in NEPA; including air and water quality and commensurate with the decision at
and by ‘‘exempting such activities, the wildlife. Further, if there are hand. Forest management decisions,
BLM is essentially advocating that ‘‘extraordinary circumstances’’ listed in including those where a CX is applied,
actions with significant environmental 516 DM 2, appendix 2 that apply, the are protestable under 43 CFR 5003.3.
impacts escape close scrutiny under the Responsible Official cannot use the new Comment: Some comments state that
requirements of NEPA.’’ forestry CXs. The use of the CX does not using the FS data to justify the proposed
Response: The BLM disagrees that eliminate the need to comply with other BLM live tree harvest, salvage tree
using a categorical exclusion allows applicable resource protection laws. The harvesting, and sanitation harvesting
actions with significant environmental BLM will determine whether a specific activities CXs 11.9C(7)–(9) is
impacts to escape scrutiny. To avoid proposed Forestry-related action will inappropriate because the FS lands and
repetitive documentation of known non- have a significant cumulative effect on projects in ‘‘different regions may not be
significant effects, the CEQ regulations the environment, including wildlife and comparable for a variety of reasons.’’
(40 CFR 1500.4(p), 1507.3 and 1508.4; tourism values, at the time the proposal Response: The data is applicable to
also see CEQ’s testimony before the is reviewed using the extraordinary the BLM lands because forestry related
House Committee on Resources Task circumstances test. If the proposal does projects and their predictable
Force on Updating the NEPA Lessons not pass the extraordinary environmental impacts are substantially
Learned Oversight Hearing on circumstances review, an EA or an EIS the same on the BLM and the FS
November 17, 2005), provide for will be completed. administered public lands as
defining ‘‘categories of activities’’ whose Comment: Some comments state that demonstrated by the comparability
effects do not normally require review tree harvesting is ‘‘never completely analysis conducted by the BLM
in an EA or an EIS. The process of uncontroversial, and it often imposes (http://www.blm.gov/planning/
defining these categories is an integral significant impacts on the terrestrial and handouts/CX_Report-Forestry-
part of the NEPA regulatory framework. aquatic ecosystems of the area.’’ The FS_CXs.pdf). Laws governing forest
In this case, the BLM collected data on comments further state that a CX that management for the BLM and the FS are
the NEPA analyses used for sample tree enables tree harvesting for any reason very similar. While the agencies have
felling (CX 11.9C(6)). The BLM analyzed provides insufficient opportunity for separate enabling legislation, both
the NEPA review activities documented public review. require that forest lands be managed
by the FS related to live tree harvests, Response: Based on the BLM’s according to sustained-yield and
salvage tree harvesting, and sanitation reviews of the FS tree harvesting multiple-use principles. As part of land
harvesting projects. The BLM and the projects, the BLM determined that management, the agencies are further
FS data and analysis support a similar projects would have similar mandated to meet the requirements of
determination that (1) the proposed effects on the BLM land, and would environmental laws including the Clean
Forestry CX activities do not have have no significant effects on the Water Act, Clean Air Act, Endangered
significant effect(s) on the human terrestrial and aquatic ecosystems in the Species Act, and the National Historic
environment, and (2) these CXs meet the area of the projects. In the development Preservation Act when making
intent of the CEQ regulations that of the three harvesting and salvaging decisions. Finally, the proposed actions
govern the establishment of CXs. The CXs, the FS reviewed the effects of 154 designed and reviewed for application
BLM is establishing these categories of tree harvesting projects across the of a CX must be, at a minimum,
Forestry activities because the country, with actions similar to those consistent with DOI and BLM
appropriate implementation of the allowed in the three categories (See regulations, manuals, handbooks,
NEPA requires concentrating agency http://www.fs.fed.us/emc/nepa/library/ policies, and applicable LUPs regarding
analysis efforts on major federal actions 20030108_fr_notice.pdf). Prior to design features, best management
and not expending scarce resources implementation, none of the projects practices, terms and conditions,
analyzing agency actions where reviewed predicted significant effects on conditions of approval, and stipulations.
experience has demonstrated the the human environment. After Comment: Some comments state that
insignificance of predictable effects. implementation, on-site reviews of standing dead trees (snags) and dying
Comment: Some comments state that environmental effects of these projects trees ‘‘play an important ecosystem
the new live tree harvest, salvage tree were conducted by interdisciplinary role’’ that is ‘‘highly valued’’ and
harvesting, and sanitation harvest CXs teams of resource specialists. The ‘‘under represented.’’ Some comments
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11.9C(7)–(9) will, when combined with reviews by the BLM concluded that state that the BLM and the FS policies
new opportunities for energy none of the projects had a significant for conserving snags do not reflect an
development, affect available open effect on the human environment. In adequate appreciation of the current
space and could be ‘‘devastating to the addition, the BLM applies the review of state of knowledge about their
environment,’’ specifically air and water extraordinary circumstances to projects, ecological value. Still other comments
quality, wildlife, and tourism. including whether an action has highly want the BLM to develop ‘‘snag

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retention guidelines for each projects that had sufficient NEPA Response: A forestry cost-benefit
physiographic province * * *’’ They analysis documentation. The FS data analysis of each CX is not necessary
state that until this is done, the BLM show that no individually or because the BLM determined that the
should not allow any snag larger than 20 cumulatively significant effects resulted cumulative economic impact of the
inches diameter at breast height (dbh) to when the activities described in the proposed changes to 516 DM 11,
be removed based on a report prepared three FS forestry CXs were used. Since including adoption of CXs 11.9C(7)–(9)
for the DOI Final Draft Recovery Plan no significant effects occurred at the would not have an annual effect of $100
for the Northern Spotted Owl issued current size limits, there is no logical million or more on the economy or
in1992. reason to arbitrarily reduce the size adversely affect productivity,
Response: The BLM agrees that limits. For additional information on the competition, jobs, the environment,
standing dead and down woody FS data collection and analysis process public health or safety, or state, tribal or
material is an important component of and the method used to determine local governments. This determination
a healthy forest ecosystem. The BLM’s reasonable project area limits, refer to 68 was reported in the 71 FR 4161, January
LUPs in the Pacific Northwest are based FR 44598–44608, July 29, 2003, and 25, 2006. The expected economic result
on the Record of Decision for supporting documents and the BLM from instituting the new forestry CXs in
Amendments to Forest Service and analysis at http://www.blm.gov/ 516 DM 11.9C is efficient reallocation of
Bureau of Land Management Planning planning/handouts/CX_Report-Forestry- resources needed to complete NEPA
Documents Within the Range of the FS_CXs.pdf. The BLM also rejects the review from actions, which do not have
Northern Spotted Owl (ROD) and notion that allowing commercial use of a significant effect to those, which may
Standards and Guidelines for the harvest material increases have a significant effect.
Management of Habitat for Late- environmental risks. The effects on the Comment: Some comments question
Successional and Old-Growth Forest ground of a project would be the same the amount of money the BLM charges
Related Species Within the Range of the regardless of whether or not someone is for permits and timber.
Northern Spotted Owl (S&G), April likely to profit from the venture. Response: This question is not
1994. The Final Draft Recovery Plan for Comment: CXs 11.9C(7)–(9) provide relevant to the proposed revisions in
the Northern Spotted Owl (1992), for ‘‘temporary road construction.’’ 516 DM 11 regarding CXs for permits.
referenced by the commenters, was Some comments ask the BLM to define Market values are a local issue, and
considered when writing the Final ‘‘temporary road’’ and other comments values for resources are set by the BLM
Supplemental EIS and Record of ask the BLM to clearly define what Districts based on local economies.
Decision (ROD) (page 17). The S&G constitutes temporary road construction Comment: Some comments noted that
addressed physiographic provinces to ‘‘minimize impacts.’’ Some comments three of the ‘‘proposed new CXs
(Introduction page A–3) and both the state that limiting temporary road 11.9(7)–(9) mirror new CXs developed
retention and removal of snags (S&G, by the Forest Service.’’ They ‘‘by
construction to ‘‘no more than 0.5
pages C–14, 15). The ROD and S&G do reference’’ reiterate their concerns about
mile[s]’’ is too constraining, while
not set a diameter limit on snag these FS-based Forestry activities
others state that any road building
retention. Since the BLM LUPs are published in the 68 FR 1026, January 8,
causes significant environmental
based on the ROD and S&G, the BLM 2003, in their comments on the BLM
impacts.
rejects setting an arbitrary limit of 20 proposal to adopt CXs 11.9(7)–(9).
inches dbh on snag retention. Response: The BLM agrees that it
needs a definition for temporary roads. Response: The concerns expressed in
Comment: Some comments express
For use of the specific forestry CXs the comment are addressed in this
preference for a 100 or 250-acre upper
11.9C(7)–(9) the BLM has rewritten the notice of final action where relevant,
size limit on the new forestry CXs
11.9C(7)–(9) while others ask that the CXs to define temporary roads based on and in the case of other concerns, the
upper limit be reduced to 10 acres for the definitions in the FS regulations, relevant FS responses to comments
all potentially eligible harvest activities. which will meet the BLM needs and received and published in 68 FR 44598–
Some comments state that establishing ensure compatibility between agencies 44608, July 29, 2003, are by reference
‘‘a higher [acres] limit for salvage and for these specific CXs. The BLM rejects included in this notice of final action.
insect/disease timber sales makes the notion that any road construction The FS Federal Register notice may be
absolutely no sense’’ and that ‘‘allowing causes significant environmental obtained electronically at http://
commercial projects to be included impacts. The BLM reviewed the FS data www.fs.fed.us/emc/lth/notice.pdf.
heightens [environmental] risk * * *.’’ where 35 of the 154 timber sales C(6)—Comments.
Response: The BLM is finalizing the reviewed by the FS required temporary Comment: Some comments ask the
proposed CX language as written. The road construction. The FS found no BLM to provide a ‘‘sufficient
BLM analyzed the FS data, and significant effects in reviewing these explanation’’ for why the proposed
determined that the FS size acres limits, projects. The average length of Sample Tree Felling (STF) CX 11.9C(6)
which are based on their data, are temporary road construction for the 35 is limited to certain areas within
appropriate for the CXs. Having the sales was 0.5 mile. Based upon its Oregon. Some comments suggest that
BLM and the FS using the same size analysis, the BLM determined that the STF CX 11.9C(6) be expanded to all
limits for similar treatments will help temporary road construction when the of Oregon, other Western States, or
maintain consistency between the CX criteria are met will be non- BLM-wide.
agencies. The BLM would need to significant. Therefore, it is appropriate Response: While the STF survey
gather new data to support using a CX to use the 0.5-mile maximum length method has been used elsewhere, the
for larger treatment areas. The BLM’s limit for temporary road construction BLM reviewed NEPA analysis
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CXs 11.9C(7)–(9) are similar to three FS for these CXs, to maintain consistency specifically to consider the
forestry CXs formally adopted in 2003 between agencies. environmental effects of the STF timber
(68 FR 44598–44608, July 29, 2003). The Comment: Some comments state that volume survey method within the
FS instituted their forestry CXs (Forest the BLM should conduct an in-depth western Oregon lands managed under
Service Handbook (FSH) 1909.15, Ch. cost-benefit analysis of the proposed the Oregon and California Lands Act
31.2(12–14)) based on 154 completed FS forestry CXs: 11.9C(6)–(9). (Pub. L. 75–405, August 28, 1937, as

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amended by Pub. L. 426, June 24, 1954). on the environment. Other comments actions under the NEPA. There are
The BLM’s Lakeview District, Klamath state that the STF CX 11.9C(6) analysis numerous administrative and
Falls Resource Area has been added to report (http://www.doi.gov/oepc/ information gathering activities that
the BLM management units that are cx_analysis.html or http:// occur on forested BLM lands that may
eligible to use CX 11.9C(6), since it is www.blm.gov/planning/news.html) is or may not be within proposed timber
part of the Oregon and California Lands flawed because none of the NEPA sale areas. Many of these activities, e.g.,
Act area where the NEPA analysis and processing documents specifically stand exams, prescription inventory
implementation and effects data are identified STF as the proposed action plots, wildlife surveys, property line
available. Omission of the Klamath Falls category that could be tied to a finding and boundary surveys, are typically
Resource Area in CX 11.9C(6) was of no individually or cumulatively performed through a basic data
unintentional. Therefore, Lakeview significant impacts. collection CX. These activities are
District, Klamath Falls Resource Area is Response: Based on the comment separate actions that are carried out in
added to the CX as finalized for these received, the BLM revisited the 2001 different time periods to provide the
areas. The Prineville District is not through 2005 timber sale EA data used BLM with information to expand the
located within the Oregon and for the proposed STF CX, which came knowledge of resource values.
California Lands Act area reviewed, and from five BLM Districts in western Collecting inventory data through stand
has not been included in the CX. Oregon (Coos Bay, Eugene, Medford, exams, conducting wildlife surveys, or
Comment: Some comments state that Roseburg, and Salem) that have felling sample trees to ascertain volumes
the STF CX 11.9C(6) violates the historically used STF extensively. In the is not directly connected to proposed
agreement that the BLM made in a timber sale EAs analyzed, four of the actions, and does not make a resource
federal court (Umpqua Watersheds, et five Districts’ data (Coos Bay, Eugene, use allocation decision. If a subsequent
al., v. BLM, No. 00–1750–BR, U.S.D.C. Medford, and Salem) did not timber sale project is proposed, the BLM
Or., Stipulation for Dismissal and Order, specifically address the impacts of STF. is mandated by regulation (40 CFR 1507
13 January 2003). These comments The Roseburg District EAs did and 1508.4) and the DOI (516 DM 2) to
point out that the new CX will eliminate specifically address cumulative effects determine the scope of the proposed
a court settlement requiring the BLM to of STF as the proposed action category timber sale, consider alternative actions,
restrict STF to trees under 20″ dbh. in their 14 project EAs between October and assess the affected environment
Response: The CX 11.9C(6) was 1, 2001, and September 30, 2005. Based through an EA or EIS, as warranted,
proposed to address the terms of the on the comments received, the BLM including potential cumulative impacts.
agreement which states that: ‘‘Unless or conducted a further review of six Comment: Some comments state that
until there is legislative, regulatory, or District-wide programmatic STF EAs the proposed STF CX 11.9C(6) violates
other authority adopting a NEPA (Coos Bay, Eugene, Medford, Roseburg, a NEPA requirement that actions not be
procedure for sample tree felling or Salem, and Lakeview District—Klamath taken to implement a decision before a
exempting such actions from NEPA Falls Resource Area) completed prior to decision is made (e.g., cutting down
procedures, sample tree felling for the 2003 Court Stipulation for Dismissal sample trees in units that are or could
timber sale cruising will not occur prior and Order (Umpqua Watersheds, et al., potentially be allocated in a LUP for a
to the BLM issuing any final decision v. BLM, No. 00–1750–BR, U.S.D.C. Or., timber sale). They state that the BLM is
document on any BLM District in Stipulation for Dismissal and Order, 13 committing resources prejudicing the
western Oregon * * * of any trees over January 2003). The six District-wide ultimate decision.
80 years old * * * of any Douglas-fir programmatic EAs were written Response: The BLM disagrees.
trees 20.0 inches diameter at breast specifically to analyze STF in the six Sampling the potential timber yield of
height (dbh) or greater.’’ Thus, rather western Oregon districts. Each an area to obtain basic resource
than constituting a violation of this programmatic EA analyzed STF effects, inventory data is not equivalent to
agreement, this change in the NEPA and none were found to be significant. making a decision regarding resource
procedures for STF was specifically Analysis from both data sets support the use allocation. There are instances
provided for and anticipated in the conclusion that performing STF where for various reasons proposed
stipulated order resulting from the activities will cause no individually or timber units or sales have not been
settlement agreement. CEQ regulations cumulatively significant impacts on the offered, even though sample trees were
at 40 CFR 1507.3 and 1508.4 give the human environment when the STF cut to gather information on stand
BLM the authority for adopting a NEPA activities are as described in CX harvest potential. Cutting individual
procedure to categorically exclude 11.9C(6) and when no ‘‘extraordinary sample trees at an average density of
proposed actions, and based on the circumstances’’ (516 DM 2.3A(3) and less than one tree per acre does not
analysis referred to in previous appendix 2) apply. In all cases where constitute an irrevocable commitment to
responses and the analysis available at STF was implemented on the ground, sell the timber stand measured by this
http://www.blm.gov/planning/ the actual impacts of STF were the same method.
handouts/CX_Report- as the predicted impacts, and caused no Comment: Some comments state the
Sample_Tree_Falling.pdf, the BLM individual or cumulative significant BLM should use the NWFP standards
determined that a CX was appropriate impacts. for exempting thinning projects in
for STF. CEQ’s testimony before the Comment: Some comments state that stands less than 80 years old from
House Committee on Resources Task STF is a connected action not subject to Regional Ecosystem Office (REO)
Force on Updating the NEPA Lessons categorical exclusion. They posit that a review. They state that this action
Learned Oversight Hearing on proposed STF action is ‘‘always would help prevent the BLM ‘‘abuse of
November 17, 2005, reemphasized the connected to a commercial timber sale’’ discretion in thinning in young stands
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responsibility of federal agencies to so categorically excluding an STF is a to restore old-growth conditions in Late
establish appropriate new CXs to ‘‘segmenting action’’ which could Successional Reserves (LSR).’’ The
promote efficient NEPA compliance. prevent appropriate consideration of comments suggest that the REO
Comment: Some comments state that cumulative impacts. exemption criteria are based on credible
the proposed STF activities in CX Response: The BLM position is that science that will help to build public
11.9C(6) could have significant impacts STF and timber sales are not connected trust/support.

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Response: No changes to the NWFP does not change the conclusion that the all ages. The data analyzed by the BLM
are proposed with this CX, and the BLM sample size would average less than one supports the conclusion that performing
will continue to follow the standards of tree per acre, and there would be no STF activities as described in the CX
the NWFP when implementing the CX. significant impacts from this level of 11.9C(6), regardless of the timber age,
The BLM will continue to follow the action. and when there are no ‘‘extraordinary
guidance contained in the REO Comment: Some comments state the circumstances’’ (516 DM 2.3A(3) and
Memorandum of April 20, 1995, BLM should correct the date on the ‘‘CX appendix 2), will cause no individually
‘‘Criteria to Exempt Specific Project—Sample Tree Felling’’ analysis or cumulatively significant impacts on
Silvicultural Activities in LSRs and report (dated January 3, 2005), when the the human environment.
MLSAs from REO Review.’’ By actual date was January 3, 2006. Comment: Some comments state that
following the NWFP standards and the Response: The typographic error in hundreds of old-growth trees will be
REO guidance when using the CX, the the date of the analysis report has been removed if the STF CX 11.9C(6) is
BLM concludes that no additional corrected. The STF data analyzed were instituted.
constraints need be applied, no ‘‘abuse compiled in November 2005. The NEPA Response: By its own terms, the STF
in discretion in thinning’’ will occur, review process findings discussed in the CX 11.9C(6) limits felling, bucking, and
and no significant impacts will result. analysis report came from STF projects scaling sample trees to an average of one
Comment: Some comments state that performed between October 1, 2001, and tree per acre or fewer. The CX does not
the number of trees to be sampled on September 30, 2005. The BLM include yarding and removal
average per acre is too small while subsequently examined pre-2001 (harvesting) of trees; therefore,
others state the sample size is too large. programmatic EAs which resulted in the generally, the trees felled will remain in
Response: The numbers of trees same finding—no individually or situ.
sampled is not a randomly chosen cumulatively significant effects Comment: Some comments state the
number that is easily or arbitrarily occurred as a result of STF activities BLM should clarify the language used in
increased or decreased. The numbers of (see last comment and response). CX 11.9C(6). There was concern about:
trees to be sampled are determined by Comment: Some comments state that (a) Interpretation of the qualifier
a statistical equation (refer to the current the ‘‘CX Project—Sample Tree Felling’’ ‘‘approximately one [tree] per acre;’’ (b)
the BLM Timber Cruising Handbook, H– analysis report should have documented the purpose of the reference to ‘‘use of
5310–1) and reflect past and projected the high costs associated with ground-based equipment;’’ (c) whether
future BLM practices. The total number preparation of EAs. ‘‘temporary’’ roads are considered roads
of sample trees required is less than one Response: The requested cost-benefit
in this context; and (d) what is meant by
tree per acre on average as shown by the analysis is not required for this CX.
Comment: Some comments state that the timber yarding text. Some comments
data and ongoing BLM forestry state that the CX language seems to ‘‘be
management activities. STF sampling should be limited to
young timber stands. a bit open-ended.’’
Comment: Some comments state that
Response: The BLM disagrees. The Response: The CX language for
using data from small tree STF to
conclude that there are no impacts to STF is used to obtain volume estimates 11.9C(6) has been revised to clarify that
old-growth STF is not logical. In based on generally accepted survey the allowable action or activity is ‘‘less
addition, these data fail to reveal the methods regardless of the age of the than one tree per acre on average’’ and
real and cumulative environmental stand, which requires cutting the only tools permitted are ‘‘gas-
impacts of cutting old-growth STF. A representative trees, whether young or powered chainsaws and handtools.’’
related comment made is that if the tree old. STF has been determined to be a Road and trail construction (of any type)
is older it will be larger, and therefore, more accurate method of determining and ‘‘timber yarding’’ are expressly
more likely to be included in the STF tree volume in large trees because it is prohibited. The modifications tighten
sample. superior to other methods in detecting the language.
Response: Based on the comments defect and measuring tree taper. C(7)—Comments
received, the BLM conducted a further Comment: The number of data Comment: Some comments state that
review, which included six pre-2001 analysis ‘‘flaws’’ is a concern. For the 70-acre size threshold is excessively
District-wide programmatic EAs for STF example, failure to consider impacts on large for a ‘‘small’’ timber sale. They
in Coos Bay, Eugene, Medford, old-growth and reserve land allocations, state that a 10-acre limit would be more
Roseburg, Salem, and Lakeview District, flawed data collection methods, and appropriate based on ‘‘interim policy’’
Klamath Falls Resource Area. These EAs analyzing STF data for only young trees issued in the 52 FR 30935, August 10,
analyzed the effects of STF on trees of to justify STF in old-growth forests. The 1987, and reissued in the 53 FR 29505,
all ages, including older stands with BLM’s assumptions and conclusion that August 5, 1988, and again revised in the
timber greater than 80 years of age. Even STF does not constitute a significant 57 FR 43180, September 18, 1992.
with a greater number of large trees action as defined by NEPA, could be Response: The BLM disagrees. The FS
sampled, the environmental impacts are wrong. updated its ‘‘interim policies’’ to set the
not significant. Based on the additional Response: Based on the comments 70-acre limit based on a relatively recent
review of the STF Programmatic EAs received, the BLM revisited the data analysis of relevant data (68 FR 44598—
and the findings published in the 71 FR used to prepare the ‘‘CX Report— 44608, July 29, 2003). The BLM
4159–4167, January 25, 2006, the BLM Sample Tree Felling’’ posted at http:// reviewed the FS changes in acreages
concludes that when there are no www.doi.gov/oepc/cx_analysis.html and over the 15-year period from 1987 to
‘‘extraordinary circumstances’’ (516 DM http://www.blm.gov/planning/ 2003, which resulted in a different
2.3A(3) and appendix 2), the 11.9C(6) news.html. The BLM then conducted a position from past interim policies, and
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CX will not cause individually or further review of six pre-2001 District- concluded that the data supported a FS
cumulatively significant impacts, wide programmatic EAs for STF (Coos size limit change from 10 acres in 1987
regardless of the age of the stand. The Bay, Eugene, Medford, Roseburg, Salem, to 70 acres in 2003. The BLM
comment that a larger tree may be more and Lakeview District, Klamath Falls determined that the 70-acre limit is
likely to be included in the sample is Resource Area). These EAs included an appropriate to meet the BLM’s needs,
not relevant to the use of a CX, since it analysis of the effects of STF on trees of based on its review and comparability

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analysis of the FS data, which was ‘‘most mature trees are in some state of and water protection on appropriate
found to have no individually or decadence.’’ sites that will lead to no significant
cumulatively significant environmental Response: In the context of proposed effects. This indicates that agency
effects. Using a 70-acre limit for both the CX 11.9C(8), a dying tree is a standing practices and guidelines are effective at
BLM and the FS will help maintain tree that has been severely damaged by mitigating environmental impacts,
consistency between the agencies when forces such as fire, wind, ice, insects, or including soil erosion, sedimentation,
applying CXs. The BLM concluded from disease, and that in the judgment of an and fire risk. When designing salvage
this review that there would be no experienced forest professional or projects, the BLM uses an extensive
significant effect, individually or someone technically trained for the array of guidelines and procedures to
cumulatively, from the 70-acre size limit work, is likely to die within a few years. prevent and mitigate negative
for these actions on public lands. Comment: Some comments reference environmental impacts during these
Comment: Some comments support scientific findings that salvage tree activities. The BLM’s salvage tree
the ‘‘even-aged regeneration’’ limitation, harvesting will increase soil erosion and harvesting practices and guidelines are
while others ask that it be stricken from sedimentation through multiple similar to the FS (http://www.blm.gov/
the 70-acre live tree harvest CX 11.9C(7) mechanisms. Other comments ask the planning/handouts/CX_Report-Forestry-
language. BLM to consider the scientific evidence FS_CXs.pdf). Therefore, the BLM
Response: The BLM is not changing that salvage tree harvesting is harmful to concludes that by implementing salvage
the even-aged regeneration harvest the environment and increases wildfire tree harvesting practices and guidelines
limitation. Even-aged regeneration risk. similar to those implemented by the FS;
harvests involve a different scope of Response: The BLM reviewed the FS the BLM’s salvage tree harvesting
environmental effects, which exceed the data and practices, and determined that projects that use CX 11.9C(8), will have
supporting data for the live tree none of the sampled FS projects no significant impacts on environmental
harvesting CX. Uneven-aged harvest resulted in individually or cumulatively conditions including soil erosion,
systems (individual tree selection and significant environmental effects. This sedimentation, or increased fire risk.
group selection) maintain the canopy of indicates that agency practices and The Responsible Official must consider
a forest stand; and therefore, have guidelines are effective at mitigating the ‘‘extraordinary circumstances’’ (516
relatively little effect on the structural environmental impacts, including soil DM 2.3A(3) and appendix 2) before
and aesthetic properties of stands. Even- erosion, sedimentation, and fire risk. deciding if a proposed action qualifies
aged regeneration harvests, such as The BLM’s salvage tree harvesting for using the CX. If one or more of the
clearcutting, seed tree, and practices, guidelines and project effects ‘‘extraordinary circumstances’’ listed in
shelterwoods, were excluded from use are similar to the FS (http:// 516 DM 2 appendix 2 apply, the
in CX 11.9C(7). The limitation was www.blm.gov/planning/handouts/ Responsible Official cannot use the new
derived from the FS data that showed CX_Report-Forestry-FS_CXs.pdf). forestry CXs.
the action described in the CX to have Therefore, the BLM concludes that by Comment: Some comments ask the
no individually or cumulatively implementing similar salvage tree BLM to provide the scientific
significant environmental effects, and harvesting practices and guidelines, the information necessary to justify an
which the BLM review and analysis BLM’s salvage tree harvesting projects implied assumption that salvage tree
concluded would cause no significant that use CX 11.9C(8), will have no harvesting has less environmental
effects on the BLM lands. In addition, significant impacts on environmental impacts than other types of tree
the BLM will apply the ‘‘extraordinary conditions including soil erosion, harvesting.
circumstances’’ test to individual sedimentation, or increased fire risk. If Response: Implied assumptions have
actions covered by the CXs. one or more of the extraordinary not been used, nor has the BLM stated
Comment: Some comments ask the circumstances listed in 516 DM 2, whether salvage tree harvesting has
BLM to be more ‘‘inclusive of a greater appendix 2 apply, the Responsible more or less environmental impacts
range of possible live-tree cutting Official cannot use the new forestry than other types of tree harvesting. The
activities, whether to accomplish fuel CXs. purpose of the CX is not to compare the
reduction, forest health, wildlife, pre- Comment: Some comments posit that environmental effects of different types
commercial thinning, or commercial there is sufficient scientific evidence of tree harvesting, but to determine
timber sale objectives.’’ available that contradicts the ‘‘finding whether a CX for salvage tree harvesting
Response: The CX 11.9C(7) language that no significant impacts’’ occur when is appropriate. The salvage tree
includes several examples of when it the salvage tree harvesting CX 11.9C(8) harvesting CX 11.9C(8) is proposed
may be employed correctly; however, criteria are used. They reference several based on the BLM’s review of the FS
this is not an exhaustive list of scientific publications that support a conclusion that implementing the CX
potentially suitable applications. The conclusion that salvage tree harvesting criteria will ensure that no individually
live tree harvest CX focuses on small is damaging to the human environment. or cumulatively significant impacts on
timber harvests of 70 acres or less Response: The BLM concludes that the human environment will occur (68
regardless of the reasons for the harvest salvage tree harvesting will not have FR 44598–44608, July 29, 2003). Where
and specifically states the examples significant effects on the environment significant effects may occur, the FS
‘‘may include’’ and ‘‘but are not limited based on the review of the FS data concluded that their consideration of
to’’ those examples given in the CX. where none of the FS sampled projects the FS ‘‘extraordinary circumstances’’
Therefore, the activities listed above showed significant environmental (FSH 1909.15, Ch. 30, Sec. 30.3, para. 2)
could be covered by this CX if they meet impacts. As some scientific publications would not allow the use of the CX. The
all the CX qualifying criteria and none point out, salvage activities can have BLM has completed a comparison and
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of the ‘‘extraordinary circumstances’’ as negative environmental impacts, finds the FS CX to easily compare with
defined in 516 DM 2.3A(3) and depending on the condition of the site, the BLM CX; and therefore, will
appendix 2, apply. the harvesting system, time of the year, consider using this CX only when the
C(8)—Comments. and other factors. However, both the FS CX qualifiers apply in full and when
Comment: Some comments ask the and the BLM practices and guidelines none of the DOI ‘‘extraordinary
BLM to define ‘‘dying tree’’ because have been developed with regard to soil circumstances’’ apply (516 DM 2.3A(3)

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and appendix 2). The harvest activity specific conditions in which salvage activities. The effects on the ground of
acreage limits were established by the tree harvesting could take place without a project would be the same regardless
FS based on review and analysis of the negatively affecting the attainment of of whether someone is likely to profit
data used to establish the CXs (http:// LSR goals (NWFP ROD, Standards and from the venture.
www.fs.fed.us/emc/lth/ Guidelines for Management of Habitat Comment: Some comments state that
1998_details.pdf). The BLM concurs for Late Successional and Old-Growth there are increased fire risks associated
with the conclusions drawn by the FS, Forest Related Species Within the Range with salvage tree harvesting which will
based on similar management practices of the Northern Spotted Owl, Guidelines be overlooked in the CX review process.
and resulting environmental effects. The for Salvage pp. C13–C16). Salvage Response: Based on the BLM review
BLM concludes that with the acreage activities can have negative and analysis of the data, the BLM
limitation and other criteria in place, environmental impacts, depending on concludes that actions qualifying for the
the actions covered under the salvage the condition of the site, the harvesting CX will not cause a significant increase
tree harvesting CX will have no system, time of the year, and many other in fire risk or fire hazard.
significant effect on the environment, factors. However, both the FS and the Comment: Some comments ask the
individually or cumulatively. BLM practices and guidelines have been BLM to consider the effects of salvage
Comment: Some comments state that developed with regard to soil and water tree harvesting by preparing a ‘‘new
salvage tree harvesting harms species protection on appropriate sites that will programmatic EIS for young complex
protected by the ESA, that the CX fails lead to no significant effects. For forests’’ because the FS and the BLM
to acknowledge that large snags provide example, in the area covered by the ‘‘have [not] fully disclosed and
valuable habitat and contribute little to NWFP, the ROD identified specific considered current scientific
fire hazard, or that salvage tree conditions in which salvage tree understandings about the role of fire in
harvesting has significant impacts on harvesting could take place without forest development.’’
woodpeckers. negatively affecting Late Successional Response: The role of fire in forest
Response: The BLM must ensure that habitat goals. All actions must conform development is beyond the scope of the
any action authorized, funded, or to the LUP management guidelines proposed action.
carried out by its Responsible Officials regardless of the level of NEPA analysis C(9)—Comments.
is not likely to jeopardize the continued completed (43 CFR 1610.5–3). Comment: Some comments state that
existence of any endangered, Comment: Some comments state, the phrase ‘‘and adjacent live
threatened, or proposed species (such as ‘‘salvage tree harvesting is not uninfested/infected trees as determined
the woodpecker mentioned in the compatible with contemporary necessary’’ should either be eliminated
comment above), or result in the ecosystem-based management.’’ or quantified to show that a state
destruction or adverse modification of Response: Salvage tree harvesting is licensed, responsible FS or BLM
designated critical habitat. The BLM is one of many methods used to achieve a consultant, employee, or expert in the
required to comply with Section 7 of the goal on the landscape, and is compatible field, has validated and documented the
Endangered Species Act, regardless of with ecosystem-based management. The need to harvest adjacent trees.
the type of NEPA document completed. BLM uses ecosystem management to Response: Federal agency specialists
The Responsible Official cannot use the look at the big picture, beyond federal are qualified to make determinations
salvage tree harvesting CX 11.9C(8) if agency boundaries, and to work closely necessary in order to carry out their
any of the ‘‘extraordinary with other land managers, both public work in support of the federal
circumstances’’ in 516 DM 2.3A(3) and and private. When analyzing effects, the government, and are not required to
appendix 2 apply. Extraordinary BLM addresses the long-term have state licenses. A forester or trained
circumstance 2.8 (516 DM 2 appendix 2) consequences of today’s decisions, person determines if a tree adjacent to
specifically prohibits the application of analyzing effects to various resources as an infected tree should be removed to
a CX review process if there is the interrelating parts of systems rather than reduce the chance of spreading insects
potential to have a significant impact on as individual components to be or disease to the rest of the timber stand.
listed species or their critical habitat. managed separately. When Typically trees are harvested that are
Comment: Some comments ask the implementing decisions, the BLM uses expected to die within a year and have
BLM not to salvage log and gave the many tools. Salvage tree harvesting is indicators such as: No new growth, lack
following reasons: Some forested areas one of the tools used to achieve on-the- of leaves during the growing season,
are designated as ‘‘Late Successional ground goals. yellowing needles, loss of needles or
Reserves’’ or ‘‘Critical Habitat Units’’ Comment: Some comments state that leaves in the tree crown, or are
where the management goals are there is an increased risk that a immediately adjacent to dead trees
incompatible with salvage tree ‘‘commercial’’ salvage tree harvesting recently killed by root rot. Sanitation
harvesting; salvage tree harvesting project will ‘‘escape’’ sufficient tree harvesting would not remove all
eliminates important stand history data, environmental analysis to prevent defective trees as many are left for
structure, variability, and complexity; significant environmental impacts. wildlife and other resource values.
large, decay resistant snags and logs are Response: The BLM disagrees. The FS Comment: Some comments state that
important ecologically; and the large data were reviewed for this activity, and the BLM overestimates the negative
pulse of dead wood created by demonstrate that no individually and effects of insects and disease and fails
disturbance (such as fire and disease) is cumulatively significant environmental to consider beneficial effects.
significant for an ecosystem’s recovery impacts are likely to occur if the salvage Response: The BLM agrees that there
over the long-term. tree harvesting CX criteria apply and if are both negative and positive effects
Response: Management goals in LSRs a determination is made that none of the from insect-infested and diseased trees.
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and salvage tree harvesting are ‘‘extraordinary circumstances’’ (516 DM However, the BLM is not placing value
compatible. For example, the 1994 2.3A(3) and appendix 2) apply. The judgments on the positive or negative
NWFP and the six 1995 Western Oregon BLM determined that establishing the effects, but is premising this CX on its
RMPs provide guidance for management CX is appropriate. The analytical judgment that a FS analysis effort
of federal forest lands in western findings did not differentiate between correctly found that the effects of
Oregon. The NWFP ROD identified commercial and non-commercial sanitation harvesting up to 250 acres

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when specific criteria are met will have post-fire emergency rehabilitation is vegetation types in the HFI data are
no significant effect, individually or different from ‘‘routine management of representative of the range of vegetation
cumulatively. The harvest activity vegetation,’’ the actions and resulting structure and conditions across the
acreage limits were determined by the effects are judged to be the same by United States (refer to the December 18,
FS based on review and analysis of the professionals in the BLM. Therefore, the 2005, ‘‘CX Project—Vegetation
data used to establish the CXs (http:// BLM has determined that it is Management analysis report at http://
www.fs.fed.us/emc/lth/ appropriate to establish this CX based www.doi.gov/oepc/cx_analysis.html or
1998_details.pdf). The BLM concurs on these on-the-ground similarities. http://www.blm.gov/planning/
with the conclusions drawn by the FS Data on routine vegetation manipulation news.html for details). None of the
and concludes that for BLM actions, due activities designed to reduce hazardous treatments that took place under a CX or
to similar management practices in fuels and mitigate post-wildfire an EA/FONSI resulted in individual or
similar ecosystems, the resulting environmental impacts were collected cumulatively significant effects. Further,
environmental effects on public lands in September 2002 and analyzed in June the proposed action is reviewed against
will be not significant, individually or 2003 to determine whether two CXs the ‘‘extraordinary circumstances’’ (516
cumulatively. Further, the BLM will proposed under the Healthy Forest DM 2.3A(3) and appendix 2), and if one
review each proposed action against the Initiative (HFI) (68 FR 33813–33824, applies, the CX cannot be used.
DOI ‘‘extraordinary circumstances’’ (516 June 5, 2003), were appropriate on DOI Comment: Some comments state that
DM 2.3A(3)). If any apply, the CX and FS lands. These same types of adoption and use of the new vegetation
cannot be used. routine vegetation manipulation management CX 11.9D(10) will cause
activities, and their effects on the same negative impacts on ecosystems by
Responses to Specific Comments on lands and resources analyzed in that
Section 11.9—Categorical Exclusions opening areas to invasive plants
context, would be addressed by the CX resulting from cross-country travel at
D. Rangeland Management (sub-part under consideration here. In the HFI the wrong place and time.
(10)–(12)) context, information on 30 variables for Response: According to analyzed
2,558 projects representing a range of data, significant impacts, including
D(10)—Comments. conditions across the United States was
Comment: Some comments ask the exacerbating the spread of invasive
analyzed. These data included project- species and/or disruption of the soil
BLM to explain the relationship specific information on the location,
between the proposed vegetation surface as a result of cross-country
size, vegetation type, NEPA review travel, did not occur except for 12 of the
management CX 11.9D(10) and the processes used, predicted
‘‘Draft Vegetation Treatments Using 2,558 projects in the sample population.
environmental impacts of proposed These 12 projects were evaluated
Herbicides on Bureau of Land treatments, treatments performed, actual
Management Lands in 17 Western States through the EIS process because
environmental impacts after treatments,
Programmatic Environmental Impact significant effects were anticipated prior
and whether the associated ROD was
Statement; Volumes 1 & 2’’ (DVPEIS). to analysis. Similar projects proposed by
appealed. A total of 3,073 treatments, in
Some comments are concerned that the the BLM would not be considered for a
various combinations, were applied to
proposed vegetation management CX CX due to the likelihood that one or
the 2,558 projects. The vegetation
will ‘‘be abused’’ to meet a threefold more of the extraordinary circumstances
treatments for reducing hazardous fuels
annual increase in treated acres would apply. In addition, no
included burning, mechanical thinning,
proposed in the DVPEIS. unanticipated project-related treatment
application of chemical herbicides and
Response: The November 2005 impacts were validated by personal
use of biological agents (such as grazing
DVPEIS (http://www.blm.gov/weeds/ observation by the field staff associated
goats). Some projects had more than one
VegEIS/index.htm) analyzed the treatment applied and multiple tactics with the project, field data collection
potential effects of one of the BLM’s such as seeding, planting, tree felling, through a monitoring program, or
vegetation management tools and soil stabilizing erosion control systematic evaluation of information
(application of herbicides). The CX devices were used. The existing HFI received. Higher level NEPA analysis
11.9D(10) is established because the hazardous fuel reduction and was deemed necessary less than 0.5
BLM has reviewed the environmental emergency rehabilitation CXs do not percent of the time, and those 12
effects of site-specific routine vegetation provide for the application of chemical projects for which significant individual
management activities and determined herbicides or biological agents. or cumulative impacts were anticipated
that those activities, absent Therefore, for the purpose of the routine were elevated to the appropriate level of
extraordinary circumstances, do not vegetation management CX considered NEPA review. Based on the factual
have individual or cumulative here, the BLM has proposed the same evidence framed in the context of the
significant effects and the activities can activity limits. Further, the BLM NEPA, adoption of the proposed
proceed without being analyzed in an clarified the final CX language to vegetation management CX is justified
EA or EIS. By its own terms, this CX specifically identify a limitation that no because 99.5 percent of the projects
does not allow its use with respect to biological agents may be considered analyzed and completed did not have a
any proposed chemical herbicide action. under the CX. significant effect, individually or
Comment: Some comments state that Comment: Some comments state that cumulatively. Further, those projects
the justification for the proposed implementing the new CX 11.9D(10) that could possibly have significant
vegetation management CX 11.9D(10) is will not sufficiently address regional or effects would not pass the
inadequately substantiated. They point seasonal environmental concerns. ‘‘extraordinary circumstances’’ test and
to the fact that the BLM has based its Response: Regional and seasonal an EA or EIS would be used instead of
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justification on data from post-fire project design considerations take place a CX.
restoration efforts and ‘‘no data specific prior to any environmental analyses Comment: Some comments state that
to the myriad other vegetative based on the professional judgment and the BLM should not allow projects in
manipulation projects.’’ expertise of BLM specialists. The data certain high value wildlife areas such as
Response: Though the purpose of set analyzed did not identify a need for sage-grouse habitat and potential
treating hazardous fuels and applying regional or seasonal limitations. The wilderness areas unless the proposed

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vegetation management actions are measure of protection, and to be directly contradict the BLM’s rationale
analyzed by an EA or EIS. consistent with the HFI CX, the BLM for amendments to grazing regulations
Response: The Responsible Official added a limitation to the CX so that no proposed on December 8, 2003, (See
must determine the level of NEPA new permanent road can be constructed. final rule 71 FR 39402, July 12, 2006).
review required. The potential effect of Comment: Some comments want the Comments express concern that ‘‘[t]he
a proposed action on high value wildlife BLM to define the term ‘‘contiguous’’ combined effect of the proposed
areas such as sage-grouse will be part of both spatially and temporally, ‘‘to categorical exclusion[s 11.9D(11)&(12)]
that determination, which will take prevent abuse and cumulative impacts and the previously-proposed revisions
place in addition to a review for to the area’s flora and fauna.’’ to grazing regulations will be to
‘‘extraordinary circumstances’’ (516 DM Response: The term ‘‘contiguous’’ has eliminate all opportunities for up front
2.3A(3) and appendix 2). The Vegetation been eliminated to avoid possible public consultation regarding the terms
Management CX, by its own terms, misinterpretation. Each proposed action and conditions of grazing permits. The
cannot be considered for use in must describe the project and the only remaining opportunities for public
designated Wilderness or Wilderness impacted area in its entirety. Projects involvement will be the provisions for
Study Areas. cannot be segmented for purposes of after-the-fact protest and appeal under
Comment: Some comments state that using this CX. The impacted area of the 43 CFR 4160, and even those
allowing 4,500 acres of public lands to proposed action cannot cumulatively opportunities will be eliminated with
be treated by prescribed fire without an exceed the spatial limits established in respect to temporary, non-renewable
EA is irresponsible. the CX 11.9D(10): 1,000 acres for grazing permits.’’
Response: The HFI data reviewed for qualifying vegetation management
the development of this CX revealed no Response: The grazing permit CX
activities, except for prescribed fire, 11.9D(11) does not contradict the
unanticipated individually or which can affect up to 4,500 acres.
cumulatively significant impacts from rationale for changing grazing
Based on the spatial and temporal regulations with respect to consultation,
prescribed fire as long as the area parameters of the proposed action, the
treated remains at 4,500 acres or less cooperation, and coordination with the
Responsible Official must determine if interested public, nor does it result in
and none of the ‘‘extraordinary
any of the ‘‘extraordinary the elimination of all opportunities for
circumstances’’ (516 DM 2.3A(3) and
circumstances’’ (516 DM 2.3A(3) and up front public consultation. As
appendix 2) apply.
Comment: Some comments suggested appendix 2) apply. If there is the explained in the ROD and in the
that road construction should only be potential for individually or preamble to the final rule, the final rule
carried out following a detailed cumulatively significant impacts on the is intended to achieve an appropriate
analysis. Other road construction is area’s flora or fauna, CX 11.9D(10) balance between efficient management
discussed below. cannot be used. of public lands, and the need for public
Response: The vegetation Comment: Some comments ask the involvement (See 71 FR 39414;
management CX does not apply to BLM not to spray ‘‘untested chemicals’’ Preamble, id at 39439–39441). The same
vegetation management activities under the proposed revisions to CX goals are behind the new grazing CX.
involving new permanent road 11.9D(10). Moreover, ‘‘interested publics’’ will
construction. Projects involving new Response: The BLM has not proposed continue to have opportunities to
permanent road construction must be that the application of ‘‘untested participate (‘‘to the extent practical’’) in
documented through an EA or an EIS. chemicals’’ be subject to approval for public lands grazing management.
Comment: The BLM should exclude any purpose based on use of a CX. The Those opportunities arise, during the
prescribed fire from the proposed proposed routine Vegetation development of LUPs and activity plans,
revision because prescribed fire causes Management CX specifically excludes during the development of reports that
significant environmental impacts and the application of herbicides or lead to a determination regarding status
safety risks, and could be an excuse for pesticides because the data are not of land health, and following the
building ‘‘temporary roads.’’ available by which to analyze whether issuance of proposed and final decisions
Response: The BLM’s review of the such an activity should be included in (See 71 FR at 39432, 39470, and 39475).
projects considered in the establishment the category of actions described in the During the development or revision of a
of the CX revealed that, in the absence CX. RMP, the BLM may decide what public
of ‘‘extraordinary circumstances,’’ no D(11) & (12)—Comments. lands will (or will not) be available for
significant effects result from these Comment: Several comments were livestock grazing, change past LUP
treatment actions when the 11.9D(10) received related to proposed CX decisions, or develop guidance for
CX criteria are met. Prescribed fire is an 11.9D(12) for authorization of non- making such decisions. In addition, the
important vegetation management tool renewable grazing use. Comments BLM may use the land use planning
that can be the least environmentally included topics such as expanding the process to determine if any allotment
damaging vegetation treatment option. CX to cover actions to improve land management plans (AMPs) will be put
Use of prescribed fire was analyzed in health; questioning the adequacy of the in place. Either during or after the land
the projects reviewed and the BLM data analyzed to support the proposed use planning process, the BLM develops
concluded that the action, if carried out CX; and requesting that the BLM give the terms and conditions of permits,
consistently with the specific criteria ‘‘close scrutiny’’ to the issuance of non- leases, and AMPs, such as the
set, did not result in a significant effect. renewable grazing permits as proposed authorized animal unit months (AUMs)
In addition, while temporary roads in the CX. and seasons of use. In this tier of
included in the projects reviewed did Response: Upon review of the decision-making, the BLM incorporates
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not cause a significant effect, in analysis supporting the proposed CX a variety of elements of rangeland
response to the comment’s request for 11.9D(12), and comments received, the management into a single document.
clarification, the BLM has added a BLM has decided not to finalize the For example, public scoping conducted
definition of temporary road to be used proposed CX. during the revision of an RMP may
with respect to when this CX is Comment: Some comments suggest prompt the BLM to coordinate the
considered for use. As an additional that the proposed grazing permit CXs timing of land health assessments with

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the duration of permits, leases, and response to the proposal of this CX (71 permitted grazing resulted in no
AMPs within a Field Office so that data FR 4159–4167, January 25, 2006), as significant effects, either individually or
from recent land health assessments well as consultation with CEQ, the BLM cumulatively. This methodology for
will be available at the time of renewal. collected and reviewed additional supporting establishment of CXs is
The authorized officer (Responsible information regarding past actions and consistent with CEQ’s proposed
Official), using his or her knowledge the effects of those actions. This guidance for the establishment of CXs
and expertise, will identify the relevant additional review is intended to clarify (See 71 FR 54816, September 19, 2006).
factors, make findings, and integrate the information previously presented in For the remaining 20 percent of the
them into a single proposed decision. At the Analysis Report on the issuance of sample of grazing permits issued,
that point, the interested public has an grazing permits made available in compliance with the NEPA was
opportunity to protest, and thereby conjunction with the January 25, 2006, documented in a DNA, which is a BLM
affect the decision before it is finalized. proposal (see 71 FR 4159–4167, January procedure for documenting whether
Public participation is a part of the 25, 2006, http://www.blm.gov/planning/ adequate NEPA analysis has already
BLM’s land use planning process, and news.html). The BLM determined a data taken place for a particular action. The
enables Responsible Officials to refine refinement was needed that would DNAs documented that additional
the details of their analysis before they facilitate gathering information on a review was not required, as adequate
finalize grazing decisions. However, a random basis regarding permits issued analysis had been presented in
Responsible Official is in the best during the period of 1999 through 2004. previously completed EISs. The BLM
position to compile, and consider in the Taking this consideration into account, then surveyed the field offices to review
first instance, the factors that are the BLM determined that the most valid the EIS analysis to determine first,
relevant to a grazing allotment in a and reliable method of review would be whether or not grazing permit issuance
proposed decision. Thus, the final rule to conduct a stratified random sample of itself had been predicted in the EIS to
and the new grazing CX provide for grazing permits issued, drawn from the result in significant effects and second,
public input, where most valuable, in BLM’s national Rangeland whether or not, in their professional
deciding management direction for Administration System (RAS) database. judgment, significant effects had in fact
public lands. Comments with respect to A Supplementary Analysis Report occurred as a result of the permitted
temporary non-renewable grazing
reflecting this refinement of information grazing. Ninety-four of the 458 permits
permits are moot in view of the BLM’s
regarding NEPA compliance in the in the sample, or approximately 20
decision to not finalize proposed CX
issuance of grazing permits, conducted percent of the sampled permits, had
11.9D(12).
Comment: Some comments ask the based on information in the RAS been issued under a DNA based on an
BLM to expand the grazing permit CXs database, in response to comments EIS. The BLM found that of these
11.9D(11) and (12) by ‘‘adding a received, and in consultation with CEQ, ninety-four permits, for five, significant
‘resource health activities’ component’’ is available at http://www.blm.gov/ effects had been identified within the
addressing ‘‘water developments, planning/news.html. Rather than the EIS, and for another one, significant
fences, etc.’’ 12,724 records of grazing permits issued effects had been documented (through
Response: The CX 11.9D(11) covers presented in the January 2006 Analysis the Land Health Assessment process) to
grazing permit activities where and Report, there are only 9,226 applicable have occurred. Therefore, on a weighted
when certain conditions are met, records in the RAS database for the basis, because these numbers were
including achievement of land health relevant time period, 1999 to 2004. based on a state-stratified random
standards, or documentation that the These total figures are different due to sample from the parent population in
existing livestock grazing is not a causal the differing recordkeeping methods of the RAS database, the BLM determined
factor if standards are not met. the BLM Field Offices on the one hand, that no more than 3 percent of total
Expanding the CX to include ‘‘resource and the national RAS database on the permits issued would have resulted in
health activities’’ as described by the other. Specifically, the BLM field significant impacts, either individually
comment would exceed the scope of the offices, when queried for the review or cumulatively, on the quality of the
administrative actions analyzed to reported in January 2006, had returned human environment. For the remaining
support the CX 11.9D(11). An analysis total numbers representing all permits 17 percent of the total permits issued
of the effects of implementing these processed during the relevant time (which used a DNA based on an existing
types of projects would need to occur period. The RAS database includes only EIS), the field offices reported that the
before a CX could be developed for those permits processed and actually resulting effects were not significant.
these activities. Proposed CX 11.9D(12) issued. Most importantly, the RAS Based on this review, the BLM is
is not being finalized. database identifies by office and state confident in its projection, that only a
Comment: Some comments state that each permit issued during that time- small percentage (no more than 3
the fact that most grazing permit EAs period. Thus, the RAS database percent) of permits issued would result
have resulted in FONSIs is insufficient provides an opportunity to conduct a in significant effects on the
evidence to demonstrate that EAs are state stratified random sample of the environment. This small percentage
unnecessary or the impacts are not permits issued during the relevant time would be screened out by
significant. period. The BLM determined from ‘‘extraordinary circumstance’’ review.
Response: The BLM disagrees. The review of the sampling of these 9,226 Therefore, based on the review of the
BLM established the CX based upon a records that 80 percent of grazing data presented in January 2006, as well
review of past environmental permits issued were issued based on as review of the refined data, the BLM
documents, including EAs and FONSIs. environmental assessments (EAs) concludes that in the absence of
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This review showed that in the resulting in Findings of No Significant ‘‘extraordinary circumstances,’’ the
overwhelming majority of cases, permit Impact (FONSIs). The BLM determined, issuance of a grazing permit does not
issuance did not result in significant based on monitoring, personal have a significant effect on the
impacts to the human environment, observation, and/or the professional environment, individually or
either individually or cumulatively. judgment of BLM rangeland specialists, cumulatively. Further, the BLM in the
Based on comments received in that as predicted by these FONSIs, establishment of CX 11.9D(11), has

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instituted a limitation for the use of this and the BLM conclusion that in the assessments. ‘‘Ground conditions’’ are
CX. This limitation is that the absence of ‘‘extraordinary evaluated in the land health assessment
Responsible Official must determine circumstances,’’ the actions covered process. Existing monitoring and
(and document the finding) either that under CX 11.9D(11) do not have inventory data and information gathered
land health standards are met, or that significant effects, individually or using the BLM approved techniques are
any failure to meet standards is not the cumulatively. Rather, the land health used to evaluate conditions in relation
result of existing livestock grazing. assessment requirement is an additional to the standards developed by the BLM
Comment: ‘‘The BLM has proposed to limitation the BLM is incorporating into state directors in consultation with their
revise its NEPA manual to categorically the CX 11.9D(11). This is in keeping respective Resource Advisory Councils
exclude most term grazing permits (516 with CEQ proposed guidance published as directed in 43 CFR 4180.2. Changing
DM 11.9D(11)) and most temporary non- at 71 FR 54816, September 19, 2006, the name on a permit does not change
renewable grazing permits (516 DM which emphasizes that CXs must clearly on-the-ground management or the
11.9D(12)) from analysis under NEPA. describe a category of actions, and effects of implementing the other terms
These proposed categorical exclusions should include physical and/or and conditions of the permit. The
are unlawful, unjustified, and ill- environmental factors that would modification of CX 11.9D(11) will
advised.’’ constrain its use. The purpose of a land assure that land health assessment
Response: The CEQ regulations health assessment is to determine the findings are considered when making an
implementing the NEPA authorize the status or condition of the land or grazing ‘‘administrative’’ change.
creation and use of CXs. The CEQ allotment. The rangeland assessment Comment: Some comments state that
encourages federal agencies to assess process is not intended to serve as an the federal courts have determined that
and act upon opportunities to increase analysis of impacts associated with a grazing permits significantly affect the
the NEPA efficiency by creating and particular management action, although human environment.
using appropriate CXs (40 CFR the condition of the land must be Response: In 1974, a federal court
1507.3(b)(2)(ii) and 1508.4: See also considered if the management action stated that ‘‘[t]he court is * * *
‘‘NEPA Lessons Learned Oversight potentially involves issuing a grazing persuaded that the grazing permit
Hearing, CEQ’’ testimony before the permit using the new grazing permit CX program produces significant impacts
House Committee on Resources Task (43 CFR 4180). The land health on individual locales. And when the
Force on Updating the NEPA Lessons assessment process comes into play as cumulative impact of the entire program
Learned, 2005). Based on comments a limitation on use of the CX because is considered, it is difficult to
received, the BLM took two actions: (1) application of the CX is limited to those understand how defendants-intervenors
The BLM dropped the proposed non- permits where allotments are can claim either that the impact of the
renewable grazing permit CX from determined to be meeting land health program is not significant or that the
further consideration under this manual standards, or if not meeting land health Federal action involved is not major.’’
revision; and (2) The BLM refined its standards, this is due solely to factors NRDC v Morton, 388 F. Supp. 829, 835
analysis of existing NEPA documents other than existing livestock grazing. If (D.D.C. 1974), aff’d, 527 F.2d 1386 (DC
associated with the issuance of grazing existing livestock grazing management cir 1976), cert. denied, 427 U.S. 913
permits (see above response), which had or level of use is determined to be a (1976). As a result of this ruling, the
been reviewed for the establishment of significant causal factor for failing to BLM agreed to (and did) analyze the
the 11.9D(11) and has further limited achieve standards, federal regulations effects of the BLM grazing program in
the situations in which the CX can be mandate that the BLM take appropriate over 140 local EISs covering
used. action to make significant progress approximately 160 million acres. The
Comment: Some comments state that toward achieving those standards (43 Interior Board of Land Appeals (IBLA)
the BLM is attempting to substitute the CFR 4180.2(c)). If the land health subsequently held in National Wildlife
NEPA environmental assessment assessment finds that standards are Federation v. BLM, 140 IBLA 85 (1997)
process with the rangeland health being met, the Responsible Official may that, in the Comb Wash allotment, the
assessment process, and by extension, fulfill obligations under the NEPA by general analysis for the LUP did not
that the BLM is assuming there will be using the grazing permit CX, provided provide adequate site-specific analysis
no significant environmental impacts if that, in accord with 40 CFR 1580.4, the of the effects of livestock grazing.
rangeland health assessment standards Responsible Official determines and Consequently, the BLM issued guidance
and guidelines are met. documents that none of the in Washington Office Instruction
Response: While land health ‘‘extraordinary circumstances’’ Memorandum 99–039 Attachment 3
assessments are part of the process of (described in 516 DM 2.3A(3) and explaining that existing NEPA
determining the applicability of the appendix 2) applies. documentation should be reviewed to
grazing permit CX 11.9D(11), the BLM is Comment: Some comments state that determine if adequate analysis had
not substituting land health assessments administratively allowing the names on already been completed, and where
for NEPA compliance. The CX was a permit to change, but ‘‘the terms of the existing documents were not adequate,
established based on an initial review of permit to continue unchanged’’ without adequate NEPA documents should be
the NEPA documents, for the processing further analysis is ‘‘inconsistent’’ under developed. The BLM Responsible
of grazing permits, reported by the BLM NEPA and negates an opportunity to Officials have instituted these
state offices in January 2006. As look at ground conditions. directives. Based on comments received
described above, a further refinement Response: The BLM deleted part (b) of in response to the January 2006
and review of data on grazing permit CX 11.9D(11) to clarify the intent of the proposal to establish new CXs, as
issuance, conducted in October through CX to require completion of a land explained above, the BLM refined its
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December 2006, revealed that, on the health assessment before application of review and analysis of NEPA documents
whole, issuance of grazing permits does a CX could be considered. Therefore, associated with all grazing permits
not result in significant effects, administrative changes such as changes issued in 1999 through 2004 (9,226
individually or cumulatively, on the of names on grazing permits are subject projects). See the data refinement
quality of the human environment. See to CX 11.9D(11) and its criteria discussion above. Approximately 80
discussion of this data refinement above involving the completion of land health percent of the 9,226 grazing permits

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issued from 1999 through 2004 were would have been eligible for use of the (weighted, based on a state-stratified
based on EA/FONSIs. The remaining 20 new CX, because land health random sample), only 3 percent were
percent of permits sampled used a DNA, assessments had shown that land health found to have resulted in a significant
which indicated an existing EIS standards were not being met in any of effect, either individually or
represented sufficient analysis to the allotments—generally because of cumulatively. The CX would not have
support issuance of the grazing permit. grazing. Further, the BLM believes that been considered for use with those
In addition to the review of the NEPA existing NEPA compliance procedures actions found to have significant effects,
documents, BLM specialists used would have rendered the proposed as one or more of the ‘‘extraordinary
monitoring, personal observation and/or actions involved in the Western circumstances’’ would have applied.
professional judgment to evaluate the Watersheds Project v. Bennett case The BLM concluded, based on this
permitted grazing. This evaluation of ineligible for the new grazing permit CX evidence, that the issuance of grazing
the NEPA documents and any actual 11.9D(11) based upon review of the permits is an action that does not have
impacts not anticipated in the NEPA ‘‘extraordinary circumstances.’’ a significant impact on the human
documents revealed that significant Specifically, ‘‘extraordinary environment, either individually or
impacts were estimated to be (weighted, circumstance’’ 516 DM 2 appendix 2.8 cumulatively. This is in accord with the
on the basis of a state-stratified random would have applied. This extraordinary CEQ proposed guidance on the
sample), at most, 3 percent of the circumstance applies when a proposed establishment of CXs (See 71 FR 54,816,
permits issued between 1999 and 2004, action may have significant impacts on September 19, 2006). Use of this CX in
with a high degree of certainty. The species listed, or proposed to be listed, light of an ‘‘extraordinary
BLM believes the ‘‘extraordinary on the List of Endangered or Threatened circumstances’’ review provides a
circumstances’’ review would preclude Species, or have significant impacts on further safeguard that significant
use of CX 11.9D(11) in similar designated Critical Habitat for these impacts will be avoided. The BLM
circumstances. Establishment and species. believes additional analysis of the type
appropriate use of the grazing permit CX Comment: The same comments state requested is not required.
11.9D(11) is warranted based on the that ‘‘[I]t is likely that many of the EAs Comment: Some comments state that
analysis described above and in the and FONSIs tabulated in [the ‘‘CX the proposed revisions to the grazing
Supplementary Analysis Report. Project—Grazing Permit’’ Analysis permit process remove environmental
Establishment and appropriate use of Report] were not subject to challenge by safeguards by reducing the amount of
the CX is also warranted in the context environmental, conservation, or wildlife information needed.
of the BLM administrative procedures interests. Experience has shown that, Response: In order to establish the
such as the BLM Qualifications and when subject to administrative or grazing permit CX, the BLM reviewed
Preference Handbook (H–4110–1), the judicial challenge, a high percentage of NEPA analyses completed in the
state-specific standards and guidelines, the BLM’s FONSIs for grazing permits process of issuing 12,724 permits over a
and the specific terms and conditions are found to be unlawful. If more had five-year period and then, as explained
identified within local LUPs. The been challenged, it is likely that many above, further refined this analysis by
extraordinary circumstances review more of the FONSIs would have been sampling 9,226 permits identified in the
provides additional protections to overturned and environmental impact RAS database. These permits were
prevent the issuance of permits through statements (EISs) would have been processed regardless of whether or not
a CX when significant individual or required.’’ land health assessments had been
cumulative impacts are likely to occur. Response: These comments are completed for the relevant allotments.
Comment: Some comments state that speculative in nature. An administrative The results of that review show that
the statistics presented in the ‘‘CX or judicial challenge to a particular EA impacts to the human environment from
Project—Grazing Permit’’ analysis report and FONSI may result in a ruling that, the issuance of grazing permits are not
posted at http://www.doi.gov/oepc/ for example, an agency failed to take a significant, either individually or
cx_analysis.html and http:// hard look in a particular instance. cumulatively. The CEQ regulations
www.blm.gov/planning/news.html are However, it is unreasonable to assume support the establishment of a CX in
‘‘extraordinarily misleading’’ because that EAs and FONSIs that were never circumstances where the review of data
they fail to reveal the multiple instances protested or appealed were unlawful. shows that impacts of a particular action
in which the federal courts or DOI Comment: The same comments ask have not been significant, either
administrative law judges have found the BLM to ‘‘survey the EAs that have individually or cumulatively. Not only
that the BLM violated NEPA by failing been prepared for grazing permits to does the required review of the
to prepare an EIS. The example cited determine the nature and scope of the ‘‘extraordinary circumstances’’ provide
was Western Watersheds Project v. information and analysis that they have a safeguard when using the CX, but also
Bennett, 392 F. Supp. 2d 1217 (D. Idaho contained and the public comment that the specific criterion that a land health
2005). they have engendered.’’ assessment must have been completed,
Response: These comments highlight Response: The BLM reviewed data and result in a certain finding, provides
a case in which the court found that the relating to the NEPA documents for an additional safeguard at the outset.
BLM had erred in preparing four EAs grazing permits that were completed in This is in keeping with CEQ proposed
associated with four grazing permits for 1999 through 2004. CX 11.9D(11) has guidance published at 71 FR 54816,
28 grazing allotments in the Jarbidge been established based on the finding September 19, 2006, which emphasizes
Resource Area in Idaho. The BLM that the overwhelming majority of these that CXs must clearly describe a
should instead have prepared a single NEPA documents (EAs prepared in category of actions, and should include
NEPA document covering all four accordance with CEQ regulations and physical and/or environmental factors
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permits. It is speculative to suggest that agency guidance) resulted in FONSIs that would constrain its use. As part of
this finding undermines the BLM’s and subsequent BLM review of the the CX criteria, land health assessment
analysis of thousands of permits. actual effects of grazing confirmed this and evaluation information and status
Moreover, a careful reading of the prediction. For those proposed permits are considered. The evaluations are
court’s opinion reveals that none of the for which a DNA reflected the prior based on existing inventory and
grazing decisions at issue in that case completion of adequate NEPA, at most monitoring information, data collected

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using BLM-approved methods, and, if regulations in 43 CFR 4180.2. These percent) grazing permits issued, that did
appropriate, information provided by regulations require action to change or may have (projecting on the basis of
other sources, such as other agencies, existing grazing if the Responsible the sample reviewed) result(ed) in
permittees, or the interested public. The Official finds that current livestock significant effects, the BLM’s NEPA
grazing CX cannot be used unless the grazing is a significant cause for ‘‘failing review procedures that are in place to
specific CX criteria are met and none of to achieve the standards.’’ The reference review proposed actions against the
the ‘‘extraordinary circumstances’’ to ‘‘not meeting land health standards DOI’s ‘‘extraordinary circumstances’’
applies. solely due to factors other than existing would have rendered the actions that
Comment: Some comments correctly livestock grazing’’ follows from the did result in a significant effect as
assume that rangeland health ‘‘Land same regulatory requirement, but is ineligible for CX consideration. The
Health’’ assessments only look at a somewhat more restrictive than the BLM believes that for issuing grazing
limited set of environmental concerns language in the regulations, in that the permits in the future, the review of the
covered by the NEPA. These same CX may only be used when existing ‘‘extraordinary circumstances’’ will
comments express concern that impacts livestock grazing is not at all a identify significant unresolved issues
on certain resources covered by the contributing factor for failure to achieve related to grazing use. When any of the
NEPA (e.g., archeological sites) are not standards. Assessments and evaluations ‘‘extraordinary circumstances’’ apply, a
specifically evaluated and use of CXs are not arbitrary concepts; they are the CX cannot be used even if land health
(11.9D(11)&(12)) will preclude means for determining whether standards are met. The BLM has placed
appropriate consideration of resources standards are achieved and identifying a limitation on the use of the CX
not included in land health the causal factors for ‘‘failure to 11.9D(11), which only allows
assessments. achieve.’’ If standards are not achieved consideration of the grazing permit CX
Response: Use of the grazing CX because of another activity, then that when an allotment is meeting land
11.9D(11) requires review against the activity needs to be addressed (BLM health standards or is not meeting land
list of ‘‘extraordinary circumstances.’’ Rangeland Health Standards Manual health standards for reasons other than
Two of the ‘‘extraordinary 4180). For example, during the course of livestock grazing. As explained above,
circumstances,’’ 516 DM Ch appendix a land health assessment the BLM could the inclusion of this limitation is in
2.2 and 2.7, ensure that ‘‘cultural determine that the amount of dead and accord with CEQ proposed guidance
resources’’ will not be affected by the down woody material in an area of published at 71 FR 54816, September
proposed action; therefore, impacts to forested lands is causing an unnatural 19, 2006.
cultural resources are not overlooked build-up of fuels and that the resulting Comment: Some comments state that,
when a grazing permit is processed potential for a severe wildfire is an ‘‘ ‘and health standards’ evaluations are
through CX 11.9D(11). In addition, use indication that the land is failing to not conducted often enough and get
of the CX (or any CX) does not eliminate meet one or more of the land health outdated quickly when drought, fire,
the need to comply with statutes such standards. In this example, the inter- and other circumstances occur. This is
as Section 106 of the National Historical disciplinary team determines that particularly problematic when a [non-
Preservation Act and the Archeological livestock grazing is not a contributing renewable permit] is to be issued.’’
Resource Protection Act (1979). factor to the unnatural build-up of Response: The grazing permit CX
Comment: Some comments question woody fuels that resulted in non- 11.9D(11) cannot be used if land health
some of the key terms and concepts in achievement of the standard. This is one standards have not been assessed or
the grazing permit CXs 11.9D(11)&(12): example of a situation where changes evaluated, and the evaluation team is
(1) ‘‘Assessed and evaluated,’’ (2) in, or denial of a grazing permit/lease responsible for the adequacy of the
‘‘meeting land health standards,’’ and would not influence attainment of the information. As discussed above, the
(3) ‘‘not meeting standards solely due to land health standard(s). non-renewable grazing CX 11.9D(12) is
factors other than existing livestock Comment: Some comments state that not being finalized. No grazing permit
grazing’’ are arbitrary, and ‘‘ [N]ot the BLM’s ‘‘land health standards are can be issued under CX 11.9D(11)
meeting standards solely due to factors not sufficiently demanding’’ to prevent unless CX criteria are satisfied and none
other than existing livestock grazing’’ is significant environmental impacts or to of the ‘‘extraordinary circumstances’’
an admission that ‘‘the land is in poor restore degraded lands. The ‘‘bar for (516 DM 2.3A(3) and appendix 2)
condition.’’ The comments go on to say, compliance is pretty low and * * * applies.
‘‘[I]f the land is already degraded, the most * * * [allotments] routinely pass Comment: Some comments state that
approval of a lease, absent any NEPA * * * regardless of condition.’’ the new grazing permit CXs ‘‘would
review, will only further devastate the Allotments can ‘‘meet land health permit inappropriate grazing * * * to
land and result in substantial standards’’ and still ‘‘have important pollute streams and watersheds * * *. ’’
environmental impacts.’’ and unresolved resource issues which Response: The CXs, EAs, FONSIs, and
Response: In keeping with CEQ are more likely to be ignored in a CX EISs do not ‘‘permit’’ grazing or any
proposed guidance published at 71 FR than an EA.’’ other activity on public lands, they
54816, September 19, 2006, which Response: Based on the data analyzed document fulfillment of procedural
emphasizes that CXs must clearly for establishment of the grazing CX requirements under the NEPA. When
describe a category of actions, and 11.9D(11), as explained above, 80 the proposed action consists of a permit,
should include physical and/or percent of the NEPA documents lease, or other grazing authorization, the
environmental factors that would prepared in support of issuing grazing NEPA compliance for these actions
constrain its use, the land health permits predicted no significant effect cannot end with a CX unless an
standards serve as a screen to ensure on the quality of the human authorized officer (Responsible Official)
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that the grazing CX is considered for use environment, and subsequent BLM has completed a land health assessment
only where land health standards are review of the actual effects of grazing for the relevant allotment, and has
being met or if not being met, the cause confirmed this prediction, regardless of concluded that the 43 CFR 4180
is not existing livestock grazing use. The whether the allotment for which the standards for grazing administration are
concept of ‘‘meeting land health permit was issued had undergone a land being achieved. Since all state and
standards’’ is derived from grazing health assessment. For the (at most 3 regional standards address water quality

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and other ecological criteria, the BLM is considering issuance of individual permits issued between October 1, 1999,
confident that the use of CXs will not grazing permits, the Responsible Official and September 30, 2004. Based on this
result in the pollution of streams and must consider the DOI ‘‘extraordinary comment, as well as consultations with
watersheds. circumstances.’’ If ‘‘extraordinary CEQ, the BLM further refined its
Comment: Some comments say that circumstance’’ 516 DM 2.3A(3) and analysis, reviewing data from the RAS
rangeland health ‘‘land health’’ appendix 2.6, regarding significant database, the official source of grazing
assessments do not address the cumulative impacts applies, the grazing administration data for the BLM, instead
cumulative impacts of grazing on CX cannot be used, and an EA or EIS of from individual state reports, as were
multiple allotments. would be prepared. used in the January 2006 analysis
Response: The land health Comment: Some comments viewed report. Use of the information in the
assessments are not meant to replace the the revisions as enabling ‘‘unsustainable RAS database provided the BLM with
NEPA analysis and do not directly grazing permits.’’ an appropriate set of data from which to
address cumulative impacts. As Response: It is unclear what is meant draw a stratified random sample for
explained above, in accordance with by ‘‘unsustainable grazing permits.’’ In analysis. See the refined analysis report
CEQ proposed guidance (71 FR 54816, the context of the Federal Land Policy at http://www.blm.gov/planning/
September 19, 2006), which and Management Act, 43 U.S.C. 1701 et news.html. This refinement of the data
recommends that categorical exclusions seq. (FLPMA), the BLM is required to
on grazing permits resulted in 9,226
should clearly define a category of administer public lands for multiple use
records, rather than the 12,724
actions, as well as any physical or and sustained yield. The BLM grazing
presented in the January 2006 Analysis
environmental factors that would permits are managed in accordance with
Report. This review based on the
constrain its use, the BLM has FLPMA, the Taylor Grazing Act, 43
information in the RAS database
incorporated this limitation as criteria U.S.C. 315 et seq., and the Public
for the use of the CX in relation to Rangelands Improvement Act, 43 U.S.C. ensured that only records of permits
issuance of a grazing permit. The land 1901 et seq. An element of this actually issued, not just processed, were
health assessment would serve as a management is a requirement to being reviewed and eliminated the
‘‘screen’’ to determine if a CX might be authorize grazing permits that do not possibility of inappropriate inclusion of
considered for issuing a grazing permit. preclude achievement of land health those permits issued pursuant to
The land health assessment process standards, consistent with these specific congressional authorization,
identifies whether or not the land health statutory mandates. The grazing CX regardless of completion of the NEPA
standards are being achieved, and if 11.9D(11) is being established based on process (see Pub. L. 108–108, Section
they are not achieved, the causal factors evidence that grazing decisions do not 325, 117 Stat. 1307–1308 (2003)). The
are identified. Therefore, they do result in significant impacts to the BLM determined from review of these
provide useful information about environment, either individually or 9,226 records that 80 percent of grazing
whether grazing is contributing to non- cumulatively. The BLM data show that permits issued were issued based on
achievement of one or more of those the predictions represented by the EAs EAs resulting in FONSIs. Further, the
standards. Cumulative impacts of that resulted in FONSIs were confirmed BLM determined, based on monitoring,
grazing on multiple allotments are often by BLM professionals through personal observation, and/or
analyzed at the LUP allocation level monitoring, personal observation and/or professional judgment by BLM
under an EIS or EA, but that analysis professional judgment. The grazing CX rangeland specialists, that, as predicted
may also occur within a more program 11.9D(11) can be used only for those by these FONSIs, permitted grazing
specific NEPA document. Individual permits being issued for livestock resulted in no significant effects, either
grazing permits can be issued within the grazing on allotments where land health individually or cumulatively. This
scope of such LUP NEPA analysis and/ standards are achieved under existing methodology for supporting
or appropriate program specific NEPA grazing management, or where a establishment of CXs is consistent with
analysis. Issuance of the grazing permit Responsible Official finds that standards the CEQ’s proposed guidance for the
would be based on the resource are not achieved due to factors that do establishment of CXs (See 71 FR 54,816,
allocation of the LUP or other program- not include existing livestock grazing. If September 19, 2006). For the remaining
specific plan. Any additional mitigation standards are not met and current 20 percent of grazing permits issued, in
measures or other restrictions in grazing livestock management is one of several the majority of cases, the DNA review
use, prescribed in the NEPA analysis activities contributing to the non- documented that additional NEPA
that addressed cumulative impacts achievement of the standards, a grazing review was not necessary. The issuance
associated with grazing, would be permit cannot be issued using the new of the permits had been adequately
incorporated in the grazing permits grazing permit CX, and an EA or EIS analyzed in an existing EIS prepared in
issued within the scope of that NEPA must be prepared unless the permit is the course of the land use planning
analysis. As explained above, based on withdrawn. Further, any use of a grazing process or specifically prepared to
the data analyzed for establishment of CX would require review against the address grazing issues. The BLM
the grazing CX 11.9D(11), 80 percent of ‘‘extraordinary circumstances,’’ and if concludes from this review that, in
the NEPA documents associated with one applies, a CX cannot be used, and general, the issuance of grazing permits
issuing grazing permits resulted in a an EA or EIS would be prepared. results in no significant impacts and
FONSI. That is, the evidence showed Comment: Some comments state that establishment of a CX is warranted. The
that the action of issuing grazing the analysis methods were not BLM believes that ‘‘extraordinary
permits was predicted not to result in sufficiently disclosed which means the circumstances’’ review will capture
significant impact to the human data set and the data interpretation those instances for which additional
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environment, either individually or could be flawed. NEPA review will be necessary, such as
cumulatively and BLM specialists Response: As stated in the analysis the 3 percent (weighted, on the basis of
through monitoring, personal report, available at http://www.blm.gov/ a state-stratified random sample
observation and/or professional planning/news.html, the data analyzed analysis) of permits issued in
judgment confirmed these predictions. included a review of 12,724 NEPA conjunction with a DNA prepared on
As an added safeguard, when documents associated with grazing the basis of an existing EIS, for which

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significant impacts were either permit CXs to allow changes to the same as that previously authorized
predicted to occur, or though not authorized grazing activities that might (same kind of livestock, the active use
predicted, were observed (during the improve ground cover, soil stability, and is not exceeded, and the grazing season
land health assessment process) to have other conditions to reduce conflicts is not more than 14 days earlier or later
occurred. In this regard, the results of with other resource uses. than the use authorized on the previous
the additional data calls conducted in Response: The BLM’s purpose in permit/lease). Second, the land health
October 2006, as reflected in the establishing CX 11.9 D(11) is to expedite standards must be met or if the
Supplemental Analysis Report, are the permit issuance process where the standard(s) are not met, this can only be
consistent with the results originally environmental impacts have been due to factors that do not include
presented in the Analysis Report shown not to be significant, either existing livestock grazing. If the permit
published in January 2006, which individually or cumulatively. In action is ineligible under these criteria,
showed that in only a few cases (0.2%) appropriate circumstances, it may be then grazing permit CX 11.9D(11)
did issuance of grazing permits/leases possible to apply the CX to cannot be used. As mentioned above,
require preparation of a new EIS modifications (e.g. reduced level of CX 11.9(D)(12) is not being finalized
because of specific resource reasons. grazing) that might improve ground through this action.
Comment: Some comments ask cover, soil stability, and other Comment: Some comments identify
whether any land health assessments conditions to reduce conflicts with ‘‘six resources categories’’ that are
are based on ‘‘observations’’ alone other resources so long as the terms of adversely affected by livestock grazing
(ocular estimates). Other comments the CX are met and the overall effects of and its associated infrastructure
express an opinion that ‘‘[o]cular the livestock grazing permit do not (facilities), which they state are not
monitoring to determine the range result in an inability to meet land health addressed by land health standards. The
condition and trend makes management standards. Further, a CX may only be six categories they identified are
[of grazing permit decisions based on used when none of the ‘‘extraordinary archeological sites, wilderness, scenery,
observations alone] arbitrary and circumstances’’ applies. If any of the recreational opportunities, wildlife
capricious.’’ ‘‘extraordinary circumstances’’ applies, other than listed and ‘‘sensitive’’
Response: The BLM does not use then the proposed action (including the species, and natural surface water
exclusively qualitative (i.e. ‘‘ocular’’ or actions listed in the comment) may sources. They contended that, if the
‘‘observational’’) methodology to require preparation of an EA or EIS. grazing permit CXs 11.9D(11)–(12) are
determine trend. The BLM’s Rangeland Because the proposed CX 11.9D(12) is adopted, analysis and consideration of
Health Standards Handbook (H–4180–1) not being finalized through this action, the impacts on these resources would
provides guidance on using qualitative the potential applicability of proposed never occur on any allotment that meets
(‘‘observational’’) and quantitative CX 11.9D(12) will not be addressed minimal standards for land health.
information to determine the status of here. Response: Water quality and wildlife
land health. In addition, the BLM’s Comment: Some comments state that habitat standards are addressed in all
Technical Reference, Interpreting the grazing permit CXs 11.9D(11)–(12) the sets of state or regional land health
Indicators of Rangeland Health, Version will ‘‘allow the BLM to issue a permit standards. Two of the six resources
4 (TR1734–6) describes land health for any number or type of livestock, for mentioned in the comment (archeology
assessment protocols, developed any season, [for any given time period], and wilderness) are specifically
through an interagency process, which with (or without) any terms and addressed in the ‘‘extraordinary
have received interdisciplinary review. conditions, without performing any circumstances’’ found in 516 DM 2,
TR 1734–6 identifies limitations for analysis pursuant to NEPA.’’ appendix 2.2. In addition, appendix 2.2
using the results derived from the Response: The CEQ regulations refers to recreation, wild and scenic
qualitative (‘‘ocular’’/‘‘observational’’) provide that NEPA obligations can be rivers, national natural landmarks, sole
process. For example, TR 1734–6 states fulfilled using categorical exclusions (43 or principle drinking water aquifers,
that the qualitative process described in CFR 1507.3 and 1508.4). The CX wetlands, floodplains, migratory birds,
the document is not suited to detecting 11.9D(11) has been established based on and other ecologically significant or
land health condition trends. review of analyses of NEPA documents critical areas. ‘‘Infrastructure’’ that
Qualitative methods are appropriate for completed in the process of issuing facilitates management of livestock
certain purposes, but quantitative data grazing permits. This review showed grazing is not addressed in the CX. Such
are needed to detect and statistically that in the vast majority of cases, this infrastructure (also known as ‘‘range
validate trends. When an assessment is action of issuing a grazing permit improvements’’) would be addressed in
done, existing monitoring data are resulted in a FONSI and that as AMPs and project proposals and would,
evaluated. This data can be the result of described above, only a very small in accordance with 43 CFR 4120.3–1(f),
either quantitative or qualitative percentage (3 percent, weighted, as receive appropriate NEPA review
methods. Where these data do not based on a state-stratified random separate from CX 11.9D(11).
address all of the standards, the BLM sample) resulted in significant effects. Comment: Some comments state that
employs the processes described in TR The BLM believes that ‘‘extraordinary rangeland health ‘‘land health’’
1734–6 to assess conditions. Within the circumstances’’ review would have assessments fail to address many
limits described in this TR 1734–6, precluded use of the CX in the significant impacts of grazing.
qualitative approaches, such as ocular circumstances represented by this small Response: Land health assessments
or observational methods, are important percentage of instances. The BLM are not intended to analyze the impacts
tools for assessing conditions, but not concluded based on its review of the of grazing, but to determine the existing
trends. resulting effects of the grazing permit condition of the public land in
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Comment: Some comments ask that issuance action that, in the absence of comparison to the land health standard.
management alternatives that could ‘‘extraordinary circumstances,’’ there If the Responsible Official determines
improve land health conditions not be are no significant effects, individually or that land health standards are not being
excluded from the new grazing permit cumulatively. Use of this CX is achieved, a determination is made
CXs 11.9D(11)–(12). These comments specifically limited in two ways. First, regarding the significant causal factor(s).
recommend modifying the new grazing the permitted use must be basically the If the Responsible Official finds that

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current livestock grazing management or process is described in the BLM’s Responsible Official has discretion to
levels of use are significant causal Rangeland Health Standards Handbook determine, consistent with BLM
factors for failure to achieve land health (H–4180–1) available at the BLM’s Web guidance, what data is sufficient to
standards, they are directed by site http://www.blm.gov/nhp/efoia/wo/ support a finding.
regulation (43 CFR 4180.2) to take fy01/im2001-079.html. Comment: Some comments state,
appropriate action to make significant Comment: Some comments ask the ‘‘* * * there is significant variation in
progress toward achieving the BLM to include a ‘‘requirement as to the land health standards and how they are
standard(s) not achieved. The issue of [currency and] quality of the data applied between [f]ield [o]ffices. Only in
whether there are any significant involved’’ to ensure that the BLM is an EA or EIS can the public be ensured
impacts from the BLM-permitted ‘‘employing the Best Available that the BLM is using current and
grazing is addressed pursuant to Science.’’ adequate science.’’
compliance with the NEPA at the time Response: CEQ regulations at 40 CFR Response: Federal Regulations (43
permits are issued. Use of a CX, like the 1502.22 and 1502.24 include CFR part 4180) and policy in the BLM’s
grazing CX 11.9D(11) is a method of requirements that an EIS include Rangeland Health Standards Handbook
complying with the NEPA (see 40 CFR ‘‘credible scientific evidence’’ (1502.22), (H–4180–1) provide for variation in land
1500.4(p); 40 CFR 1500.5(k); 40 CFR and that ‘‘agencies shall ensure the health standards and how they are
1507.3; and 40 CFR 1508.4). As professional integrity, including evaluated because of inherent variability
explained above, the grazing CX scientific integrity of discussions and among the ecosystems in the states
11.9D(11) has been established based on analyses in environmental impact where the BLM manages public land.
the results of a review of NEPA statements.’’ (1502.24). The BLM For example, the Sonoran Desert is
documents associated with the issuance conducts its environmental reviews and significantly different than the Snake
of grazing permits over a five-year analyses in accordance with guidance River Plain. Responsible Officials have
period and the subsequent BLM review contained in programmatic handbooks discretion to determine, consistent with
of the actual effects of grazing confirmed and technical references to ensure the BLM guidance, how to determine land
this prediction. The review shows that professional integrity of the information, health status and causal factors where
this category of actions (issuing permits) discussions, and analyses. For example, standards are not achieved. Further
has no significant impact on the human the BLM’s Rangeland Health Standards information regarding the
environment, either individually or Handbook (H–4180–1) provides methodologies employed may be found
cumulatively and would not normally direction for collecting and evaluating at the BLM’s National Science and
warrant preparation of an EIS or EA. information used in determining the Technology Center at http://
Land health assessments are not the status of land health. The BLM’s www.blm.gov/nstc/library/techref.htm.
only screen for determining whether the Rangeland Health Standards Handbook The public has opportunities outside
grazing CX 11.9D(11) may be used. The (H–4180–1) contains a lengthy the NEPA process to review information
‘‘extraordinary circumstances’’ also discussion of the availability and used as the basis for grazing decisions,
provide screening for application of the adequacy of existing data including including scientific information. For
CX. factors such as the age, scale, and example, the Grazing regulations at 43
Comment: Some comments ask these appropriateness of the data to be used. CFR 4130.3–3(b) direct: ‘‘To the extent
questions: ‘‘What is the required time Professional judgment may be used to practical, during the preparation of
period and nature of the assessment?’’ draw conclusions where quantitative monitoring reports that evaluate
‘‘Is it a detailed FRH [Fundamentals of data does not lead to definitive monitoring and other data that the
Rangeland Health] assessment or a conclusions; but the reasoning behind Responsible Official uses as a basis for
cursory review by a BLM team?’’ the use of professional judgment should making decisions to increase or decrease
Response: An assessment consists of a be documented. The interdisciplinary grazing use, or otherwise to change the
review of existing monitoring and team evaluating the land health terms and conditions of a permit or
inventory data, and a review of the standards is also responsible for the lease, the Responsible Official will
status of selected indicators using BLM adequacy of the available information. If provide [the interested public] an
TR 1734–6. The assessment may include the interdisciplinary team concludes opportunity to review and offer input.’’
a collection of new monitoring data that there is inadequate information Comment: Some comments pointed
when there is inadequate information to available to evaluate the land in light of out ‘‘there is still a backlog of permits
make a determination of status or causal the standards, then they are directed to that have not received an original
factors for non-achievement. In 1998, begin gathering the information needed. NEPA, as well as a growing number of
the BLM directed State Offices to Various BLM technical references, such permits that are being renewed without
develop a strategy to complete an as TR 1730–1 ‘‘Measuring and an updated NEPA.’’
assessment of current conditions in Monitoring Plant Populations,’’ TR Response: At present, Congress has
relation to land health standards and to 1730–2 ‘‘Biological Soil Crusts: Ecology authorized the BLM, under
strive to assess about 10 percent of their and Management,’’ and TR 1734–4 Appropriations legislation (Pub. L. 108–
land each year. Washington Office ‘‘Sampling Vegetation Attributes’’ 108, Section 325, 117 Stat. 1307–1308
Instruction Memorandum No. 98–91 provide descriptions of the approved (2003)), to issue grazing permits with
provided direction to assess high techniques for collecting data. These the same terms and conditions as
priority areas first. The Responsible technical references are available at the expiring permits for which NEPA
Official usually determines the level of BLM’s National Science and Technology review has not been completed. Section
intensity of the assessment based on Center at http://www.blm.gov/nstc/ 325 provides: ‘‘the terms and conditions
issues, availability and currency of library/techref.htm. As new information shall continue in effect under the
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existing inventory and monitoring data, becomes available, it may be considered renewed permit or lease until such time
and amount of information needed to for incorporation into public land as the Secretary of the Interior * * *
make a determination of status and, if management policies and technical complete[s] processing of such permit or
necessary, to determine causal factors references. When determining in what lease in compliance with all applicable
where land health standards are not circumstances to use a CX or an laws and regulations, at which time
achieved. The land health assessment environmental document, the such permit or lease may be canceled,

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suspended or modified, in whole or in by adopting the CXs 11.9D(11)–(12), the Responses to Specific Comments on
part, to meet the requirements of such public will be unable to protest or Section 11.9—Categorical Exclusions
applicable laws and regulations.’’ The appeal administrative decisions made
G. Transportation (Sub-Parts G(1)–(4))
BLM refers to permits issued in by the BLM.
accordance with this law as ‘‘backlog’’ Response: The BLM was conducting G(1)–(3)—Comments.
permits until they are processed as site-specific NEPA analyses in the early Comment: Some comments state that
required. Between the beginning of 1970s to facilitate informed decisions on the modified transportation CXs
Fiscal Year 1999 and end of Fiscal Year the development and implementation of 11.9G(1)–(3) make no distinction among
2005, almost 15,000 permits and leases grazing AMPs. Implementation of the motorized, mechanized, and foot/horse
had expired. The BLM has processed all proposed revisions to the NEPA trails, or between authorized and
of these, except for 2610, which are in management process will not affect unauthorized roads and trails.
‘‘backlog’’ status. For purposes of this Response: The comments are correct.
‘‘interested public’’ or ‘‘affected
action, when the BLM is completing These CXs do not address the type of
interests’’ right to protest and appeal
NEPA review and documentation, the use authorized on a road or trail. Trail
BLM grazing decisions, including
Responsible Official will consider use is authorized through the land use
decisions made following the CX review
application of CX 11.9 D(11) for planning process. These CXs address
process (43 CFR part 4160).
issuance of grazing permits when the actions, which take place following this
Comment: The same comments
specific CX criteria are met and none of planning process, and are primarily
express concern that, if the new grazing concerned with identification within a
the DOI ‘‘extraordinary circumstances’’ permit CXs 11.9D(11)–(12) cover
applies. Consideration of whether or not transportation plan, routine
administrative actions, such as changing maintenance or temporary closures.
to use the CX will facilitate reduction of the termination date of the permit, site-
the ‘‘backlog.’’ Further, the Responsible Official
specific environmental analyses will not reviews each proposed action as to
Comment: Some comments state that be conducted for grazing allotments that
the ‘‘BLM does not have the whether any of the ‘‘extraordinary
have yet to be given the benefit of a site- circumstances’’ in 516 DM 2.3A(3) and
institutional resources to properly specific review.
[collect current ecological site data, or] appendix 2 apply. If any ‘‘extraordinary
Response: The BLM deleted part (b) of circumstance’’ applies, the revised
manage and employ a monitoring CX 11.9D(11) to clarify the intent of the
program that can correctly assess what transportation CXs 11.9G(1)–(3) may not
CX to require completion of a land be used.
is actually occurring.’’ health assessment before application of
Response: The ‘‘correctness’’ of the Comment: Some comments state that
a CX to a specific allotment described in the BLM fails to account for important
BLM’s assessments is a matter that can
the permit could be considered. differences between roads and trails.
be questioned on a case-by-case basis
Therefore, the CX 11.9D(11) may only Response: The BLM guidance
under 43 CFR 4130.3–3(b) (‘‘To the
be used for administrative changes such (Washington Office Instruction
extent practical, during the preparation
of reports that evaluate monitoring and as changes of names on grazing permits, Memorandum No. 2006–173) defines
other data * * * the authorized officer if the specific criteria for use of the CX similar routine management and
will provide [the interested public] an 11.9D(11) are met. Use of the CX in maintenance requirements for roads and
opportunity to review and offer input.’’) issuing such permits would be subject trails. Engineering, design and signing
Development and implementation of a to the reviews included in the CX requirements are consistent between
monitoring program is an issue that is limitation involving the completion of roads and trails, and should be
separate from the establishment of a CX. land health assessments as well as the consistently addressed in the NEPA
See responses above for responses to consideration of whether any context. Trails, like roads, require
questions specifically regarding the ‘‘extraordinary circumstances’’ apply. maintenance (e.g., erosion control,
establishment of CX 11.9D(11). That The BLM has decided not to finalize CX stabilization, and signs) and are
said, regardless of whether a proposed 11.9D(12). periodically closed for safety or resource
activity is reviewed under an EA, EIS or Comment: Some comments state that protection purposes. The major
CX, the BLM monitors the effects of the ‘‘administrative action’’ is inadequately difference between roads and trails is
activities to the extent its budget allows. defined, and therefore, could be their spatial footprint and degree of
Monitoring data is used in land health construed ‘‘to include all BLM actions.’’ infrastructure design, which is less for
assessments when it is available, but is Response: This comment refers to trails than for roads. With respect to
not required. The BLM’s program proposed CX 11.9D(12), which the BLM trail location and design, as with respect
management and associated staffing has decided not to finalize. to roads, the BLM considers resource
decisions regarding the monitoring of Comment: Some comments state that conditions in design and placement
effects of actions taken are subject to the the BLM is issuing grazing permits for decisions. The BLM’s State Trails and
appropriations process. less than market value. Travel Management Leads confirmed
Comment: Some comments state that Response: The comment has no that, based upon their past observations
the BLM did not begin site-specific bearing on the adoption of CXs. and professional experience,
NEPA for grazing management until the Comment: Some comments state that implementation of past actions covered
1990s. They cite the IBLA decision in the BLM should revise the CXs to be under the existing CX did not result in
Oregon Natural Resources Council v. more specific relative to the stipulation significant effects, individually or
BLM, 129 IBLA 269 (1994) where relating to livestock being ‘‘solely’’ cumulatively. In addition, the BLM’s
extending a permit’s termination date or responsible for the failure to meet land Trails and Travel Management Leads
changing the name of the permit holder health standards. agreed that based on their experiences,
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constitutes an action requiring notice Response: The language for CX the environmental effects of these
and opportunity to protest. The decision 11.9D(11) has been revised to clarify the actions along trails as proposed and
applies to whether or not an ‘‘interested limitation. It now reads, ‘‘Not meeting finalized in the establishment of CXs
public’’ or ‘‘affected interest’’ has the land health standards due to factors that 11.G(1)–(3) will not result in a
opportunity to protest and appeal a do not include existing livestock significant effect, individually or
decision. The implied concern is that, grazing.’’ cumulatively. Further, regardless of

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whether the transportation feature is a the BLM has done in proposing the significant consequences may ensue, a
road or a trail, all proposed actions 11.9G(2) CX. rationale that the courts have rejected.’’
possible under the CXs would be Response: Based upon field Response: The comment is not clear
reviewed against the DOI ‘‘extraordinary experience, implementing the category about which court has ‘‘rejected’’ the
circumstances’’ (516 DM 2 and of actions, as defined in the CX, has not ‘‘rationale’’ that CXs ‘‘will not be used
appendix 2). If any apply, the CXs could resulted in individually or cumulatively where significant consequences may
not be used; rather, an EA or EIS would significant effects for or along roads. ensue.’’ The CEQ regulations (40 CFR
be prepared. The BLM State Trail and Travel 1508.4 and 1507.3) authorize federal
Comment: Some comments ask that Management Leads have concluded agencies to establish and apply CXs and
the BLM not add ‘‘trails’’ to the existing based upon years of professional specify that CXs will not be applicable
transportation CXs 11.9G(1)–(3). experience that the addition of ‘‘trails’’ when there are extraordinary
Response: See response above. to these categories will not result in circumstances. The BLM followed CEQ
Further, it is appropriate to consider individually or cumulatively significant regulations in proposing additional CXs
roads and trails together in environmental effects. The BLM did not to reduce paperwork and delays (40 CFR
transportation management and propose changes to the overall category 1500.4 and 1500.5) and enable the BLM
maintenance, which are the activities of activities covered by the existing CX to concentrate on environmental issues
addressed by CXs 11.9G(1)–(3). 11.9G(2) for management actions for and that are associated with proposed
Collectively roads and trails form the along roads, rather it added to the actions that require further analysis in
travel network in a management area. ability of the BLM to implement the an EA or an EIS. Supporting
Both roads and trails require signs, activities along the smaller linear trail documentation for the revised
markers, culverts, and other similar features. The BLM is adding trails to the Recreation Management CX 11.9H(1)
structures covered by CX 11.9G(2). CX to more accurately reflect the was reviewed to determine whether
Trails, like roads, occasionally need to similarities in the management actions there is sufficient evidence based on
be closed or barricaded, which is the and maintenance requirements under past NEPA analyses and subsequent
subject of CX 11.9G(3). The addition of these categories for roads and trails and review of environmental effects to
trails to CXs 11.9(G)(1)–(3) is consistent due to their similar non-significant support the finding that the activity
with the BLM’s management practices environmental effect. included in the proposed CX would not
and comprehensive planning for roads Comment: Some comments state that cause individually or cumulatively
and trails-related activities. These by including existing trails, the BLM significant environmental impacts. The
management practices and planning could be permitting approval and establishment of CXs has been upheld
considerations are guided by regulation signing of illegally created motorized in Heartwood, Inc. v. U.S. Forest
(43 CFR 8342.2 ‘‘Designation trails or providing access or use rights Service, 73 F. Supp. 2d 962, 972–73
Procedures’’—including ‘‘identification to third parties, and the BLM will (S.D. Ill. 1999), aff’d 230 F.3d 947, 954–
of designated areas and trails’’), BLM encourage additional use of 55 (7th Cir. 2000). The BLM
directives and guidelines (BLM Manual unauthorized trails. administrative review concluded that
9130 (June 7, 1985)), BLM Land Use Response: The term ‘‘existing’’ has special recreation permits (SRP) that
Planning Handbook (H–1601–1), and been replaced by ‘‘eligible’’ to clarify meet the criteria of the CX, will not
current BLM Sign Manual 9130. that all roads and trails that can be result in individually or cumulatively
Coverage of minor management addressed by the CXs must meet certain significant effects. In addition, activities
activities by these three CXs will enable requirements under the land use and conducted through the CX review
more timely day-to-day management transportation planning processes. process must address the ‘‘extraordinary
responses, which directly benefit the Decisions regarding the designation of circumstances’’ (516 DM 2.3(A) and
environment and/or assist in visitor roads and trails, determinations of OHV appendix 2) and be consistent with all
safety and result in no significant open, closed or limited areas, or applicable laws and requirements
impact. ‘‘formal’’ recognition of the roads and imposed for protection of the
Comment: Some comments ask that environment.
trails contained within any
the BLM clarify the meaning of the Comment: The same comments state,
transportation system are determined
modifier ‘‘existing’’ in the transportation ‘‘although CEQ regulations require that
through the appropriate land use
CXs 11.9(G)(1) and 11.9(G)(2). CXs incorporate an ‘extraordinary
Response: The term ‘‘existing’’ has planning or activity planning that is
circumstances’ exception, 40 CFR
been replaced by ‘‘eligible’’ to clarify accompanied by a NEPA review process
1508.4, the presence of the exception is
that any roads and trails to be addressed (see the BLM Land Use Planning
not an excuse for the authorization of
by the CXs 11.9(G)(1) and (2) must meet Handbook H–1601–1, appendix C,
otherwise improper or inadequately
certain requirements established in the Section D). These decisions are not justified CXs. See Heartwood, Inc. v.
land use and transportation planning determined through application of the United States Forest Service, 73 F.
processes. The requirement criteria for CX. Supp. 2d 962, 976 (rejecting as
defining a road or trail as open are Responses to Specific Comments on ‘‘circular’’ the Forest Service’s argument
developed as part of the land use Section 11.9—Categorical Exclusions that exceptional circumstances
planning process to meet resource exception adequately compensates for
management objectives. The word H. Recreation Management (Sub-Part failure to consider cumulative effects of
‘‘existing’’ was replaced with the word H(1)) an action proposed for categorical
‘‘eligible’’ to avoid confusion with the H(1)—Comments. exclusion).’’
BLM’s OHV designation of ‘‘Limited.’’ Comment: Some comments state that Response: See previous response
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Comment: Some comments state that the analysis used to justify the special relative to the court case cited. In
it is inappropriate to treat routine recreation permit (Recreation addition, the facts in the Heartwood
installation of signs, markers, culverts, Management ) CX 11.9H(1) is flawed decision are distinguishable from those
ditches, waterbars, gates, or cattleguards because it ‘‘assumes that [the] BLM underlying the proposed actions here;
as equally benign when analyzing review process will ensure categorical therefore, they do not apply in this
potential environmental effects which exclusions will not be used where context. The BLM has established the

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Recreation Management CX 11.9H(1), significantly different categories of establish and apply CXs. The BLM
based on data gathered and reviewed activities, such as motorized versus non- followed CEQ regulations in proposing
using generally accepted analytic motorized recreation events.’’ In other additional CXs to reduce paperwork and
procedures. Furthermore, the BLM’s words, it exempts a ‘‘category of delays (40 CFR 1500.4 and 1500.5) and
analysis included a review of NEPA actions’’ without any analysis of the enable the BLM to concentrate on
documents which themselves included actions, which belong to that category. environmental issues associated with
analyses of cumulative effects and the Response: The BLM disagrees. The proposed actions that require further
subsequent BLM review of the actual CEQ regulations (40 CFR 1508.4 and analysis in an EA or EIS. The Recreation
effects. A statistically valid random 1507.3) authorize Federal agencies to Management CX 11.9H(1) was subjected
sample of the BLM’s total population of establish and apply CXs to categories of to administrative review to determine
SRP records indicates that 84 percent of actions that do not have significant whether there is supporting evidence
the BLM’s SRPs have had no effects, either individually or based on past NEPA analyses, as well as
unanticipated individual or cumulatively, on the quality of the evaluation of environmental effects of
cumulatively significant impacts. Upon human environment, and specify that the action as implemented, sufficient to
further review, the BLM clarified the CX CXs will not be applicable when there support the conclusion that this
language to include the limitation that are extraordinary circumstances. The category of action does not cause
the CX cannot be applied to commercial BLM examined, collectively SRP individually or cumulatively significant
boating activities proposed along activities authorized in LUPs, and found environmental impacts. The BLM found
designated Wild and Scenic Rivers. This that for this category of action, with the no significant effect for all cases except
limitation was added in accordance added limitation respecting commercial commercial boating activities along
with CEQ proposed guidance on the boating along Wild and Scenic Rivers, Wild and Scenic Rivers. Based upon
establishment and use of categorical there were no significant impacts, further review, and in accordance with
exclusions (71 FR 54816, September 19, individually or cumulatively. This CEQ proposed guidance on the
2006), which encourages agencies to category of actions, the authorizing of establishment and use of categorical
clearly define the category of actions SRPs, includes permitting commercial exclusions (71 FR 54816, September 19,
covered, as well as any physical or recreation operations, competitive 2006), which encourages agencies to
environmental factors that would events and organized group activities, as clearly define the category of actions
constrain its use. These constraints stated on page 2 of the SRP analysis covered, as well as any physical or
ensure that the SRPs likely to have report available at http://www.blm.gov/ environmental factors that would
significant effects would not be eligible planning/news.html. As such, the constrain its use, the final SRP CX
for CX use. Therefore, the SRP activities category includes all types of includes a limitation on this type of SRP
that could be covered under the CX by recreational activities engaged in by the so that the CX cannot be used for
meeting all CX criteria, would not result public. The report lists, for instance, an consideration of commercial boating
in a significant effect on the organized group of bird watchers and an SRPs along Wild and Scenic Rivers.
environment either individually or endurance horse racing event, but as Further, the BLM must review proposed
cumulatively. The BLM mandates that stated in the report the recreational actions considered for use of a CX
proposed actions or activities be, at a activities covered by SRPs are not against the DOI ‘‘extraordinary
minimum, consistent with the DOI and limited to the examples given. The SRPs circumstances’’ (516 DM 2.3A(3) and
are also granted for mechanized and
the BLM regulations, manuals, appendix 2). If one or more of the
motorized recreational activities. The
handbooks, policies, and applicable ‘‘extraordinary circumstances’’ apply,
SRP data analyzed incorporated all
LUPs regarding design features, best the CX cannot be used. In authorizing
types of recreational activities
management practices, terms and an action, regardless of the type of
authorized under SRPs, including those
conditions, conditions of approval, and NEPA compliance completed, the BLM
issued for motorized recreational
stipulations. The BLM requires that all may not violate any applicable Federal,
activities. For additional information
SRP permittees must agree to comply State, local, and tribal laws and
regarding the definition of these
with the specific SRPs terms and requirements imposed for protection of
activities, see 43 CFR 2932. Further,
conditions identified on the BLM Form the environment. The establishment of
with respect to the grant of each SRP,
2930–1, which the BLM uses the Responsible Official must require
CXs have been upheld in Heartwood,
nationwide. Additional examples of the standard terms and conditions Inc. v. U.S. Forest Service, 73 F. Supp.
standard stipulations, terms, conditions found on Form 2930–1 and must 2d 962, 972–73 (S.D. Ill. 1999), aff’d 230
of approval and specific limitations to address whether any ‘‘extraordinary F.3d 947, 954–55 (7th Cir. 2000). In
apply to SRPs can be found in the circumstances’’ (516 DM 2 and addition, public involvement has been,
BLM’s Recreation Permit Handbook (H– appendix 2) apply. If any of the and remains, critical to the BLM
2930–1 appendix C). An example of one ‘‘extraordinary circumstances’’ apply, decision-making process. The public
state-specific guidance is the Wyoming the CX cannot be used. will continue to have opportunities for
Statewide Recreation Permit Handbook Comment: Some comments state that involvement during the development of
(2932–WY–050–SRP–03–05). The BLM the analysis used to justify the SRP CX LUPs and activity plans. Furthermore,
must review all proposed actions 11.9H(1) is ‘‘flawed’’ because using a in instances where there is a high public
against the DOI list of ‘‘extraordinary history of EA process review data to interest in an individual proposed SRP,
circumstances’’ (516 DM 2.3A(3) and justify the CX fails entirely to take into the Responsible Official retains the
appendix 2). If one or more of the consideration the extent to which discretion to involve the public
‘‘extraordinary circumstances’’ apply, adverse environmental consequences throughout the decision-making process
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the CX could not be used; rather, an EA are identified and avoided through the regardless of the kind of NEPA review
or EIS would be prepared. EA process and accompanying public conducted.
Comment: Some comments state that involvement. Comment: Some comments state that
the analysis used to justify Recreation Response: The BLM disagrees. The the ‘‘best outcome’’ would be to retain
Management CX 11.9H(1) is ‘‘flawed’’ CEQ regulations (40 CFR 1508.4 and the SRP CX 11.9H(5) and modify and
because it ‘‘fails to distinguish between 1507.3) authorize Federal agencies to adopt the new CX 11.9H(1) by ‘‘adding

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a ceiling or maximum number of people relatively low-impact examples consistency with the typical length of
and/or vehicles that may participate in provided’’ and not allow ‘‘other stay for any casual visitor using public
the recreational activity or event, in activities, with extremely serious lands (43 CFR 8364; 8365.1–2
addition to any time an[d]/or acreage adverse environmental consequences, ‘‘Occupancy and Use,’’ and 8365.1–6
limits.’’ such as motorized vehicle races and ‘‘Supplementary Rules’’). Additional
Response: The Recreation Program events and activities on Wild and review of the data analyzed during the
determined that the existing CX needed Scenic Rivers.’’ establishment of the CX confirmed that
to be revised to clarify the language to Response: Upon further review, the there was no difference in results of the
ensure consistent application of its use BLM has added a limitation to the terms NEPA review with respect to SRPs with
Bureau-wide. The new language of the CX. The CX may not be used in overnights stays of up to 7 nights, as
approved for the CX 11.9H(1) was the permitting of commercial boating compared to stays of up to 14 nights.
developed following generally accepted activities on Wild and Scenic Rivers as Significant environmental effects did
analytical procedures. The proposed this was the one type of SRP activity not result from SRPs with lengths of
language did not include ceilings or sampled that resulted in a significant stays of up to 14 nights. The acre limit
maximum numbers of people and/or effect. None of the other SRP activities was set during the establishment of the
vehicles that may participate in sampled during the establishment of proposed CX based on the professional
activities addressed by the CX because, this CX resulted in environmentally judgment of the BLM recreation
for the overwhelming number of SRPs significant effects, individually or planners and their review of SRP
issued and otherwise meeting the cumulatively. As to the commenter’s activities. This acreage was refined for
proposed criteria, the NEPA analyses other concern, while the list of the final CX based on the data reviewed.
conducted resulted in FONSIs examples provided in the December 12, The BLM professional judgment,
regardless of the number of people or 2005, CX Project—Recreation analysis supported by the data analysis ensures
vehicles involved in the permitted report (available at http://www.doi.gov/ that no significant impact will occur
activity and the subsequent BLM review oepc/cx_analysis.html and http:// based on implementation of this
of the actual effects confirmed there www.blm.gov/planning/news.html) did limitation for this CX.
were no significant impacts. In addition, not include motorized vehicle activity Comment: Some comments state that
the BLM has added limits to the final examples, it was not an exhaustive list. the analysis used to justify the CX is
CX language to clarify that it cannot be In fact, SRPs authorizing motorized ‘‘flawed’’ because it ‘‘fails entirely to
applied for the permitting of activities were included in the sampled address the question of cumulative
commercial boating along Wild and data, which reflected all types of SRPs impacts on the environment.’’
Scenic Rivers, the only type of SRP authorized. Recreational activities of Response: See above responses
sampled that was found to have or any type with ‘‘extremely serious regarding establishment of the
potentially have significant adverse environmental consequences’’ Recreation Management CX. None of the
environmental effects, rendering it as mentioned in the comment, would projects reviewed that meet the final CX
unacceptable for CX consideration. not be reviewed using a CX as one or language criteria, resulted in
Further, if needed, establishment of more of the ‘‘extraordinary cumulatively significant environmental
visitor use limitations or vehicle circumstance’’ would apply (516 DM effects. Further, all proposed SRPs
number limitations are determined 2.3A(3) and appendix 2). If any of the considered for application of the CX
during the land use planning process. ‘‘extraordinary circumstances’’ apply, would be reviewed against the
Based on BLM data, when the new the CX will not be used, and an EA or ‘‘extraordinary circumstances’’ (516 DM
Recreation Management CX 11.9H(1) EIS would be prepared. 2.3A(3) and appendix 2), and
criteria are met, individual and Comment: Some comments ask if CX extraordinary circumstance 2.6
cumulatively significant impacts will 11.9H(1) covers ‘‘organized and/or specifically addresses cumulative
not occur. The staging area acre commercial events.’’ impacts on the environment.
limitation was determined during the Response: Yes, CX 11.9H(1) covers all Comment: Some comments state that
analytical process, based on the types of SRPs, including organized and/ CX 11.9H(1) ‘‘should not be adopted as
professional judgment of the BLM or commercial events, that meet the CX- written’’ and that the CX should
recreation specialists and their review of specific criteria and where none of the ‘‘exclude activities that utilize
past SRP activities, to be an appropriate ‘‘extraordinary circumstances’’ apply motorized equipment, which
threshold to set to ensure that (516 DM 2.3A(3) and appendix 2). intrinsically have the potential to cause
significant effects do not occur for Comment: Some comments state that significant environmental impacts.’’
future actions addressed by the CX. CX 11.9H(1) ‘‘time and space Some comments ask the BLM to exclude
Comment: Some comments ask the limitations’’ are not enough to ‘‘negate ‘‘off-highway vehicles and motorized
BLM to retain the existing CX ‘‘in lieu the environmental impacts’’ and recreation’’ because they cause
of this new H(1)CX,’’ because they ‘‘concentrating [any] such activities to a significant impacts, such as increased
prefer the concluding phrase ‘‘similar confined space can further and noise levels, air pollution from dust and
minor events’’ which is an important substantially increase the impacts.’’ fumes, and incidental off-road use.
and ‘‘reasonable’’ limitation. Response: The BLM disagrees. The Response: See above responses. The
Response: See response above. The ‘‘time and space’’ limitations set in data analyzed during the establishment
new language is based on a completed establishment of the proposed CX were of the CX included ‘‘off-highway vehicle
NEPA review process that included data derived based on the administrative and motorized recreation’’ activities.
collected through a stratified random review described in the analysis report The BLM concluded based on the data
sample of all SRPs issued by the BLM for the SRP CX found at http:// analyzed, that the SRPs covered under
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from October 1, 2000, through www.blm.gov/planning/news.html. the CX did not result in significant
September 30, 2005. The analysis of this Upon further review, the BLM has environmental effects, individually or
sample supports the new Recreation decided to change the limitation for the cumulatively. Further, CX 11.9H(1) can
Management CX 11.9H(1). Recreation Management CX 11.9H(1) only be used to permit recreational
Comment: Some comments wanted length of overnight stay from 7 to 14 activities that meet the CX criteria when
the CX 11.9H(1) to apply ‘‘to the consecutive nights to provide none of the ‘‘extraordinary

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circumstances’’ (516 DM 2.3A(3) and appendix 2) apply, the CX cannot be consistency with the allowable length of
appendix 2) apply. If any ‘‘extraordinary used. stay for any casual visitor using public
circumstances’’ apply, the CX cannot be Comment: Some comments wanted to lands (43 CFR 8364, 8365.1–2
used. know if ‘‘the 3% of SRPs with ‘‘Occupancy and Use,’’ and 8365.1–6
Comment: Some comments state that significant impacts’’ involved motor ‘‘Supplementary Rules’’). This is to
not all types of recreation use/activity vehicle events and whether the SRP ensure equality regarding ‘‘length of
should be eligible for the Recreation data can be used to differentiate stay’’ limitations between permitted use
Management CX 11.9H(1), even if the between significant impacts associated activities and the casual use activities
use/activity meets the area and number with different types of SRP activities. on public lands.
of consecutive nights criteria. For Response: The BLM data reviewed Comment: Some comments express a
example, certain recreational uses, such revealed that the 3% of the SRPs with concern that the three contiguous acres
as cattle drives, rodeos, and motorcross significant impacts were for SPR language could be variously interpreted
and motorcycle hill climbing events, commercial boating activities along because it is not clear whether the
may have significant effects. Federal Wild and Scenic Rivers. Therefore, the activity area includes a linear route,
court cases and the ‘‘IBLA have BLM added a specific limitation to the such as a race. They suggested adding
specifically found [these kinds of CX so that it cannot be used for the words ‘‘staging area’’ to clarify the
events] to have significant (and adverse) commercial boating along Wild and CX language.
effects * * * .’’ Scenic Rivers. None of the remaining Response: The BLM agrees. The word
SRPs activities sampled resulted in ‘‘contiguous’’ has been deleted and the
Response: The BLM used analytical
significant environmental effects, term ‘‘staging area’’ has been added to
procedures to examine the NEPA
individually or cumulatively. the CX to clarify the intent of the
process results used to issue 8,063 SRPs Comment: Some comments wanted limiting condition. See staging area
from October 1, 2000, through the BLM to limit the number of definition below.
September 30, 2005. The BLM currently motorized vehicles used, duration, Comment: Some comments ask that
issues an estimated 3,500 SRPs speed, or type of event and/or to the BLM define ‘‘staging area.’’
annually, of which approximately 1,500 specifically address the different Response: A staging area is defined in
permits are re-issued each year. The impacts from the volume of users, this context as an area where use is
permits granted include SRPs for the intensity of use, and equipment concentrated, usually to enable access to
types of recreation actions identified by involved. a recreational activity that involves
the comments. The BLM examined, Response: None of the SRP activities traveling across public lands along
collectively, SRP activities authorized in that meet the final CX criteria resulted roads, trails or in areas authorized in a
LUPs, and found that for this category in significant environmental effects, LUP. Examples include trailheads,
of action, with the added limitation individually or cumulatively. Therefore, gathering points, base or hunting camps,
pertaining to commercial boating on the BLM did not add additional boat launching or parking areas, and the
Wild and Scenic Rivers, there are no limitations to the CX as suggested in the like. Other examples of staging areas
significant environmental effects, either comment. include a congregation point (e.g., for
individually or cumulatively. This Comment: Some comments asked the parking) where a group activity begins
category of actions, the authorizing of BLM to describe how the size of the ‘‘3 and/or ends, a viewing area for an event,
SRPs, includes permitting commercial contiguous acres’’ and the seven a training course or play area not
recreation operations (excepting boating consecutive day and overnight stay involving existing roads or trails. The
along Wild and Scenic Rivers), limits were derived. staging area acreage amount does not
competitive events and organized group Response: Data analyses revealed no include the use of authorized roads,
activities, as stated on page 2 of the SRP statistical relationship between the size trails or access to adjacent areas open
analysis report available at http:// of the staging area, number of for recreational use in the LUP.
www.blm.gov/planning/news.html. As consecutive overnights permitted, and Comment: Some comments ask that
such, the category includes all types of the incidence of significant individual the BLM define ‘‘travel management
recreational activities engaged in by the or cumulative impacts. Therefore, the area’’ and ‘‘travel networks.’’
public. The report lists, for instance, an BLM selected the three contiguous acre Response: ‘‘Travel management areas’’
organized group of bird watchers and an area limit based upon a review of the and ‘‘networks’’ are defined in the
endurance horse racing event, but as SRPs issued. Of 548 informative BLM’s Land Use Planning Handbook
stated in the report the recreational responses to a questionnaire about the (H–1601–1 appendix C and Glossary
activities covered by SRPs are not actual size of the staging area and page 8). ‘‘Travel Management Areas’’ are
limited to the examples given. These number of nights involved in the SRPs defined as polygons or delineated areas
SRPs are also granted for mechanized issued, 90 percent of the SRPs with where a land use planning process has
and motorized recreational activities. staging area information reported that classified areas as open, closed, or
The SRP data and activities analyzed the area involved was equal to or less limited to off-highway vehicle use or
included all types of recreational than 3 acres. The 7-day stay limit was other modes of travel. The terms ‘‘travel
activities authorized under SRPs. For derived by analyzing the entire management area’’ and ‘‘networks’’ were
additional information regarding the population of SRPs in the BLM’s replaced in the final CX language with
definition of these activities, see 43 CFR Recreation Management Information ‘‘recreational travel along roads, trails or
2932. Based on a statistically valid System and taking the average length of in areas authorized in a LUP’’ to clarify
sample of SRPs issued, the BLM has stay permitted. Based on comments the intent of the final CX.
determined that establishment of the received and the fact that the data Comment: Some comments ask for
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new SRP CX is warranted; all types of revealed no relationship between length more information on how the BLM: (a)
recreation activities that meet the CX of overnight stay and significant Differentiates organized/commercial
criteria are eligible for authorization impacts, the BLM has decided to change groups relative to private/individual use
under the new SRP CX. However, if any the Recreation Management CX 11.9H(1) in the travel management and
of the DOI ‘‘extraordinary length of overnight stay from 7 to 14 transportation network planning
circumstances’’ (516 DM 2.3A(3) and consecutive nights to provide context; (b) deals with permitted

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dispersed recreational activities weather, earthquakes, and landslips. type, emergency stabilization/
impacts; and (c) manages events with The emergency stabilization response rehabilitation treatments performed, the
large staging areas on private lands activities include management type of NEPA review performed,
supporting permitted recreational use of treatments, which are prescribed to predicted environmental impacts of
public lands. minimize threats to life or property and proposed treatments and the actual
Response: (a) The BLM differentiates to stabilize and prevent unacceptable environmental impacts after treatments.
SRP authorized activities from private/ degradation of natural and cultural The criteria applied were not
individual use (i.e. casual use) based on resources as a result of a natural land subjectively derived. In the judgment of
definitions found in 43 CFR 2930 and disturbance event. The emergency the BLM professionals experienced in
the BLM guidance in the BLM stabilization responses under this CX implementing these activities, the
Recreation Permit Handbook (H–2930– are the same as the DOI CX post-fire activities and their effects for which the
1, pages 10–12). (b) The BLM does not rehabilitation activities and may BLM Emergency Stabilization CX is
differentiate between dispersed or non- include: Seeding to prevent erosion or proposed, are of the same nature as the
dispersed recreational activity impacts the spread of noxious weeds; activities and their effects analyzed as
when considering a proposed SRP installation of structures, such as log the basis for establishment of the DOI
action. The BLM considers whether the erosion barriers or straw wattles; felling post-fire rehabilitation CX.
proposed activity meets the criteria set hazard trees along roads or in (3) The 4,200-acre limit was derived
forth in the CX and if not, a different campgrounds; and similar treatments to through analysis of the DOI CX data set,
type of NEPA review would be prevent or minimize negative impacts which represents a range of
conducted to determine the caused by a natural land disturbance environments in which wildfire events
environmental effects of the proposed event. While the natural events routinely occur on public lands. This
SRP. In addition, general dispersed responded to by activities covered CX adopts the 4,200-acre limit to
recreational activity impacts would be under this CX may be different from a maintain consistency with the DOI CX
analyzed during the land use planning wildland fire, because the response limitation as the effects of the actions
process. (c) The BLM SRPs are use actions taken under this CX are taken in response to wildfires. These
authorizations for activities on the BLM- generally the same as those taken under response actions are the same as those
administered public lands and related the DOI CX for post-fire rehabilitation, taken in response to other natural land
waters. The issuing of SRPs for events the BLM has concluded that, similarly, disturbance events. Based on review of
involving ‘‘staging areas’’ on private they do not result in significant effects, the DOI CX data by professionals in the
lands are coordinated by the BLM with individually or cumulatively. The BLM area of post-disturbance stabilization,
stipulations requiring the permittee reached this conclusion on the basis the BLM concludes that this CX will not
collaborate with appropriate private both of conducting a review of the have individual or cumulative
landowners and/or public agencies (law wildfire data, and based on the significant impacts when all conditions
enforcement, highway, fish and game, professional judgment of BLM of the CX were met. Further, as an
etc., BLM Form 2930–1, Special specialists experienced with these types additional safeguard, the BLM must
Recreation Application and Permit). If of events and response activities and review all proposed actions against the
significant impacts, as revealed in the their effects. Appropriate use of the DOI ‘‘extraordinary circumstances’’ (516
course of ‘‘extraordinary circumstances’’ Emergency Stabilization CX 11.9I(1) is DM 2.3A(3)). If any of the
review, may occur from issuance of an ‘‘extraordinary circumstances’’ apply,
warranted on the basis of this review
SRP, this CX could not be used. the CX cannot be used.
and judgment, as well as because such
Comment: Some comments state that
use will be in accord with current
Responses to Specific Comments on post-emergency treatments ‘‘merit
administrative procedures such as the thorough analysis regarding potential
Section 11.9—Categorical Exclusions
following: BLM Burned Area Emergency significant impacts.’’ Affected areas are
I. Emergency Stabilization (sub-part I(1)) Stabilization and Rehabilitation ‘‘often extremely vulnerable to further
I(1)—Comments. Handbook (H–1742–1); specific environmental damage’’ and ‘‘the
Comment: Some comments state that standards and guidelines expressed in activities included do not necessarily
the Emergency Stabilization CX is (1) policy documents such as Instruction work successfully to mitigate damages
too broad, (2) based on subjective Memorandum 2006–162; and the from natural events and often cause
criteria, and (3) includes far too many specific terms and conditions identified adverse impacts on their own.’’
acres of land disturbance. within local LUPs. Further, the BLM Response: The DOI post-fire
Response: (1) The new Emergency must review all proposed emergency rehabilitation CX data review concluded
Stabilization CX builds on the existing stabilization treatment against the DOI’s that no significant individual or
DOI CX that addresses post-fire ‘‘extraordinary circumstances’’ (516 DM cumulative impacts are likely to occur
rehabilitation responses to wildfires 2.3A(3) and appendix 2). The CX cannot as a result of the types of stabilizing
(516 DM 2 appendix 1, section 1.13, be used if any of the ‘‘extraordinary response activities that are taken within
Finalized at 68 FR 33814, June 5, 2003). circumstances’’ apply. 1 to 3 years of the natural disturbance
Post-fire rehabilitation activities as (2) The category of actions covered by event. The BLM’s Emergency
defined in the DOI CX refer to response the new Emergency Stabilization CX, as Stabilization CX includes an additional
activities taken within 1 to 3 years well as its specific criteria, were derived limitation that actions can only be taken
following a wildfire. For the purposes of from a review of approximately 300 within one year following the natural
this BLM-specific CX, emergency post-fire emergency stabilization/ disturbance event. In addition, the
stabilization response activities are the rehabilitation projects analyzed during Emergency Stabilization CX cannot be
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same on-the-ground treatments as the the establishment of the DOI post-fire used if one or more of the DOI
post-fire rehabilitation treatments but rehabilitation CX 620 DM Ch 3.3E, June ‘‘extraordinary circumstance’’ (516 DM
they must occur within one year of the 5, 2003. Information on 30 variables was 2.3A(3) and appendix 2) applies.
natural land disturbance event. The collected and analyzed. These data Comment: Some comments ask that
events may include destabilizing natural included project-specific information on the BLM ‘‘consider alternatives [to
events, such as wildfire, floods, strong the location, project size, vegetation repair or replacement of roads and

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culverts] that would permit clarify what a temporary road is for use action and not a rulemaking. However,
improvement of wildlife habitat or under this CX. Further, if one or more we have addressed the various
watershed condition.’’ of the ‘‘extraordinary circumstances’’ procedural requirements that are
Response: The CX 11.9I(1) may be apply the CX cannot be used. generally applicable to proposed and
used only for Emergency Stabilization Comment: Some comments final rulemaking to show how they
treatments when the CX specific criteria recommend that culvert repair and would affect this notice if it were a
are met in full. Further, each proposed replacement not be included in the list rulemaking.
action must be reviewed against the DOI of exempted treatments and that the CX
‘‘extraordinary circumstances,’’ if any Regulatory Planning and Review
language be changed to limit treatments
apply, the CX cannot be used. to ‘‘less invasive treatments’’ that can Under Executive Order 12866 (58 FR
Emergency stabilization activities are only be applied when the affected area 51735, October 4, 1993), it has been
those treatments that are prescribed to is verifiably destabilized. determined that this action is the
minimize threats to life or property and Response: Repair and replacement of implementation of policy and
to stabilize and prevent unacceptable existing culverts damaged or lost due to procedures applicable only to the DOI
degradation of natural and cultural a natural disaster is necessary to prevent and not a significant regulatory action.
resources as a result of a natural land excessive soil erosion and damage to These policies and procedures would
disturbance event. The emergency resources and property in unstable not impose a compliance burden on the
stabilization actions must be taken environments. According to the DOI CX general economy.
within one year following the data analyzed, no unanticipated
disturbance event. The emergency Administrative Procedure Act
individual or cumulatively significant
stabilization activities may include: impacts occur when culverts are This document is not subject to prior
seeding to prevent erosion or the spread repaired or replaced in accordance with notice and opportunity to comment
of noxious weeds; installation of the criteria established in the new because it is a general statement of
structures, such as log erosion barriers Emergency Stabilization CX 11.9I(1). policy and procedure (5 U.S.C.
or weed-free straw wattles and fish The activities and the effects of those 553(b)(A)). However, notice and
friendly culverts; felling hazardous trees activities covered under this Emergency opportunity to comment is required by
along roads or in campgrounds; and Stabilization CX are the same as the DOI the CEQ regulations (40 CFR 1507.3(a)).
similar treatments to prevent or CX and will result in no individually or Regulatory Flexibility Act
minimize negative impacts caused by cumulatively significant impacts.
certain inevitable natural events. These Comment: Some comments This document is not subject to notice
activities are covered under CX 11.9I(1) recommend that the Emergency and comment under the Administrative
because they are commonly accepted Stabilization CX 11.9I(1) be expanded to Procedure Act, and, therefore, is not
minimum impact responses to the include ‘‘minor herbicide applications.’’ subject to the analytical requirements of
effects of floods, weather events, Response: The data analyzed in the the Regulatory Flexibility Act (5 U.S.C.
earthquakes, and landslips in addition development of the Emergency 601 et seq.). This document provides the
to wildfires. Improvements to natural Stabilization CX 11.9I(1) excluded the DOI with policy and procedures under
resource conditions may be a derived or use of herbicides as a variable in the NEPA and does not compel any other
incidental benefit, but cannot be a analysis. Therefore, the CX 11.9I(1) party to conduct any action.
driving purpose for the proposed action explicitly precludes its use with respect Small Business Regulatory Enforcement
for use of this CX. to the application of herbicides.
Comment: Some comments ask that Fairness Act
the BLM clearly define what constitutes Responses to Specific Comments on These policies and procedures do not
‘‘temporary road’’ construction to Section 11.9—Categorical Exclusions comprise a major rule under 5 U.S.C.
‘‘minimize * * * impacts,’’ and to 804(2), the Small Business Regulatory
J. Other (sub-part J(12)) Enforcement Fairness Act. The
include language in each CX that
provides a requirement that temporary J(12)—Comments. document will not have an annual effect
roads be obliterated when a project is Comment: Some comments ask why on the economy of $100 million or more
completed. Some comments suggested the existing CX 11.9H(12) is being and is expected to have no significant
that road construction should only be deleted. economic impacts. Further, it will not
carried out following a detailed Response: The proposed 516 DM 11 cause a major increase in costs or prices
analysis. mistakenly left the existing 11.9H(12) for consumers, individual industries,
Response: The need for temporary out of the Federal Register (71 FR 4159– Federal, State, or local government
roads is determined during the project 4167, January 25, 2006). This existing agencies, or geographic regions and will
proposal process. The Responsible CX is added back into the text of this (Page 52596) impose no additional
Official is required to review the project Federal Register notice with no changes regulatory restraints in addition to those
proposal against the DOI’s extraordinary to its language, however the citation already in operation. Finally, the
circumstance (516 DM 2.3A(3) and number is changed to J(12) for document does not have significant
appendix 2). Project proposals include continued inclusion in the ‘‘Other’’ adverse effects on competition,
descriptions of when vehicle and Category. The language reads, employment, investment, productivity,
equipment access is necessary, how it ‘‘Rendering formal classification of innovation, or the ability of United
will be done, and, if temporary roads are lands as to their mineral character and States-based enterprises to compete
included, how they are to be reclaimed. waterpower and water storage values.’’ with foreign-based enterprises.
Based on the DOI CX data analyzed for
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the proposed Emergency Stabilization Procedural Requirements Unfunded Mandates Reform Act
CX (11.9I(1)), there are no individual or The following list of procedural In accordance with the Unfunded
cumulatively significant environmental requirements has been assembled and Mandates Reform Act (2 U.S.C. 1501 et
effects when temporary roads are part of addressed to contribute to this open seq.), this document will not
activities identified in the CX. The BLM review process. Today’s publication is a significantly or uniquely affect small
added a definition to the CX language to notice of an internal Departmental governments. A Small Government

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45536 Federal Register / Vol. 72, No. 156 / Tuesday, August 14, 2007 / Notices

Agency Plan is not required. The 1999), aff’d 230 F.3d 947, 954–55 (7th NEPA, this publication will not cause
document does not require any Cir. 2000). such interference.
additional management responsibilities. Authority: The NEPA, the National
Essential Fish Habitat
Further, this document will not produce Environmental Quality Improvement Act of
a federal mandate of $100 million or We have analyzed this document in 1970, as amended (42 U.S.C. 4371 et seq.);
greater in any year, that is, it is not a accordance with Section 305(b) of the Executive Order 11514, March 5, 1970, as
significant regulatory action under the Magnuson-Stevens Fishery amended by Executive Order 11991, May 24,
Unfunded Mandates Reform Act. These Conservation and Management Act and 1977; and CEQ regulations 40 CFR 1507.3.
policies and procedures are not determined that issuance of this
Willie R. Taylor,
expected to have significant economic document will not affect the essential
Director, Office of Environmental Policy and
impacts nor will they impose any fish habitat of federally-managed
Compliance.
unfunded mandates on other Federal, species; therefore, an essential fish
An electronic copy may be obtained
State, or local government agencies to habitat consultation on this document is
from the Department of the Interior Web
carry out specific activities. not required.
site http://elips.doi.gov.
Federalism Consultation and Coordination With
Department of the Interior
Indian Tribal Governments
In accordance with Executive Order Departmental Manual
13132, this document does not have In accordance with Executive Order
significant federalism effects; therefore, 13175 of November 6, 2000, and 512 lllllllllllllllllll
DM Ch 2, we have assessed this
a federalism assessment is not required. Effective Date: llllllllll
The policies and procedures will not document’s impact on tribal trust
Series: Environmental Quality.
have substantial direct effects on the resources and have determined that it
Part 516: National Environmental Policy
states, on the relationship between the does not directly affect tribal resources
Act of 1969.
Federal government and the states, or on since it describes the DOI’s procedures Chapter 11: Managing the NEPA
the distribution of power and for its compliance with NEPA. Process—Bureau of Land
responsibilities among the various Actions Concerning Regulations That Management.
levels of government. No intrusion on Significantly Affect Energy Supply, Originating Office: Office of
state policy or administration is Distribution, or Use Environmental Policy and
expected, roles or responsibilities of Compliance.
Executive Order 13211 of May 18,
federal or state governments will not lllllllllllllllllll
2001, requires a Statement of Energy
change, and fiscal capacity will not be Effects for significant energy actions. 516 DM 11
substantially, directly affected. Significant energy actions are actions
Therefore, the document does not have 11.1 Purpose
normally published in the Federal
significant effects on or implications for Register that lead to the promulgation of This chapter provides supplementary
federalism. a final rule or regulation and may have requirements for implementing
Paperwork Reduction Act any adverse effects on energy supply, provisions of 516 DM Chapters 1
distribution, or use. We have explained through 6 for the Department of the
This document does not require above that this document is an internal Interior’s Bureau of Land Management
information collection, as defined under DM part, which only affects how the (BLM). The BLM’s National
the Paperwork Reduction Act. DOI conducts its business under the Environmental Policy Act (NEPA)
Therefore, this document does not NEPA. Revising this manual part does Handbook (H–1790–1) provides
constitute a new information collection not constitute rulemaking; therefore, it additional guidance.
system requiring Office of Management is not subject to Executive Order 13211.
and Budget approval under the 11.2 NEPA Responsibilities
Paperwork Reduction Act (44 U.S.C. Actions to Expedite Energy-Related A. The Director and Deputy
3501 et seq.). Projects Director(s) are responsible for the BLM
National Environmental Policy Act Executive Order 13212 of May 18, NEPA compliance activities.
2001, requires agencies to expedite B. The Assistant Director, Renewable
The CEQ does not direct agencies to energy-related projects by streamlining Resources and Planning, is responsible
prepare a NEPA analysis or document internal processes while maintaining for national NEPA compliance
before establishing agency procedures safety, public health, and environmental leadership and coordination, program
that supplement the CEQ regulations for protections. Today’s publication is in direction, policy, and protocols
implementing NEPA. Agency NEPA conformance with this requirement as it development, and implementation of
procedures are procedural guidance to promotes existing process streamlining the same at the line management level.
assist agencies in the fulfillment of requirements and revises the text to The Division of Planning and Science
agency responsibilities under NEPA, but emphasize this concept (see Chapter 4, Policy, within the Assistant Directorate,
are not the agency’s final determination subpart 4.16). Renewable Resources and Planning, has
of what level of NEPA analysis is the BLM lead for the NEPA compliance
required for a particular proposed Government Actions and Interference program direction and oversight.
action. The requirements for With Constitutionally Protected Property C. The BLM Office Directors and other
establishing agency NEPA procedures Rights Assistant Directors are responsible for
are set forth at 40 CFR 1505.1 and In accordance with Executive Order cooperating with the Assistant Director,
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1507.3. The determination that 12630 (March 15, 1988), and Part 318 of Renewable Resources and Planning, to
establishing NEPA procedures does not the DM, the DOI has reviewed today’s ensure that the BLM NEPA compliance
require NEPA analysis and notice to determine whether it would procedures operate as prescribed within
documentation has been upheld in interfere with constitutionally protected their areas of responsibility.
Heartwood, Inc. v. U.S. Forest Service, property rights. As internal instructions D. The BLM Center Directors are
73 F. Supp. 2d 962, 972–73 (S.D. Ill. to bureaus on the implementation of the responsible for cooperating with the

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Assistant Director, Renewable Resources communication is necessary so that the 1502.8), so they can be understood and
and Planning, to ensure that the BLM BLM can efficiently advise the applicant should concentrate on the issues that
NEPA compliance procedures operate as on the anticipated type of NEPA review are truly significant to the action in
prescribed within their areas of required, information needed, and question rather than amassing needless
responsibility. potential data gaps that may or may not detail (40 CFR 1500.1(b)).
E. The State Directors are responsible need to be filled, so that the BLM can A. Reduce paperwork and delays: The
to the Director/Deputy Director(s) for describe the relevant regulations and Responsible Official will avoid
overall direction, integration and requirements likely to affect the unnecessary duplication of effort and
implementation of the BLM NEPA proposed action(s), and to discuss promote cooperation with other federal
compliance procedures in their states. scheduling expectations. agencies that have permitting, funding,
This includes managing for the B. Regulations: The following list of approving, or other consulting or
appropriate level of public notification potentially relevant regulations should coordinating requirements associated
and participation, and ensuring be considered at a minimum. Many with the proposed action. The
production of quality environmental other regulations affect public lands— Responsible Official shall, as
review and decision documents. Deputy some of which are specific to the BLM, appropriate, integrate NEPA
State Directors serve as focal points for while others are applicable across a requirements with other environmental
NEPA compliance matters at the state broad range of federal programs (e.g., review and consultation requirements
level. Protection of Historic and Cultural (40 CFR 1500.4(k)); tier to broader
F. The District and Field Managers are Programs—36 Code of Federal environmental review documents (40
responsible for NEPA compliance at the Regulations (CFR) Part 800). CFR 1502.20); incorporate by reference
local level. (1) Resource Management Planning— relevant studies and analyses (40 CFR
43 CFR 1610; 1502.21); adopt other agency
11.3 External Applicants’ Guidance environmental analyses (40 CFR
(2) Withdrawals—43 CFR 2300;
A. General (3) Land Classification—43 CFR 2400; 1506.3); and supplement analyses with
(4) Disposition: Occupancy and Use— new information (40 CFR 1502.9).
(1) For all external proposals, B. Eliminate duplicate tribal, state,
43 CFR 2500;
applicants should make initial contact and local governmental procedures (40
(5) Disposition: Grants—43 CFR 2600;
with the Responsible Official (District CFR 1506.2): The Responsible Official
(6) Disposition: Sales—43 CFR 2700;
Manager, Field Manager, or State (7) Use: Rights-of-Way—43 CFR 2800; will cooperate with other governmental
Director) responsible for the affected (8) Use: Leases and Permits—43 CFR entities to the fullest extent possible to
public lands as soon as possible after 2900; reduce duplication between federal,
determining the BLM’s involvement. (9) Oil and Gas Leasing—43 CFR state, local and tribal requirements in
This early contact is necessary to allow 3100; addition to, but not in conflict with,
the BLM to consult early with (10) Geothermal Resources Leasing— those in the NEPA. Cooperation may
appropriate state and local agencies and 43 CFR 3200; include the following: common
tribes and with interested private (11) Coal Management—43 CFR 3400; databases; joint planning processes;
persons and organizations, and to (12) Leasing of Solid Minerals Other joint science investigations; joint public
commence its NEPA process at the than Coal/Oil Shale—43 CFR 3500; meetings and hearings; and joint
earliest possible time. (13) Mineral Materials Disposal—43 environmental assessment (EA) level
(2) When a proposed action has the CFR 3600; and joint environmental impact
potential to affect public lands in more (14) Mining Claims Under the General statement (EIS) level analyses using
than one administrative unit, the Mining Laws—43 CFR 3800; joint lead or cooperating agency status.
applicant may initially contact any (15) Grazing Administration—43 CFR C. Consult and coordinate: The
Responsible Official whose jurisdiction 4100; Responsible Official will determine
is involved. The BLM may then (16) Wild Free-Roaming Horse and early in the process the appropriate type
designate a lead office to coordinate Burro Management—43 CFR 4700; and level of consultation and
between BLM jurisdictions. (17) Forest Management—43 CFR coordination required with other federal
(3) Potential applicants may secure 5000; agencies and with state, local and tribal
from the Responsible Official a list of (18) Wildlife Management—43 CFR governments. After the NEPA review is
NEPA and other relevant regulations 6000; completed, coordination will often
and requirements for environmental (19) Recreation Management—43 CFR continue throughout project
review related to each applicant’s 8300; and implementation, monitoring, and
proposed action. The purpose of making (20) Wilderness Management—43 evaluation.
these regulations and requirements CFR 6300. D. Involve the public: The public must
known in advance is to assist the be involved early and continuously, as
applicant in the development of an 11.4 General Requirements
appropriate, throughout the NEPA
adequate and accurate description of the The Council on Environmental process. The Responsible Official shall
proposed action when the applicant Quality (CEQ) regulations state that ensure that:
submits their project application. The federal agencies shall reduce paperwork (1) The type and level of public
list provided to the applicant may not and delay (40 CFR 1500.4 and 1500.5) involvement shall be commensurate
fully disclose all relevant regulations to the fullest extent possible. The with the NEPA analysis needed to make
and requirements because additional information used in any NEPA analysis the decision.
requirements could be identified after must be of high quality. Accurate (2) When feasible, communities can
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review of the applicant’s proposal scientific analysis, agency expert be involved through consensus-based
document(s) and as a result of the comments, and public scrutiny are management activities. Consensus-based
‘‘scoping’’ process. essential to implementing the NEPA (40 management includes direct community
(4) The applicant is encouraged to CFR 1500.1(b)). Environmental involvement in the BLM activities
advise the BLM of their intentions early documents should be concise and subject to NEPA analyses, from initial
on in their planning process. Early written in plain language (40 CFR scoping to implementation and

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monitoring of the impacts of the does not conform to the plan, the (1) The need for the proposal.
decision. Consensus-based management Responsible Official may: (2) Alternatives as described in
seeks to achieve agreement from diverse (A) Reject the proposal, Section 102(2)(E) of NEPA.
interests on the goals, purposes, and (B) Modify the proposal to conform to (3) The environmental impacts of the
needs of the BLM plans and activities the land use plan, or proposed action and alternatives.
and the methods needed to achieve (C) Complete appropriate plan (4) A listing of agencies and persons
those ends. The BLM retains exclusive amendments and associated NEPA consulted.
decision-making responsibility and compliance requirements prior to C. An EA is usually the appropriate
shall exercise that responsibility in a proceeding with the proposed action. NEPA document for:
timely manner. (1) Land Use Plan Amendments;
11.6 Existing Documentation (2) Land use plan implementation
E. Implement Adaptive Management:
(Determination of NEPA Adequacy) decisions, including but not limited to
The Responsible Official is encouraged
to build ‘‘Adaptive Management’’ The Responsible Official may analysis for implementation plans such
practice in to their proposed actions and consider using existing NEPA analysis as watershed plans or coordinated
NEPA compliance activities and train for a proposed action when the record resource activity plans, resource use
personnel in this important documents show that the following permits (except for those that are
environmental concept. conditions are met. categorically excludable), and site-
Adaptive Management in the DOI is a (A) The proposed action is adequately specific project plans, such as
system of management practices based covered by (i.e., is within the scope of construction of a trail.
on clearly identified outcomes, and analyzed in) relevant existing D. An EA should be completed when
monitoring to determine if management analyses, data, and records; and the Responsible Official is uncertain of
actions are meeting outcomes, and the (B) There are no new circumstances, the potential for significant impacts and
facilitation of management changes to new information, or unanticipated or needs further analysis to make the
ensure that outcomes are met, or unanalyzed environmental impacts that determination.
reevaluated as necessary. Such warrant new or supplemental analysis. E. If, for any of these actions, it is
reevaluation may require new or If the Responsible Official determines anticipated or determined that an EA is
supplemental NEPA compliance. that existing NEPA documents not appropriate because of potential
Adaptive Management recognizes that adequately analyzed the effects of the significant impacts, an EIS will be
knowledge about natural resource proposed action, this determination, prepared.
systems is sometimes uncertain and is usually prepared in a Determination of 11.8 Major Actions Requiring an EIS
the preferred method for addressing NEPA Adequacy (DNA) worksheet to
these cases. The preferred alternative provide the administrative record A. An EIS level analysis should be
should include sufficient flexibility to support, serves as an interim step in the completed when an action meets either
allow for adjustments in BLM’s internal decision-making of the two following criteria.
(1) If the impacts of a proposed action
implementation in response to process. The DNA is intended to
are expected to be significant; or
monitoring results. evaluate the coverage of existing (2) In circumstances where a
F. Train for public and community documents and the significance of new proposed action is directly related to
involvement: The BLM employee(s) that information, but does not itself provide another action(s), and cumulatively the
facilitate(s) public and community NEPA analysis. If the Responsible effects of the actions taken together
involvement in the NEPA process Official concludes that the proposed would be significant, even if the effects
should have training in public action(s) warrant additional review, of the actions taken separately would
involvement, alternative dispute information from the DNA worksheet not be significant,
resolution, negotiation, meeting may be used to facilitate the preparation B. The following types of BLM actions
facilitation, collaboration, and/or of the appropriate level of NEPA will normally require the preparation of
partnering. analysis. an EIS:
G. Limitations on Actions during the The BLM’s NEPA Handbook and (1) Approval of Resource Management
NEPA process: The following guidance program specific regulations and Plans.
may aid in fulfilling the requirements of guidance describe additional steps (2) Proposals for Wild and Scenic
40 CFR 1506.1. During the preparation needed to make and document the Rivers and National Scenic and Historic
of a program or plan NEPA document, agency’s final determination regarding a Trails.
the Responsible Official may undertake proposed action. (3) Approval of regional coal lease
any major Federal action within the sales in a coal production region.
scope and analyzed in the existing 11.7 Actions Requiring an
Environmental Assessment (EA) (4) Decisions to issue a coal
NEPA document supporting the current preference right lease.
plan or program, so long as there is A. An EA is a concise public (5) Approval of applications to the
adequate NEPA documentation to document that serves to: BLM for major actions in the following
support the individual action. (1) Provide sufficient evidence and categories:
analysis for determining whether to (a) Sites for steam-electric
11.5 Plan Conformance prepare an environmental impact powerplants, petroleum refineries,
Where a BLM land use plan (LUP) statement (EIS) or a Finding of No synfuel plants, and industrial facilities;
exists, a proposed action must be in Significant Impact (FONSI); and
conformance with the plan. This means (2) Aid the BLM’s compliance with (b) Rights-of-way for major reservoirs,
that the proposed action must be NEPA when an EIS is not necessary; and canals, pipelines, transmission lines,
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specifically provided for in the plan, or (3) Facilitate preparation of an EIS highways, and railroads.
if not specifically mentioned, the when one is necessary. (6) Approval of operations that would
proposal must be clearly consistent with B. Unlike an EIS that requires much result in liberation of radioactive tracer
the terms, conditions, and decisions of more, an EA must include the following materials or nuclear stimulation.
the plan or plan as amended. If it is four items identified in 40 CFR (7) Approval of any mining operations
determined that the proposed action 1508.9(b): where the area to be mined, including

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any area of disturbance, over the life of (3) Approval of unitization Districts and Lakeview District—
the mining plan, is 640 acres or larger agreements, communitization Klamath Falls Resource Area in Oregon.
in size. agreements, drainage agreements, (7) Harvesting live trees not to exceed
C. If potentially significant impacts underground storage agreements, 70 acres, requiring no more than 0.5
are not anticipated for these actions, an development contracts, or geothermal mile of temporary road construction.
EA will be prepared. unit or participating area agreements. Such activities:
(4) Approval of suspensions of (a) Shall not include even-aged
11.9 Actions Eligible for a Categorical regeneration harvests or vegetation type
Exclusion (CX) operations, force majeure suspensions,
and suspensions of operations and conversions.
The Departmental Manual (516 DM production. (b) May include incidental removal of
2.3A(3) and appendix 2) requires that (5) Approval of royalty trees for landings, skid trails, and road
before any action described in the determinations, such as royalty rate clearing.
following list of CXs is used, the list of reductions. (c) May include temporary roads
‘‘extraordinary circumstances’’ must be (6) Approval of Notices of Intent to which are defined as roads authorized
reviewed for applicability. If a CX does conduct geophysical exploration of oil, by contract, permit, lease, other written
not pass the ‘‘extraordinary gas, or geothermal, pursuant to 43 CFR authorization, or emergency operation
circumstances’’ test, the proposed action 3150 or 3250, when no temporary or not intended to be part of the BLM
analysis defaults to either an EA or an new road construction is proposed. transportation system and not necessary
EIS. When no ‘‘extraordinary for long-term resource management.
circumstances’’ apply, the following C. Forestry Temporary roads shall be designed to
activities do not require the preparation (1) Land cultivation and silvicultural standards appropriate for the intended
of an EA or EIS. In addition, see 516 DM activities (excluding herbicide uses, considering safety, cost of
2, appendix 1 for a list of DOI-wide application) in forest tree nurseries, transportation, and impacts on land and
categorical exclusions. As proposed seed orchards, and progeny test sites. resources; and
actions are designed and then reviewed (2) Sale and removal of individual (d) Shall require the treatment of
against the CX list, proposed actions or trees or small groups of trees which are temporary roads constructed or used so
activities must be, at a minimum, dead, diseased, injured, or which as to permit the reestablishment by
consistent with the DOI and the BLM constitute a safety hazard, and where artificial or natural means, or vegetative
regulations, manuals, handbooks, access for the removal requires no more cover on the roadway and areas where
policies, and applicable land use plans than maintenance to existing roads. the vegetative cover was disturbed by
regarding design features, best (3) Seeding or reforestation of timber the construction or use of the road, as
management practices, terms and sales or burn areas where no chaining is necessary to minimize erosion from the
conditions, conditions of approval, and done, no pesticides are used, and there disturbed area. Such treatment shall be
stipulations. is no conversion of timber type or designed to reestablish vegetative cover
conversion of non-forest to forest land. as soon as practicable, but at least
A. Fish and Wildlife within 10 years after the termination of
Specific reforestation activities covered
(1) Modification of existing fences to include: seeding and seedling plantings, the contract.
provide improved wildlife ingress and Examples include, but are not limited
shading, tubing (browse protection),
egress. to:
paper mulching, bud caps, ravel
(2) Minor modification of water (a) Removing individual trees for
protection, application of non-toxic big
developments to improve or facilitate sawlogs, specialty products, or
game repellant, spot scalping, rodent
wildlife use (e.g., modify enclosure fuelwood.
trapping, fertilization of seed trees, (b) Commercial thinning of
fence, install flood valve, or reduce fence construction around out-planting
ramp access angle). overstocked stands to achieve the
sites, and collection of pollen, scions desired stocking level to increase health
(3) Construction of perches, nesting
and cones. and vigor.
platforms, islands, and similar
(4) Pre-commercial thinning and (8) Salvaging dead or dying trees not
structures for wildlife use.
(4) Temporary emergency feeding of brush control using small mechanical to exceed 250 acres, requiring no more
wildlife during periods of extreme devices. than 0.5 mile of temporary road
adverse weather conditions. (5) Disposal of small amounts of construction. Such activities:
(5) Routine augmentations, such as miscellaneous vegetation products (a) May include incidental removal of
fish stocking, providing no new species outside established harvest areas, such live or dead trees for landings, skid
are introduced. as Christmas trees, wildings, floral trails, and road clearing.
(6) Relocation of nuisance or products (ferns, boughs, etc.), cones, (b) May include temporary roads
depredating wildlife, providing the seeds, and personal use firewood. which are defined as roads authorized
relocation does not introduce new (6) Felling, bucking, and scaling by contract, permit, lease, other written
species into the ecosystem. sample trees to ensure accuracy of authorization, or emergency operation
(7) Installation of devices on existing timber cruises. Such activities: not intended to be part of the BLM
facilities to protect animal life, such as (a) Shall be limited to an average of transportation system and not necessary
raptor electrocution prevention devices. one tree per acre or less, for long-term resource management.
(b) Shall be limited to gas-powered Temporary roads shall be designed to
B. Oil, Gas, and Geothermal Energy chainsaws or hand tools, standards appropriate for the intended
(1) Issuance of future interest leases (c) Shall not involve any road or trail uses, considering safety, cost of
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under the Mineral Leasing Act for construction, transportation, and impacts on land and
Acquired Lands, where the subject (d) Shall not include the use of resources; and
lands are already in production. ground based equipment or other (c) Shall require the treatment of
(2) Approval of mineral lease manner of timber yarding, and temporary roads constructed or used so
adjustments and transfers, including (e) Shall be limited to the Coos Bay, as to permit the reestablishment, by
assignments and subleases. Eugene, Medford, Roseburg, and Salem artificial or natural means, of vegetative

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cover on the roadway and areas where insect or disease, such as emerald ash transportation, and impacts on land and
the vegetative cover was disturbed by borer, Asian longhorned beetle, or resources; and
the construction or use of the road, as sudden oak death pathogen. (e) Shall require the treatment of
necessary to minimize erosion from the temporary roads constructed or used so
D. Rangeland Management as to permit the reestablishment, by
disturbed area. Such treatment shall be
designed to reestablish vegetative cover (1) Approval of transfers of grazing artificial or natural means, of vegetative
as soon as practicable, but at least preference. cover on the roadway and areas where
within 10 years after the termination of (2) Placement and use of temporary the vegetative cover was disturbed by
the contract. (not to exceed one month) portable the construction or use of the road, as
(d) For this CX, a dying tree is defined corrals and water troughs, providing no necessary to minimize erosion from the
as a standing tree that has been severely new road construction is needed. disturbed area. Such treatment shall be
damaged by forces such as fire, wind, (3) Temporary emergency feeding of designed to reestablish vegetative cover
ice, insects, or disease, and that in the livestock or wild horses and burros as soon as practicable, but at least
judgment of an experienced forest during periods of extreme adverse within 10 years after the termination of
professional or someone technically weather conditions. the contract.
trained for the work, is likely to die (4) Removal of wild horses or burros (11) Issuance of livestock grazing
within a few years. from private lands at the request of the permits/leases where
Examples include, but are not limited landowner. (a) The new grazing permit/lease is
to: (5) Processing (transporting, sorting, consistent with the use specified on the
(a) Harvesting a portion of a stand providing veterinary care, vaccinating, previous permit/lease, such that
damaged by a wind or ice event. testing for communicable diseases, (1) the same kind of livestock is
(b) Harvesting fire damaged trees. training, gelding, marketing, grazed,
(9) Commercial and non-commercial maintaining, feeding, and trimming of (2) the active use previously
sanitation harvest of trees to control hooves of) excess wild horses and authorized is not exceeded, and
insects or disease not to exceed 250 burros. (3) grazing does not occur more than
acres, requiring no more than 0.5 miles (6) Approval of the adoption of 14 days earlier or later than as specified
of temporary road construction. Such healthy, excess wild horses and burros. on the previous permit/lease, and
activities: (7) Actions required to ensure (b) The grazing allotment(s) has been
(a) May include removal of infested/ assessed and evaluated and the
compliance with the terms of Private
infected trees and adjacent live Responsible Official has documented in
Maintenance and Care agreements.
uninfested/uninfected trees as a determination that the allotment(s) is
(8) Issuance of title to adopted wild
determined necessary to control the (1) meeting land health standards, or
horses and burros.
spread of insects or disease; and (2) not meeting land health standards
(b) May include incidental removal of (9) Destroying old, sick, and lame due to factors that do not include
live or dead trees for landings, skid wild horses and burros as an act of existing livestock grazing.
trails, and road clearing. mercy.
(c) May include temporary roads (10) Vegetation management E. Realty
which are defined as roads authorized activities, such as seeding, planting, (1) Withdrawal extensions or
by contract, permit, lease, other written invasive plant removal, installation of modifications, which only establish a
authorization, or emergency operation erosion control devices (e.g., mats/ new time period and entail no changes
not intended to be part of the BLM straw/chips), and mechanical in segregative effect or use.
transportation system and not necessary treatments, such as crushing, piling, (2) Withdrawal revocations,
for long-term resource management. thinning, pruning, cutting, chipping, terminations, extensions, or
Temporary roads shall be designed to mulching, mowing, and prescribed fire modifications; and classification
standards appropriate for the intended when the activity is necessary for the terminations or modifications which do
uses, considering safety, cost of management of vegetation on public not result in lands being opened or
transportation, and impacts on land and lands. Such activities: closed to the general land laws or to the
resources; and (a) Shall not exceed 4,500 acres per mining or mineral leasing laws.
(d) Shall require the treatment of prescribed fire project and 1,000 acres (3) Withdrawal revocations,
temporary roads constructed or used so for other vegetation management terminations, extensions, or
as to permit the reestablishment, by projects; modifications; classification
artificial or natural means, of vegetative (b) Shall not be conducted in terminations or modifications; or
cover on the roadway and areas where Wilderness areas or Wilderness Study opening actions where the land would
the vegetative cover was disturbed by Areas; be opened only to discretionary land
the construction or use of the road, as (c) Shall not include the use of laws and where subsequent
necessary to minimize erosion from the herbicides, pesticides, biological discretionary actions (prior to
disturbed area. Such treatment shall be treatments or the construction of new implementation) are in conformance
designed to reestablish vegetative cover permanent roads or other new with and are covered by a Resource
as soon as practicable, but at least permanent infrastructure; Management Plan/EIS (or plan
within 10 years after the termination of (d) May include temporary roads amendment and EA or EIS).
the contract. which are defined as roads authorized (4) Administrative conveyances from
Examples include, but are not limited by contract, permit, lease, other written the Federal Aviation Administration
to: authorization, or emergency operation (FAA) to the State of Alaska to
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(a) Felling and harvesting trees not intended to be part of the BLM accommodate airports on lands
infested with mountain pine beetles and transportation system and not necessary appropriated by the FAA prior to the
immediately adjacent uninfested trees to for long-term resource management. enactment of the Alaska Statehood Act.
control expanding spot infestations; and Temporary roads shall be designed to (5) Actions taken in conveying
(b) Removing or destroying trees standards appropriate for the intended mineral interest where there are no
infested or infected with a new exotic uses, considering safety, cost of known mineral values in the land under

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Federal Register / Vol. 72, No. 156 / Tuesday, August 14, 2007 / Notices 45541

Section 209(b) of the Federal Land restore the land to its natural or original H. Recreation Management
Policy and Management Act of 1976 condition. (1) Issuance of Special Recreation
(FLPMA). Permits for day use or overnight use up
F. Solid Minerals
(6) Resolution of class one color-of- to 14 consecutive nights; that impacts
title cases. (1) Issuance of future interest leases no more than 3 staging area acres; and/
(7) Issuance of recordable disclaimers under the Mineral Leasing Act for or for recreational travel along roads,
of interest under Section 315 of FLPMA. Acquired Lands where the subject lands trails, or in areas authorized in a land
(8) Corrections of patents and other are already in production. use plan. This CX cannot be used for
conveyance documents under Section (2) Approval of mineral lease commercial boating permits along Wild
316 of FLPMA and other applicable readjustments, renewals, and transfers and Scenic Rivers. This CX cannot be
statutes. including assignments and subleases. used for the establishment or issuance
(9) Renewals and assignments of (3) Approval of suspensions of of Special Recreation Permits for
leases, permits, or rights-of-way where operations, force majeure suspensions, ‘‘Special Area’’ management (43 CFR
no additional rights are conveyed and suspensions of operations and 2932.5).
beyond those granted by the original production.
authorizations. (4) Approval of royalty I. Emergency Stabilization
(10) Transfer or conversion of leases, determinations, such as royalty rate (1) Planned actions in response to
permits, or rights-of-way from one reductions and operations reporting wildfires, floods, weather events,
agency to another (e.g., conversion of procedures. earthquakes, or landslips that threaten
Forest Service permits to a BLM Title V (5) Determination and designation of public health or safety, property, and/or
Right-of-way). logical mining units. natural and cultural resources, and that
(11) Conversion of existing right-of- (6) Findings of completeness are necessary to repair or improve lands
way grants to Title V grants or existing furnished to the Office of Surface unlikely to recover to a management-
leases to FLPMA Section 302(b) leases Mining Reclamation and Enforcement approved condition as a result of the
where no new facilities or other changes for Resource Recovery and Protection event. Such activities shall be limited
are needed. Plans. to: repair and installation of essential
(12) Grants of right-of-way wholly erosion control structures; replacement
(7) Approval of minor modifications
within the boundaries of other or repair of existing culverts, roads,
to or minor variances from activities
compatibly developed rights-of-way. trails, fences, and minor facilities;
described in an approved exploration
(13) Amendments to existing rights- construction of protection fences;
plan for leasable, salable, and locatable
of-way, such as the upgrading of planting, seeding, and mulching; and
minerals (e.g., the approved plan
existing facilities, which entail no removal of hazard trees, rocks, soil, and
identifies no new surface disturbance
additional disturbances outside the other mobile debris from, on, or along
outside the areas already identified to be
right-of-way boundary. roads, trails, campgrounds, and
disturbed).
(14) Grants of rights-of-way for an watercourses. These activities:
overhead line (no pole or tower on BLM (8) Approval of minor modifications
(a) Shall be completed within one
land) crossing over a corner of public to or minor variances from activities
year following the event;
land. described in an approved underground
(b) Shall not include the use of
or surface mine plan for leasable
(15) Transfers of land or interest in herbicides or pesticides;
minerals (e.g., change in mining
land to or from other bureaus or federal (c) Shall not include the construction
sequence or timing).
agencies where current management of new roads or other new permanent
will continue and future changes in (9) Digging of exploratory trenches for infrastructure;
management will be subject to the mineral materials, except in riparian (d) Shall not exceed 4,200 acres; and
NEPA process. areas. (e) May include temporary roads
(16) Acquisition of easements for an (10) Disposal of mineral materials, which are defined as roads authorized
existing road or issuance of leases, such as sand, stone, gravel, pumice, by contract, permit, lease, other written
permits, or rights-of-way for the use of pumicite, cinders, and clay, in amounts authorization, or emergency operation
existing facilities, improvements, or not exceeding 50,000 cubic yards or not intended to be part of the BLM
sites for the same or similar purposes. disturbing more than 5 acres, except in transportation system and not necessary
(17) Grant of a short rights-of-way for riparian areas. for long-term resource management.
utility service or terminal access roads G. Transportation Temporary roads shall be designed to
to an individual residence, outbuilding, standards appropriate for the intended
or water well. (1) Incorporation of eligible roads and uses, considering safety, cost of
(18) Temporary placement of a trails in any transportation plan when transportation, and impacts on land and
pipeline above ground. no new construction or upgrading is resources; and
(19) Issuance of short-term (3 years or needed. (f) Shall require the treatment of
less) rights-of-way or land use (2) Installation of routine signs, temporary roads constructed or used so
authorizations for such uses as storage markers, culverts, ditches, waterbars, as to permit the reestablishment by
sites, apiary sites, and construction sites gates, or cattleguards on/or adjacent to artificial or natural means, or vegetative
where the proposal includes roads and trails identified in any land cover on the roadway and areas where
rehabilitation to restore the land to its use or transportation plan, or eligible for the vegetative cover was disturbed by
natural or original condition. incorporation in such plan. the construction or use of the road, as
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(20) One-time issuance of short-term (3) Temporary closure of roads and necessary to minimize erosion from the
(3 years or less) rights-of-way or land trails. disturbed area. Such treatment shall be
use authorizations which authorize (4) Placement of recreational, special designed to reestablish vegetative cover
trespass action where no new use or designation, or information signs, visitor as soon as practicable, but at least
construction is allowed, and where the registers, kiosks, and portable sanitation within 10 years after the termination of
proposal includes rehabilitation to devices. the contract.

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45542 Federal Register / Vol. 72, No. 156 / Tuesday, August 14, 2007 / Notices

J. Other restored to their natural or original abandoned automobiles, fences, and


(1) Maintaining land use plans in condition within the same work season. buildings, including those built in
(5) Reserved. trespass and reclamation of the site
accordance with 43 CFR 1610.5–4. (6) A single trip in a one month
(2) Acquisition of existing water when little or no surface disturbance is
period for data collection or observation involved.
developments (e.g., wells and springs) sites.
on public land. (7) Construction of snow fences for (11) Actions where the BLM has
(3) Conducting preliminary hazardous safety purposes or to accumulate snow concurrence or co-approval with
materials assessments and site for small water facilities. another DOI agency and the action is
investigations, site characterization (8) Installation of minor devices to categorically excluded for that DOI
studies and environmental monitoring. protect human life (e.g., grates across agency.
Included are siting, construction, mines). (12) Rendering formal classification of
installation and/or operation of small (9) Construction of small protective
monitoring devices such as wells, lands as to their mineral character,
enclosures, including those to protect
particulate dust counters and automatic waterpower, and water storage values.
reservoirs and springs and those to
air or water samples. protect small study areas. [FR Doc. E7–15746 Filed 8–13–07; 8:45 am]
(4) Use of small sites for temporary (10) Removal of structures and BILLING CODE 4310–84–P
field work camps where the sites will be materials of no historical value, such as
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