[Federal Register Volume 72, Number 156 (Tuesday, August 14, 2007)]
[Notices]
[Pages 45504-45542]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-15746]



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Part II





Department of the Interior





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Bureau of Land Management



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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

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

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DEPARTMENT OF THE INTERIOR

Bureau of Land Management

[516 DM 11; WO-210-1610 24 1A]


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

AGENCY: Bureau of Land Management, Interior.

ACTION: Notice of final action.

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SUMMARY: The Bureau of Land Management (BLM) gives notice of revised 
policies and procedures for implementing the National Environmental 
Policy Act (NEPA), as amended, Executive Order (E.O.) 11514, as 
amended, E.O. 12114, and Council on Environmental Quality (CEQ) 
regulations implementing NEPA. These final implementing procedures are 
being issued as Chapter 11 of the Department of the Interior's 
Departmental Manual Part 516 (516 DM 11) and supersedes previous 
implementation guidance. These revisions update the procedures used to 
implement NEPA for actions taken in managing public lands. The BLM's 
NEPA compliance procedures can be found at the Department of the 
Interior (DOI) Electronic Library of Interior Policies (ELIPS) http://elips.doi.gov.
    The following sections in 516 DM 11 (dated 5/27/04) are affected by 
this Federal Register notice: Purpose (11.1); NEPA Responsibilities 
(11.2); External Applicant's Guidance (11.3); General Requirements 
(11.4), Parts A-G; Plan Conformance (11.5); Existing Documentation 
(11.6), Parts A-E; Actions Requiring an Environmental Assessment 
(11.7), Parts A-E; and Actions Eligible for Categorical Exclusions 
(11.9), categories B-D and G-J. New sub-parts have been added to the 
Oil, Gas and Geothermal Energy (B), Forestry (C), and Rangeland 
Management (D) categories. Two new categories have been added: 
Recreation Management (H) and Emergency Stabilization (I). 
Transportation category sub-parts G(1), (2), and (3) have been expanded 
to include trails.

DATES: Effective Date: The revised 516 DM 11, including changes and 
additions to the categorical exclusions (CXs), is effective upon the 
date of publication of this notice in the Federal Register.

ADDRESSES: The BLM's revisions to 516 DM 11 can be accessed 
electronically via the Internet at http://elips.doi.gov. Hard copies 
are available by contacting Peg Sorensen, Division of Planning and 
Science Policy, at 202-452-0364.

FOR FURTHER INFORMATION CONTACT: Peg Sorensen, Division of Planning and 
Science Policy, at 202-452-0364.

SUPPLEMENTARY INFORMATION: Final revised NEPA procedures for the DOI 
were published in the Federal Register (69 FR 10866-10866, March 8, 
2004), and (70 FR 32840-32844, June 6, 2005). The DOI bureau and office 
specific procedures are published as chapters in Part 516 of the 
Departmental Manual. The 516 DM 11 addresses the BLM policy and 
procedures to assure compliance with the spirit and intent of NEPA.
    A notice of the proposed revisions to the BLM's ``National 
Environmental Policy Act Revised Implementing Procedures'' for 516 DM 
11 was published in the Federal Register (71 FR 4159-4167, January 25, 
2006), with additional information available at http://www.blm.gov/planning/news.html. A 30-day public comment period followed that 
publication. Consideration of the comments received resulted in the 
following modifications to the proposed revised implementing 
procedures.
    11.1. Purpose: No Change.
    11.2. NEPA Responsibilities: Edited title to emphasize that there 
are multiple responsibilities.
    Parts A-E: Edited to improve readability.
    Parts B-E: Clarified executive and delegated leadership 
responsibilities.
    Parts E & F: Moved sub-part E(1) to a new part F.
    11.3. External Applicants' Guidance: Edited title to clarify that 
this section only applies to external applicants who are proposing an 
action. Language was added from the NEPA to clarify text within the 
section.
    Part A. General, sub-parts A(2)-(4): Edited to improve readability.
    Sub-part A(3): Replaced the ``State Director'' with ``the 
Responsible Official'' to clarify that the authorized activity is not 
limited to State Directors.
    Part B. Regulations, preamble: Edited to improve readability.

    11.4. General Requirements:
    Part A-H: Revised section titles to create parallel structure. 
Edited and reorganized all sections to clarify requirements and improve 
readability.
    Part A: Added ``integrating NEPA requirements with other 
environmental review and consultation requirements'' (from the former 
part D) to reduce paperwork and delays.
    Part B: Addressed the elimination of duplicate tribal, State, and 
local government procedures, and the use of common databases and joint 
planning processes, meetings, investigations, and NEPA analyses.
    Part C: Addressed consultation and coordination requirements.
    Part D, sub-parts (1) & (2): Addressed public involvement 
requirements. Eliminated the reference to ``consensus-based decision-
making'' and replaced it with ``consensus-based management'' to be 
consistent with direction provided by the DOI. Inserted the DOI's 
definition of ``consensus-based management'' and expectations regarding 
the process.
    Part E: Redefined ``adaptive management'' to match the DOI 
definition.
    Part F: Clarified a training requirement for the BLM employees 
facilitating public and community involvement.
    Part G: Clarified action limits during environmental review.
    11.5 Plan Conformance: Edited to improve readability. Clarified 
what the Responsible Official's options are when a proposed action does 
not conform to an approved plan.

    11.6 Existing Documentation (Determination of NEPA Adequacy): 
Edited the title to create a section header that conforms to a 
standardized format. This section was rewritten to clarify the BLM's 
policy regarding the use of existing documentation. Operational 
information on how to conduct a Determination of NEPA Adequacy (DNA) 
will be provided in the BLM NEPA Handbook (H-1790-1).

    11.7 Actions Requiring an Environmental Assessment (EA):
    Part A: Moved part A information to a new part D. Part A now 
defines the purpose and need for an EA.
    Part B: Inserted a new requirement to consult 40 CFR 1508.9(b) 
which outlines ``discussion'' requirements in an EA.
    Part C: Edited to clarify and enhance general understanding of when 
an EA is appropriate.
    Part D: Directs the Responsible Official to consider an EA if there 
are uncertain impacts.
    Part E: This new part directs the Responsible Official to prepare 
an Environmental Impact Statement (EIS) if it is determined that a CX 
or an EA is not appropriate. Removed unnecessary text ``processed in 
accordance with 40 CFR 1502.''

    11.8 Major Actions Requiring an Environmental Impact Statement 
(EIS):
    Part A(1): Refined the text to clarify criteria used to consider 
when determining whether to prepare an EIS level analysis or not. 
Removed the following statement: ``or the impact

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analysis of an action is likely to be highly controversial.'' This edit 
was made to clarify the criteria the BLM considers when determining 
whether an EIS level analysis is needed. Supplementary guidance on how 
to determine significance when considering whether to prepare an EIS, 
such as when effects should be considered ``highly controversial,'' 
will be placed in the BLM NEPA Handbook (BLM H-1790-1).
    Part B: Dropped the term ``Wilderness'' from the list of actions 
typically requiring an EIS. This edit reflects current program policy 
that there will no longer be proposals to designate Wilderness Areas 
under Section 603 of FLPMA. Supplementary guidance on how to implement 
policy regarding preparation of EISs will be placed in the BLM NEPA 
Handbook (BLM H-1790-1).
    Part C: Removed unnecessary text ``processed in accordance with 40 
CFR 1501.4(e)(2).''

    11.9 Actions Eligible for a Categorical Exclusion:
    Preamble: Replaced ``exceptions'' with ``extraordinary 
circumstances'' to reflect a revision to 516 DM 2.3A(3) made by the DOI 
in June 2005. Added a statement identifying the DOI-wide CX in 516 DM 
2, appendix 1, available for the BLM consideration. The BLM reviewed 
supporting data and conclusions of no significant effect for all 
proposed CXs based on comments received. Identified below are revisions 
to final CX language based on this review. Some additional information 
was added to the administrative file based on the review. In addition, 
the BLM reviewed the proposed CXs and this final action establishing 
the final CXs in light of CEQ's proposed guidance, ``Establishing, 
Revising and Using Categorical Exclusions under the National 
Environmental Policy Act,'' (71 FR 54816-54820, September 19, 2006). 
The BLM believes that the establishment of the new CXs is consistent 
with CEQ's proposed guidance. Based on discussions, review, and to 
clarify the intent of the BLM, language has been added indicating the 
need for all proposed actions and activities to be, at a minimum, 
consistent with the DOI and the BLM regulations, manuals, handbooks, 
policies, and applicable Land Use Plans (LUP) regarding design 
features, Best Management Practices, Terms and Conditions, Conditions 
of Approval, and Stipulations.

    A. Fish and Wildlife: Fixed a typographical error in sub-category 
(2) by replacing ``value'' with ``valve.''

    B. Oil, Gas, and Geothermal Energy:
    Sub-category (6): Removed text ``including the establishment of 
terms and conditions,'' and edited language to more accurately describe 
the actions covered.
    Sub-category (7): The BLM has decided not to finalize this proposed 
CX (CX B(7)) for the category of actions described as, ``approving the 
drilling or subsequent operations of a geothermal well within a 
developed field for which a LUP and/or an environmental document, 
prepared pursuant to NEPA, analyzed such drilling as within the scope 
of a reasonably foreseeable future activity.'' When these actions are 
within the scope of the previous NEPA document and sufficiently 
analyzed therein, and that determination is documented, no further NEPA 
analysis is required. In consultation with CEQ, the BLM has decided 
that more focused NEPA documents should be prepared at the outset to 
support subsequent implementation of the geothermal field development 
plan or utilization plan, and that this practice, combined with a DNA, 
would provide a more appropriate method for streamlining the 
documentation of the evaluation of subsequent infill well proposals 
than a new CX.
    Sub-category (8): The BLM has decided not to finalize this proposed 
CX. In consultation with CEQ, it was determined that the action of 
issuing a geothermal site license or operational permit (CX B(8)) is an 
administrative/ministerial function subsequent to the approval of a 
utilization plan. Approval of a utilization plan involves analysis of 
the environmental effects of constructing and operating the planned 
facility. The administrative action of issuing the site license and 
permit to operate does not result in additional environmental effects. 
Therefore, the BLM will eliminate this additional NEPA review, as 
unnecessary and redundant.

    C. Forestry:
    Sub-category (6): Modified the proposed language and format to 
eliminate confusion about the sample tree area limitation and 
restricted activities. Added Lakeview District, Klamath Falls Resource 
Area to the list of locations where this CX may be used. The Resource 
Area was mistakenly left out of the proposed limitation and is now 
included because the effects are comparable to the others previously 
listed in this section.
    Sub-categories (7)-(9): Modified the proposed format and syntax. 
Text that defines and limits ``temporary road'' building activities was 
added to be consistent with the U.S. Forest Service (FS) standards and 
regulations. Text that defines and clarifies ``a dying tree'' was added 
for purposes of this category of actions.
    Sub-category (9): Modified the example (a) by replacing southern 
pine beetle with mountain pine beetle to represent a type of beetle 
that occurs in western Oregon.
    D. Rangeland Management:
    The National Research Council published Rangeland Health: New 
Methods to Classify, Inventory, and Monitor Rangelands in 1994. The 
concepts identified in that publication were incorporated in the BLM's 
grazing regulations and the agency used the term ``rangeland health'' 
in much of their initial policy and guidance related to implementing 
those grazing regulations. Although the term ``rangeland health'' was 
first introduced in the grazing regulations, the ``rangeland health 
standards'' really apply to the condition of the land itself regardless 
of the uses that may influence the health of that land. As a result, 
the BLM has begun using the term ``land health'' to avoid the 
misperception that these concepts only apply to the grazing program. 
For this reason, the term ``land health'' is used in the description of 
this proposed CX, even though both terms are likely to be found within 
this document or in other background material supporting this document. 
Use of the term ``land health'' does not represent any substantive 
change in the original definition, concept or use of the term 
``rangeland health'' and the reader should view these terms as 
interchangeable. The proposed rangeland management sub-categories (10) 
and (11) are finalized with the following changes:
    Sub-category (10): Lettered the bullet statements, so the first 
bullet is criteria (a); moved text (bullets two & three) ``shall be 
conducted consistent with the BLM and Departmental procedures and 
applicable land and resource management plans (RMP);'' from here to the 
general CX introduction to reflect that text applies more generally and 
not only to this CX. Modified text of bullet four to exclude use of 
this CX for otherwise qualifying ``vegetation management activities'' 
in Wilderness Study Areas and text becomes new criteria (b). Modified 
bullet five to become criteria (c) and added text to indicate that the 
CX cannot be used for biological treatments. Finally, added text to 
define and limit the use of temporary roads as criteria (d) and (e).
    Sub-category (11): Moved criteria (a) to (b) and modified the 
phrase ``not meeting standards solely due to factors

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other than existing livestock grazing'' to ``not meeting land health 
standards due to factors that do not include existing livestock 
grazing.'' Changed the text to clarify that the CX requires land health 
assessments be completed prior to considering the application of the 
CX. Dropped proposed criteria (b) and replaced it with criteria (a) 
that limits the leases/permits eligible for the CX to those where the 
lease/permit is consistent with the use specified in the previous 
lease/permit, there is no change in the type of livestock, the 
previously authorized active use is not exceeded, and grazing does not 
occur more than 14 days earlier or later than specified on the previous 
lease/permit.
    Sub-category (12): Dropped the proposed CX based on further review 
of supporting data.

    E. Realty:
    The proposed revision of sub-category (16) was dropped upon further 
review.

    F. Solid Minerals: No change was proposed or made.

    G. Transportation:
    Sub-categories (1), (2), and (3): The word ``existing'' which 
originally was used in (1) and (2) has been eliminated because it was 
potentially confusing, and the words ``and trails'' have been approved 
as proposed.
    Sub-category (1) and (2): Replaced ``Incorporating'' for 
``Placing'' in sub-category (1), and added ``eligible'' to modify the 
language to clarify that only roads and trails meeting criteria 
developed in a LUP are to be incorporated into the transportation plan, 
or be subject to the actions specified in sub-category (2).

    H. Recreation Management:
    Sub-category (1): The proposed revision of the previous Category 
``H. Other'' to ``Recreation Management and sub-category ``H(5)'' to 
``H(1)'' was approved as revised. Increased the day and overnight use 
threshold to 14 consecutive nights to be consistent with the practice 
of Responsible Officials under provisions in Title 43 of the Code of 
Federal Regulations (CFR) that allow such officials to set allowable 
length of stay applicable to any casual visitor using public lands (See 
43 CFR 8365.1-2 ``Occupancy and Use,'' and 43 CFR 8365.1-6 
``Supplementary Rules''). This change has also been made to provide 
consistency with the typical length of stay for any casual visitor 
using public lands (43 CFR 8364). Changed wording from ``contiguous 
acres'' to ``staging area acres'' to better define the limits on area 
of impact. Replaced ``travel management areas or networks that are 
designated in an approved LUP'' with ``recreational travel along roads, 
trails, or in areas authorized in a LUP'' because of confusion over 
what constitutes a travel management area or network. Text was added to 
include a limitation that this CX cannot be used for the establishment 
or issuance of Special Recreation Permits (SRP) for ``Special Area'' 
management (43 CFR 2932.5). The requirement for Special Area SRPs and 
the issuance of individual SRPs in ``Special Areas'' must be directed 
by specific land use planning decisions and commensurate NEPA analysis.

    I. Emergency Stabilization: This new section was adopted as 
proposed with the addition of text to define and limit the use of 
temporary roads. The section included a requirement to treat temporary 
roads for rehabilitation.
    Sub-category (1)(e): Moved text ``shall be conducted consistent 
with the BLM and the Department procedures, applicable land and RMPs.'' 
to general CX introduction to reflect that text applies more generally 
and not only to this CX. Renumbered numbered criteria based on the 
removal of this text.

    J. Other: The previous existing sub-part H was moved to sub-part J 
and adopted as proposed with one exception. An existing CX was 
mistakenly left out of the January 25, 2006, Federal Register notice. 
The following existing CX will be placed in sub-part J (12): 
``Rendering formal classification of lands as to their mineral 
character and waterpower and water storage values.'' There is no change 
to the language.

    Appendix 11.1: The DNA Worksheet appendix was deleted. Supplemental 
guidance regarding the use of Existing Documentation remains in section 
11.6.

Comments on the Proposal

    The BLM received more than 72,000 ``comments'' during the 30-day 
comment period (January 25, 2006, to February 24, 2006). A ``comment'' 
is a single, whole submission that may take the form of a letter, 
postcard, email, or fax. These comments came from private citizens, 
elected officials, and groups and individuals representing businesses, 
private organizations, and state and federal agencies. All comments 
received were considered in preparing this final action notice.
    Public comment on the proposed revisions addressed a wide range of 
topics. Many comments support one or more of the proposed revisions or 
favor broadening the scope of the revision, while many others oppose 
one or more of the proposed revisions or recommend more narrowly 
limiting the qualifying criteria for a particular CX. Some comments 
state that the 30-day comment period provided insufficient time to 
review and comment on the BLM's proposed revisions. The BLM received 
extensive and varied comments during the 30-day comment period. Based 
on this robust response, the BLM determined that it was unnecessary to 
extend the public comment period. Some general comments state that the 
BLM is using dated and inadequate scientific information to support 
management decisions. They recommend that the BLM adopt a specific 
process to systematically incorporate the best available science in all 
elements of the BLM public lands management. The BLM Science Strategy 
(September 2000) discusses the role of science in the BLM management of 
the public lands, and articulates a conceptual framework for 
integrating science into the BLM decision-making process. Relevant 
scientific information is brought to the decision-maker's attention by 
members of the interdisciplinary team of professionals, and through 
contract and in-house investigations, science sharing forums, and 
technical reports. In addition, the public, cooperators and partners 
bring scientific information forward during the environmental review 
process. Many comments addressed matters beyond the scope of the 
proposed revisions to the 516 DM 11. These included requests for the 
BLM to add policy statements to the 516 DM 11 pertaining to conformance 
with the Clean Air Act, preserving and honoring valid existing rights, 
and conducting cost-benefit analyses. Some comments addressed land 
management activities that were neither proposed nor analyzed. Some 
comments state that grazing is incompatible with good land stewardship. 
Other comments suggested that the proposed changes to 516 DM 11 
``denied [the public] their constitutional rights'' or would ``cause 
unrestricted use'' of public lands. Responses to most out-of-scope 
comments are not provided.

Responses to Specific Comments on Sections 11.1-11.8

11.1 Purpose

    Comment: Some comments ask how to access 516 DM 11 and the DOI's 
Environmental Statement Memoranda (ESM).
    Response: The BLM provided the Web site address to access 
procedures (516 DM 11) that are being replaced by this Federal Register 
notice in the Summary portion of 71 FR 4159-4167, January 25, 2006. The 
proposed changes to these procedures were published in full in the same 
Federal Register notice and were

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posted on the DOI, ELIPS Web site in the Departmental Manual chapters 
at http://elips.doi.gov. The DOI's ESMs can be accessed through the 
DOI's Web site at http://www.doi.gov/oepc via the descriptions in the 
left-hand column.

11.3 External Applicants' Guidance

    Comment: Some comments ask for information to guide applicants 
interested in the BLM program regulations.
    Response: The purpose of this section is to provide guidance to 
external parties making applications to the BLM. The title has been 
changed to make this clear. A list of potentially relevant regulations 
is located in part B. Additional regulations, policies, directives, and 
guidelines that affect BLM programs may be provided when the applicant 
contacts a Responsible Official and describes their proposed action(s).
    Comment: A concern was expressed about the absence of NEPA 
compliance in the ``applicants'' guidance'' section.
    Response: The text has been clarified to address NEPA requirements 
for private applicants and other non-federal entities as required by 40 
CFR 1501.2(d).

11.4 General Requirements

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

[[Page 45508]]

relying heavily on monitoring and evaluation, which the BLM is often 
unable to support.
    Response: (1) Adaptive Management is a planning tool; it does not 
relieve the BLM of the responsibility of meeting the requirements of 
the NEPA or other laws. The use of AM does not permit the BLM to defer 
``decisions on mitigation and impacts if mitigation fails.'' In fact, a 
more vigorous monitoring strategy will help determine if mitigation is 
working, and if not, it will help speed up the change in management 
action or mitigation strategy. Mitigation and impacts will still be 
addressed in the NEPA document as will the AM process itself. Adaptive 
Management will not be applied to all resource decisions made. (2) 
Stakeholder involvement is a critical aspect of AM. New DOI policy 
clearly links stakeholder involvement to implementation of AM from plan 
development through implementation. Agency decisions on mitigation and 
impacts will not be removed from public review and comment and it is 
hoped that there will be an increased level of public involvement. (3) 
``Significant impacts'' that are detected during monitoring will not be 
removed from the NEPA analysis. Rather, any actions taken to address 
``significant impacts'' that may arise will themselves be subject to 
appropriate NEPA review, including appropriate public involvement. It 
is hoped that a more vigorous stakeholder involvement process using AM 
will improve the BLM's ability to detect impacts earlier and make the 
necessary resource management changes in partnership with stakeholders. 
(4) The AM process will only be used when adequate monitoring and 
evaluation can be assured. Successful AM is dependent on good 
monitoring and evaluation. If the monitoring strategy goes unfulfilled, 
the BLM will need to fall back on a more prescriptive approach.

11.5 Plan Conformance

    Comment: Some comments requested that 516 DM 11 direct the BLM 
offices to reject proposals unless and until their LUPs are updated to 
thoroughly address potential environmental consequences.
    Response: Section 11.5 clarifies the requirement for conformance 
with LUPs, including when a proposal may be rejected.

11.6 Existing Documentation (Determination of NEPA Adequacy)

    Comment: Some comments suggest that 516 DM 11 be revised to 
prescribe a minimum level of interdisciplinary review for completing a 
DNA.
    Response: Section 11.6 has been revised to provide policy guidance 
on the use of existing documentation. Operational specifics on how to 
implement the policy, such as levels of interdisciplinary review, will 
be provided in the BLM NEPA Handbook (H-1790-1).
    Comment: Some comments state that the BLM DNA Worksheet does not 
meet the requirements of NEPA compliance.
    Response: In certain situations, the BLM undertakes a DNA process 
to review whether a proposed action has already been fully analyzed in 
a NEPA document. Where the proposed action has not already been 
analyzed or where it has been analyzed, but new circumstances or 
information has come to light, appropriate NEPA analysis and 
documentation will be prepared. Operational guidance on how to 
implement this policy will be provided in the BLM NEPA Handbook (H-
1790-1). The DNA Worksheet in appendix 1 and implementation-specific 
guidance proposed in the January 25, 2006 Federal Register notice has 
been deleted from 516 DM 11.
    Comment: Some comments state that using the DNA Worksheet process 
provides the potential to overlook environmental differences from 
widely separated projects and to underestimate the cumulative effects 
of nearby projects.
    Response: In accordance with 40 CFR 1502.9(c), section 11.6D states 
that if existing NEPA documentation is inadequate to cover the proposed 
action, an appropriate level NEPA analysis document will be prepared. 
The BLM NEPA Handbook (H-1790-1) provides guidance regarding 
consideration of cumulative impacts when determining whether a DNA can 
be used.

11.7 Actions Requiring an EA

    Comment: Some comments expressed confusion about the differences 
between actions typically requiring an EA and some of the same actions 
proposed in the existing and new CXs.
    Response: The January 25, 2006, proposal included several editorial 
errors in this sub-part. Sub-part 11.7C(1) was revised for the sake of 
clarity.

11.8 Major Actions Requiring an EIS

    Comment: Some comments requested clarification of the term ``highly 
controversial'' with regard to impacts in sub-part 11.8A(1). The 
concern centered on whether the term referred to matters of public/
political controversy versus matters of scientific controversy.
    Response: This sub-part has been revised to remove the term 
``highly controversial'' as criteria for when an EIS is required. 
Guidance on how to determine significance, including when effects 
should be considered ``highly controversial'' is applied in accordance 
with CEQ regulations and requires agencies to consider the degree to 
which effects are likely to be controversial when determining whether 
to prepare an EIS. The BLM applies the ``highly controversial'' concept 
to disagreements about the nature of the effects. Additional 
clarification and examples will be provided in the BLM NEPA Handbook 
(H-1790-1).
    Comment: Some comments express concern that the lists of actions 
that typically require an EA or an EIS were prescriptive, rather than 
discretionary, and did not allow for any flexibility.
    Response: Although 516 DM 11.7C and 11.8A provide lists of actions 
generally requiring EAs or EISs respectively, 516 DM 11.7D, 11.7E and 
11.8B specify the flexibility or discretion allowed regarding the 
actions on these lists, based on potential impact significance.

11.9 Categorical Exclusions

    Responses to section 11.9 comments are divided into two blocks. 
Comments of a general nature that may or may not apply to more than one 
of the proposed CXs are summarized and responded to as ``general 
comments.'' Comments specific to a proposed CX are summarized and 
responded to in order of category (e.g., B. Oil, Gas and Geothermal; C. 
Forestry; D. Rangeland Management; and so forth) as they occur in 516 
DM 11.

General Comments on Categorical Exclusions

    Comment: Some comments state that the CX revisions are illegal; 
could short circuit important safeguards; circumvent existing laws, 
E.O., and the BLM policies; violate the BLM's multiple use mission; and 
provide insufficient protection despite the application of 
``extraordinary circumstances'' (516 DM 2.3(A) and appendix 2).
    Response: The BLM disagrees. The CEQ regulations (40 CFR 1508.4 and 
1507.3) authorize Federal agencies to establish and apply CXs. The BLM 
followed CEQ regulations in proposing additional CXs to reduce 
paperwork and delays (40 CFR 1500.4 and 1500.5) and enable the BLM to 
concentrate on environmental issues that are associated with proposed 
actions that require further analysis in an EA or an EIS. Each of the 
categories of actions in the new CXs were subjected to an 
administrative review. This review determined whether there is 
sufficient supporting

[[Page 45509]]

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

[[Page 45510]]

    Comment: Some comments ask the BLM to describe how cumulative 
impacts of the proposed CX activities would be evaluated. Some comments 
suggest that 516 DM 11 be revised to ensure that the cumulative impacts 
of projects covered by a CX are analyzed.
    Response: An action can only be categorically excluded from further 
NEPA analysis when it has been shown that the action fits within a 
category of actions that has already been determined not to have a 
significant environmental effect on the human environment, individually 
or cumulatively (see 40 CFR 1508.4). For all of the categories of 
actions for which the CXs were proposed, the analysis of the NEPA 
documents prepared for such actions, as well as subsequent evaluations 
of the effects of the actions, showed that the actions did not cause 
significant effects. Further, when considering whether to use a CX, one 
of the ``extraordinary circumstances'' that must be evaluated is 
whether the proposed action may ``have a direct relationship to other 
actions with individually insignificant but cumulatively significant 
environmental effects'' (516 DM 2.3(A)3 and appendix 2 (2.6)). If it 
might, then an EA or an EIS must be completed for the action, and a CX 
cannot be applied.
    Comment: Some comments ask the BLM to evaluate the cumulative 
impacts of the proposed CXs, the revisions to the Northwest Forest 
Plan's (NWFP) Survey and Management Program and Aquatic Conservation 
Strategy; the National Forest Management Act Planning regulations; and 
the National Forest Management Act notices, comment, and appeal 
regulations.
    Response: The new or modified CXs are specific to a revision of the 
procedures described in the 516 DM 11 for implementing the NEPA within 
the BLM. The determination that establishing CXs does not require NEPA 
analysis and documentation has been upheld in Heartwood, Inc. v. U.S. 
Forest Service, 73 F. Supp. 2d 962, 972-73 (S.D. Ill. 1999), aff'd 230 
F.3d 947, 954-55 (7th Cir. 2000) (holding creation of CXs to be an 
establishment of agency procedure for which CEQ regulations do not 
require preparation of an EA or EIS). The CXs proposed in January 2006 
and finalized here are part of the BLM's effort to update internal NEPA 
implementing procedures. A cumulative effects analysis of the 
establishment of these CXs, in relation to the NWFP, the National 
Forest Management Act Planning regulations, and the National Forest 
Management Act is not appropriate in this context. However, in 
developing the Forestry CXs, the BLM reviewed past actions and 
associated NEPA documents. These NEPA documents included analyses of 
cumulative effects, which in relevant instances, included actions taken 
by the Forest Service. The BLM's review of these past actions, the NEPA 
analyses specific to the actions, and anticipated effects, as well as 
the actions' actual effects, allowed the BLM to determine that the 
actions had no individual or cumulative significant impacts, and that 
development of a CX covering such actions was warranted. The final 
determination whether a specific proposed action will have a 
significant cumulative effect or not, is completed at the time the 
specific proposal is reviewed by considering the applicability of any 
extraordinary circumstances.
    Comment: Some comments state that the BLM needs to ensure that 
implementation of all the CXs will not cumulatively result in jeopardy 
to listed endangered species.
    Response: The Responsible Official must ensure that no BLM action 
will jeopardize a listed species under the ESA. Before a CX can be 
used, the Responsible Official must determine that no ``extraordinary 
circumstances'' apply. If ``extraordinary circumstances'' (516 DM 
2.3(A)3 and appendix 2 (2.8)), which addresses endangered species, 
applies, a CX may not be used.

Responses to Specific Comments on Section 11.9--Categorical Exclusions

B. Oil, Gas, and Geothermal Energy (Sub-parts B(6)-(8))

    B(6)--Comments.
    Comment: Some comments state that the proposed CX 11.9B(6) should 
not be implemented because geophysical operations were excluded when 
Congress authorized additional energy development-related CXs under the 
Energy Policy Act of 2005.
    Response: Section 390 of the Energy Policy Act of 2005 does not 
provide for a CX for the geophysical activities described in the 
proposed CXs. The Act does not preclude the appropriate exercise of 
authority to administratively establish CXs in accordance with the 
NEPA, the CEQ regulations, and the DOI and the BLM NEPA procedures.
    Comment: Some comments state that the proposed CX 11.9B(6) is a 
policy change aimed specifically at benefiting the oil and gas industry 
and that as such, is a ``scheme'' to make energy exploration companies 
more money.
    Response: No change to the CX was requested by these comments, no 
changes were made in response. The BLM proposed CX 11.9B(6) because CEQ 
implementing regulations (40 CFR 1509.4 and 1507.3) allow federal 
agencies to identify categories of actions, which normally do not 
require either an EA or an EIS. The development of this CX was based on 
generally accepted analytical procedures, which included completion of 
a census of available data on geophysical exploration. See http://www.blm.gov/planning/news.html. One benefit to all stakeholders of 
adopting new CXs for activities, which have been shown to have no 
individually or cumulatively significant effects, is additional federal 
resources can be redirected to analyzing and mitigating activities 
likely to have significant adverse environmental consequences.
    Comment: Some comments suggest that the proposed CX 11.9B(6) would 
promote the segmentation of a major project into several categorically 
excluded small projects, which would prevent appropriate consideration 
of cumulative impacts.
    Response: The BLM disagrees. Geophysical exploration activities are 
independent actions and not connected actions as defined in NEPA (40 
CFR 1508.25 (a)(1)). Geophysical exploration activities are data 
collection activities used to gather information that may be used to 
inform future decision-making regarding oil, gas or geothermal 
development proposals by providing information on the location of 
energy resources. It is not a forgone conclusion that the energy 
resources identified through this data collection will actually be 
developed. Before a CX can be used, a proposed action must be reviewed 
to determine whether or not any of the ``extraordinary circumstance'' 
(516 DM 2.3(A)3 and appendix 2), applies. In particular, 
``extraordinary circumstance'' 2.6 addresses the potential for 
significant cumulative impacts; if it does apply, the CX cannot be 
used.
    Comment: Some comments state that federal court and administrative 
decisions have either remanded the BLM decisions to approve geophysical 
exploration or affirmed agency decisions, only after the BLM proposed 
additional mitigation measures.
    Response: The data analyzed and reviewed by the BLM validate the 
assertion that the impacts from geophysical operations would not be 
significant. Specific to the comment related to litigation, the data 
indicate that out of 244 projects reviewed, the NEPA analyses of eight 
geophysical exploration projects, supported by EAs, were challenged 
through administrative appeals or litigation. Only two of the eight 
were remanded to the BLM. In one

[[Page 45511]]

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

[[Page 45512]]

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

    B(7) & (8)--Comments.
    Comment: Several comments were received related to proposed CXs 
11.9 B(7) for permitting infill wells within the [reasonable 
foreseeable development] RFD for an established geothermal field, and 
B(8) for the issuance of site licenses to operate geothermal facilities 
whose construction and operation were included in a utilization plan 
NEPA document. Comments addressed such concerns as the potential for 
geothermal activity to affect water-confining soil layers and 
potentially result in the loss of wetted playa areas; impacts on 
special-status species and endangered species and their habitats that 
may result from use of the proposed CXs; and currency of LUPs with 
respect to the ecological status of lands and waters under discussion. 
Some commenters sought to expand the use of these CXs beyond the State 
of Nevada; they felt that Nevada should not be granted special 
consideration over other states and asserted that projects in other 
states could meet the same criteria as used in Nevada. Commenters also 
asked why there was a need for further NEPA analysis, rather than a 
DNA, where the NEPA document for the field

[[Page 45513]]

development or the utilization plan included the activities proposed 
for Geothermal CX 11.9 B(7). In addition, comments expressed interest 
in clarification of what actions CX 11.9 B(8) was intended to cover, 
and what actions would be covered by methods of complying with the 
NEPA.
    Response: Upon review of the BLM's NEPA compliance procedures, in 
general, and in consultation with CEQ, the BLM has decided not to 
finalize proposed CXs 11.9B(7) and 11.9B(8). As explained above in the 
description of modifications made from the January 2006 proposal, the 
BLM has determined first that, regarding B(7) (infill wells), a DNA 
combined with more focused development-stage NEPA documents should 
normally suffice for NEPA compliance, as some commenters suggested, and 
second, that a CX (or an EA) for B(8) is redundant and thus unnecessary 
because no new environmental impacts result from the administrative/
ministerial action of issuing a site license where operation of the 
plant was already covered in the NEPA analysis and documentation 
prepared for the utilization plan. Both of these solutions are 
applicable nationwide. To the extent that comments express concern 
regarding particular resources, the method an agency uses to fulfill 
its NEPA obligations is distinct from the agency's continuing 
obligation to comply with other environmental protection statutes such 
as the Clean Water Act, 33 U.S.C. 1251 et seq., the Endangered Species 
Act, 16 U.S.C. 1531 et seq. (special status species are addressed as 
part of the BLM's conservation plans under Section 2 of the Endangered 
Species Act), and the Federal Land Policy and Management Act, 43 U.S.C. 
1701 et seq. (land use planning). The BLM LUPs are routinely evaluated 
to determine whether the LUP decisions and NEPA analysis are still 
valid. All actions, including those categories of actions considered 
here, must be consistent with an approved LUP. Regardless of the age of 
the LUP(s) affected, each proposed action would also be evaluated on 
its own merits, and updated information provided as necessary in the 
more site- and/or more project-specific NEPA analysis. In most cases, 
for instance, the initial development plans for the types of actions 
contemplated here would have already been analyzed in a project-level 
NEPA document in addition to the LUP.

Responses to Specific Comments on Section 11.9--Categorical Exclusions

C. Forestry (Sub-Parts C(6)-(9))

Broad Concerns That Apply to the New Forestry CXs

    Comment: Some comments state that the proposed Forestry CX 
parameters are inadequate to protect elements of the environment, 
specifically predatory bird nesting sites, woodpecker habitat, soils 
compaction, weed dispersal, small mammal burrows, and surface water 
quality.
    Response: The BLM analysis available at http://www.blm.gov/planning/news.html demonstrates this is not the case. Three of the four 
proposed Forestry CXs, 11.9C(7)-(9), are based on three U.S. Department 
of Agriculture Forest Service (FS) CXs, their supporting data, and an 
analysis by the BLM demonstrating that such proposed actions and their 
environmental effects are comparable when the action is taken by the 
BLM. The FS considered the potential for significant effects during the 
NEPA review process (68 FR 44598-44608, July 29, 2003). Based on 
assessments of local wildlife habitat conditions after the actions were 
taken, no significant cumulative effects were observed by the FS. A few 
of the projects reviewed resulted in minor soil disturbance and 
compaction, and a few others showed that small numbers of noxious weeds 
or invasive plants entered the area where the trees had been removed. 
The FS subject-matter specialists and Responsible Officials found that 
these impacts were within forest plan standards and were not 
significant in the NEPA context (40 CFR 1508.27). Based upon the 
comparison between the FS and the BLM lands, policies, and business 
practices as outlined in the BLM analysis, the BLM actions are not 
expected to result in significant introductions, continued existence, 
or spread of noxious weeds or non-native invasive species. In addition, 
when applying the CXs to the BLM lands, the BLM only considers use of 
the CXs when there are no ``extraordinary circumstances'' (516 DM 
2.3A(3) and appendix 2.12), which will cause individually or 
cumulatively significant impacts on the human environment.
    The fourth proposed CX 11.9C(6), which addresses sample tree 
felling (STF) to gather net timber volume data, is based on a 100 
percent census of STF surveys conducted in five BLM management 
districts in western Oregon from October 1, 2001, through September 30, 
2005. These five Districts (Coos Bay, Eugene, Medford, Roseburg, and 
Salem) wrote EAs for the timber sales that were associated with the 59 
STFs performed. The EAs addressed a range of environmental impacts for 
the five districts including the types mentioned in the comments. The 
STF business practices and skills of those conducting the action on 
lands similar to the original five Districts are the same. The BLM 
believes there are sufficient data to show that no individually or 
cumulatively significant environmental effects were predicted or 
occurred as a result of the 59 STF surveys, and therefore the BLM is 
confident that no individually or cumulatively significant 
environmental effects will occur due to future STF actions within the 
Districts identified. The Lakeview District Klamath Field Office was 
inadvertently left out of the area of coverage of the proposed CX, but 
has been added to the revised CX proposal. Actions in the Klamath Field 
Office are the same as those taken in the five Districts identified 
above and result in the same non-significant environmental effects. In 
addition, proposed actions in the Klamath Field Office will also be 
subject to the ``extraordinary circumstances'' test, and are expected 
to have no significant environmental effects.
    Comment: Some comments state that the BLM does not disclose that 
``it is in the process of implementing several internal and 
administrative regulatory changes that, in addition to the proposed 
small timber harvest [CXs (11.9C(7)-(9)], will have a cumulative effect 
on the environment that has not been analyzed as required by law.'' The 
``internal and administrative regulatory changes'' the comments refer 
to are the NWFP, the National Forest Management Act Planning 
regulations and the National Forest Management Act.
    Response: The BLM disagrees with the comments, and believes that it 
is following CEQ guidelines by notifying the public on proposed changes 
to the 516 DM 11 (See 71 FR 4159-4167, January 25, 2006; see also 
http://www.blm.gov/planning/news.html). The new forestry CXs are 
specific to the DOI's 516 DM 11 for implementing NEPA within the BLM. A 
cumulative impacts evaluation in relation to the referenced ``changes'' 
is not appropriate, since there is no effect on the environment by this 
administrative change. The proposed CXs are part of the BLM's effort to 
update internal NEPA implementing procedures. The establishment of CXs, 
as internal agency procedures for implementing the NEPA, has been held 
not to require the preparation of an EA or an EIS, under the CEQ 
regulations, see Heartwood,

[[Page 45514]]

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

[[Page 45515]]

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

    C(6)--Comments.
    Comment: Some comments ask the BLM to provide a ``sufficient 
explanation'' for why the proposed Sample Tree Felling (STF) CX 
11.9C(6) is limited to certain areas within Oregon. Some comments 
suggest that the STF CX 11.9C(6) be expanded to all of Oregon, other 
Western States, or BLM-wide.
    Response: While the STF survey method has been used elsewhere, the 
BLM reviewed NEPA analysis specifically to consider the environmental 
effects of the STF timber volume survey method within the western 
Oregon lands managed under the Oregon and California Lands Act (Pub. L. 
75-405, August 28, 1937, as

[[Page 45516]]

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

[[Page 45517]]

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

    C(7)--Comments
    Comment: Some comments state that the 70-acre size threshold is 
excessively large for a ``small'' timber sale. They state that a 10-
acre limit would be more appropriate based on ``interim policy'' issued 
in the 52 FR 30935, August 10, 1987, and reissued in the 53 FR 29505, 
August 5, 1988, and again revised in the 57 FR 43180, September 18, 
1992.
    Response: The BLM disagrees. The FS updated its ``interim 
policies'' to set the 70-acre limit based on a relatively recent 
analysis of relevant data (68 FR 44598--44608, July 29, 2003). The BLM 
reviewed the FS changes in acreages over the 15-year period from 1987 
to 2003, which resulted in a different position from past interim 
policies, and concluded that the data supported a FS size limit change 
from 10 acres in 1987 to 70 acres in 2003. The BLM determined that the 
70-acre limit is appropriate to meet the BLM's needs, based on its 
review and comparability

[[Page 45518]]

analysis of the FS data, which was found to have no individually or 
cumulatively significant environmental effects. Using a 70-acre limit 
for both the BLM and the FS will help maintain consistency between the 
agencies when applying CXs. The BLM concluded from this review that 
there would be no significant effect, individually or cumulatively, 
from the 70-acre size limit for these actions on public lands.
    Comment: Some comments support the ``even-aged regeneration'' 
limitation, while others ask that it be stricken from the 70-acre live 
tree harvest CX 11.9C(7) language.
    Response: The BLM is not changing the even-aged regeneration 
harvest limitation. Even-aged regeneration harvests involve a different 
scope of environmental effects, which exceed the supporting data for 
the live tree harvesting CX. Uneven-aged harvest systems (individual 
tree selection and group selection) maintain the canopy of a forest 
stand; and therefore, have relatively little effect on the structural 
and aesthetic properties of stands. Even-aged regeneration harvests, 
such as clearcutting, seed tree, and shelterwoods, were excluded from 
use in CX 11.9C(7). The limitation was derived from the FS data that 
showed the action described in the CX to have no individually or 
cumulatively significant environmental effects, and which the BLM 
review and analysis concluded would cause no significant effects on the 
BLM lands. In addition, the BLM will apply the ``extraordinary 
circumstances'' test to individual actions covered by the CXs.
    Comment: Some comments ask the BLM to be more ``inclusive of a 
greater range of possible live-tree cutting activities, whether to 
accomplish fuel reduction, forest health, wildlife, pre-commercial 
thinning, or commercial timber sale objectives.''
    Response: The CX 11.9C(7) language includes several examples of 
when it may be employed correctly; however, this is not an exhaustive 
list of potentially suitable applications. The live tree harvest CX 
focuses on small timber harvests of 70 acres or less regardless of the 
reasons for the harvest and specifically states the examples ``may 
include'' and ``but are not limited to'' those examples given in the 
CX. Therefore, the activities listed above could be covered by this CX 
if they meet all the CX qualifying criteria and none of the 
``extraordinary circumstances'' as defined in 516 DM 2.3A(3) and 
appendix 2, apply.

    C(8)--Comments.
    Comment: Some comments ask the BLM to define ``dying tree'' because 
``most mature trees are in some state of decadence.''
    Response: In the context of proposed CX 11.9C(8), a dying tree is a 
standing tree that has been severely damaged by forces such as fire, 
wind, ice, insects, or disease, and that in the judgment of an 
experienced forest professional or someone technically trained for the 
work, is likely to die within a few years.
    Comment: Some comments reference scientific findings that salvage 
tree harvesting will increase soil erosion and sedimentation through 
multiple mechanisms. Other comments ask the BLM to consider the 
scientific evidence that salvage tree harvesting is harmful to the 
environment and increases wildfire risk.
    Response: The BLM reviewed the FS data and practices, and 
determined that none of the sampled FS projects resulted in 
individually or cumulatively significant environmental effects. This 
indicates that agency practices and guidelines are effective at 
mitigating environmental impacts, including soil erosion, 
sedimentation, and fire risk. The BLM's salvage tree harvesting 
practices, guidelines and project effects are similar to the FS (http://www.blm.gov/planning/handouts/CX_Report-Forestry-FS_CXs.pdf). 
Therefore, the BLM concludes that by implementing similar salvage tree 
harvesting practices and guidelines, the BLM's salvage tree harvesting 
projects that use CX 11.9C(8), will have no significant impacts on 
environmental conditions including soil erosion, sedimentation, or 
increased fire risk. If one or more of the extraordinary circumstances 
listed in 516 DM 2, appendix 2 apply, the Responsible Official cannot 
use the new forestry CXs.
    Comment: Some comments posit that there is sufficient scientific 
evidence available that contradicts the ``finding that no significant 
impacts'' occur when the salvage tree harvesting CX 11.9C(8) criteria 
are used. They reference several scientific publications that support a 
conclusion that salvage tree harvesting is damaging to the human 
environment.
    Response: The BLM concludes that salvage tree harvesting will not 
have significant effects on the environment based on the review of the 
FS data where none of the FS sampled projects showed significant 
environmental impacts. As some scientific publications point out, 
salvage activities can have negative environmental impacts, depending 
on the condition of the site, the harvesting system, time of the year, 
and other factors. However, both the FS and the BLM practices and 
guidelines have been developed with regard to soil and water protection 
on appropriate sites that will lead to no significant effects. This 
indicates that agency practices and guidelines are effective at 
mitigating environmental impacts, including soil erosion, 
sedimentation, and fire risk. When designing salvage projects, the BLM 
uses an extensive array of guidelines and procedures to prevent and 
mitigate negative environmental impacts during these activities. The 
BLM's salvage tree harvesting practices and guidelines are similar to 
the FS (http://www.blm.gov/planning/handouts/CX_Report-Forestry-FS_CXs.pdf). Therefore, the BLM concludes that by implementing salvage 
tree harvesting practices and guidelines similar to those implemented 
by the FS; the BLM's salvage tree harvesting projects that use CX 
11.9C(8), will have no significant impacts on environmental conditions 
including soil erosion, sedimentation, or increased fire risk. The 
Responsible Official must consider the ``extraordinary circumstances'' 
(516 DM 2.3A(3) and appendix 2) before deciding if a proposed action 
qualifies for using the CX. If one or more of the ``extraordinary 
circumstances'' listed in 516 DM 2 appendix 2 apply, the Responsible 
Official cannot use the new forestry CXs.
    Comment: Some comments ask the BLM to provide the scientific 
information necessary to justify an implied assumption that salvage 
tree harvesting has less environmental impacts than other types of tree 
harvesting.
    Response: Implied assumptions have not been used, nor has the BLM 
stated whether salvage tree harvesting has more or less environmental 
impacts than other types of tree harvesting. The purpose of the CX is 
not to compare the environmental effects of different types of tree 
harvesting, but to determine whether a CX for salvage tree harvesting 
is appropriate. The salvage tree harvesting CX 11.9C(8) is proposed 
based on the BLM's review of the FS conclusion that implementing the CX 
criteria will ensure that no individually or cumulatively significant 
impacts on the human environment will occur (68 FR 44598-44608, July 
29, 2003). Where significant effects may occur, the FS concluded that 
their consideration of the FS ``extraordinary circumstances'' (FSH 
1909.15, Ch. 30, Sec. 30.3, para. 2) would not allow the use of the CX. 
The BLM has completed a comparison and finds the FS CX to easily 
compare with the BLM CX; and therefore, will consider using this CX 
only when the CX qualifiers apply in full and when none of the DOI 
``extraordinary circumstances'' apply (516 DM 2.3A(3)

[[Page 45519]]

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

[[Page 45520]]

when specific criteria are met will have no significant effect, 
individually or cumulatively. The harvest activity acreage limits were 
determined by the FS based on review and analysis of the data used to 
establish the CXs (http://www.fs.fed.us/emc/lth/1998_details.pdf). The 
BLM concurs with the conclusions drawn by the FS and concludes that for 
BLM actions, due to similar management practices in similar ecosystems, 
the resulting environmental effects on public lands will be not 
significant, individually or cumulatively. Further, the BLM will review 
each proposed action against the DOI ``extraordinary circumstances'' 
(516 DM 2.3A(3)). If any apply, the CX cannot be used.

Responses to Specific Comments on Section 11.9--Categorical Exclusions

D. Rangeland Management (sub-part (10)-(12))

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

[[Page 45521]]

vegetation management actions are analyzed by an EA or EIS.
    Response: The Responsible Official must determine the level of NEPA 
review required. The potential effect of a proposed action on high 
value wildlife areas such as sage-grouse will be part of that 
determination, which will take place in addition to a review for 
``extraordinary circumstances'' (516 DM 2.3A(3) and appendix 2). The 
Vegetation Management CX, by its own terms, cannot be considered for 
use in designated Wilderness or Wilderness Study Areas.
    Comment: Some comments state that allowing 4,500 acres of public 
lands to be treated by prescribed fire without an EA is irresponsible.
    Response: The HFI data reviewed for the development of this CX 
revealed no unanticipated individually or cumulatively significant 
impacts from prescribed fire as long as the area treated remains at 
4,500 acres or less and none of the ``extraordinary circumstances'' 
(516 DM 2.3A(3) and appendix 2) apply.
    Comment: Some comments suggested that road construction should only 
be carried out following a detailed analysis. Other road construction 
is discussed below.
    Response: The vegetation management CX does not apply to vegetation 
management activities involving new permanent road construction. 
Projects involving new permanent road construction must be documented 
through an EA or an EIS.
    Comment: The BLM should exclude prescribed fire from the proposed 
revision because prescribed fire causes significant environmental 
impacts and safety risks, and could be an excuse for building 
``temporary roads.''
    Response: The BLM's review of the projects considered in the 
establishment of the CX revealed that, in the absence of 
``extraordinary circumstances,'' no significant effects result from 
these treatment actions when the 11.9D(10) CX criteria are met. 
Prescribed fire is an important vegetation management tool that can be 
the least environmentally damaging vegetation treatment option. Use of 
prescribed fire was analyzed in the projects reviewed and the BLM 
concluded that the action, if carried out consistently with the 
specific criteria set, did not result in a significant effect. In 
addition, while temporary roads included in the projects reviewed did 
not cause a significant effect, in response to the comment's request 
for clarification, the BLM has added a definition of temporary road to 
be used with respect to when this CX is considered for use. As an 
additional measure of protection, and to be consistent with the HFI CX, 
the BLM added a limitation to the CX so that no new permanent road can 
be constructed.
    Comment: Some comments want the BLM to define the term 
``contiguous'' both spatially and temporally, ``to prevent abuse and 
cumulative impacts to the area's flora and fauna.''
    Response: The term ``contiguous'' has been eliminated to avoid 
possible misinterpretation. Each proposed action must describe the 
project and the impacted area in its entirety. Projects cannot be 
segmented for purposes of using this CX. The impacted area of the 
proposed action cannot cumulatively exceed the spatial limits 
established in the CX 11.9D(10): 1,000 acres for qualifying vegetation 
management activities, except for prescribed fire, which can affect up 
to 4,500 acres. Based on the spatial and temporal parameters of the 
proposed action, the Responsible Official must determine if any of the 
``extraordinary circumstances'' (516 DM 2.3A(3) and appendix 2) apply. 
If there is the potential for individually or cumulatively significant 
impacts on the area's flora or fauna, CX 11.9D(10) cannot be used.
    Comment: Some comments ask the BLM not to spray ``untested 
chemicals'' under the proposed revisions to CX 11.9D(10).
    Response: The BLM has not proposed that the application of 
``untested chemicals'' be subject to approval for any purpose based on 
use of a CX. The proposed routine Vegetation Management CX specifically 
excludes the application of herbicides or pesticides because the data 
are not available by which to analyze whether such an activity should 
be included in the category of actions described in the CX.

    D(11) & (12)--Comments.
    Comment: Several comments were received related to proposed CX 
11.9D(12) for authorization of non-renewable grazing use. Comments 
included topics such as expanding the CX to cover actions to improve 
land health; questioning the adequacy of the data analyzed to support 
the proposed CX; and requesting that the BLM give ``close scrutiny'' to 
the issuance of non-renewable grazing permits as proposed in the CX.
    Response: Upon review of the analysis supporting the proposed CX 
11.9D(12), and comments received, the BLM has decided not to finalize 
the proposed CX.
    Comment: Some comments suggest that the proposed grazing permit CXs 
directly contradict the BLM's rationale for amendments to grazing 
regulations proposed on December 8, 2003, (See final rule 71 FR 39402, 
July 12, 2006). Comments express concern that ``[t]he combined effect 
of the proposed categorical exclusion[s 11.9D(11)&(12)] and the 
previously-proposed revisions to grazing regulations will be to 
eliminate all opportunities for up front public consultation regarding 
the terms and conditions of grazing permits. The only remaining 
opportunities for public involvement will be the provisions for after-
the-fact protest and appeal under 43 CFR 4160, and even those 
opportunities will be eliminated with respect to temporary, non-
renewable grazing permits.''
    Response: The grazing permit CX 11.9D(11) does not contradict the 
rationale for changing grazing regulations with respect to 
consultation, cooperation, and coordination with the interested public, 
nor does it result in the elimination of all opportunities for up front 
public consultation. As explained in the ROD and in the preamble to the 
final rule, the final rule is intended to achieve an appropriate 
balance between efficient management of public lands, and the need for 
public involvement (See 71 FR 39414; Preamble, id at 39439-39441). The 
same goals are behind the new grazing CX. Moreover, ``interested 
publics'' will continue to have opportunities to participate (``to the 
extent practical'') in public lands grazing management. Those 
opportunities arise, during the development of LUPs and activity plans, 
during the development of reports that lead to a determination 
regarding status of land health, and following the issuance of proposed 
and final decisions (See 71 FR at 39432, 39470, and 39475). During the 
development or revision of a RMP, the BLM may decide what public lands 
will (or will not) be available for livestock grazing, change past LUP 
decisions, or develop guidance for making such decisions. In addition, 
the BLM may use the land use planning process to determine if any 
allotment management plans (AMPs) will be put in place. Either during 
or after the land use planning process, the BLM develops the terms and 
conditions of permits, leases, and AMPs, such as the authorized animal 
unit months (AUMs) and seasons of use. In this tier of decision-making, 
the BLM incorporates a variety of elements of rangeland management into 
a single document. For example, public scoping conducted during the 
revision of an RMP may prompt the BLM to coordinate the timing of land 
health assessments with

[[Page 45522]]

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

[[Page 45523]]

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

[[Page 45524]]

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

[[Page 45525]]

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

[[Page 45526]]

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

[[Page 45527]]

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

[[Page 45528]]

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

[[Page 45529]]

suspended or modified, in whole or in part, to meet the requirements of 
such applicable laws and regulations.'' The BLM refers to permits 
issued in accordance with this law as ``backlog'' permits until they 
are processed as required. Between the beginning of Fiscal Year 1999 
and end of Fiscal Year 2005, almost 15,000 permits and leases had 
expired. The BLM has processed all of these, except for 2610, which are 
in ``backlog'' status. For purposes of this action, when the BLM is 
completing NEPA review and documentation, the Responsible Official will 
consider application of CX 11.9 D(11) for issuance of grazing permits 
when the specific CX criteria are met and none of the DOI 
``extraordinary circumstances'' applies. Consideration of whether or 
not to use the CX will facilitate reduction of the ``backlog.''
    Comment: Some comments state that the ``BLM does not have the 
institutional resources to properly [collect current ecological site 
data, or] manage and employ a monitoring program that can correctly 
assess what is actually occurring.''
    Response: The ``correctness'' of the BLM's assessments is a matter 
that can be questioned on a case-by-case basis under 43 CFR 4130.3-3(b) 
(``To the extent practical, during the preparation of reports that 
evaluate monitoring and other data * * * the authorized officer will 
provide [the interested public] an opportunity to review and offer 
input.'') Development and implementation of a monitoring program is an 
issue that is separate from the establishment of a CX. See responses 
above for responses to questions specifically regarding the 
establishment of CX 11.9D(11). That said, regardless of whether a 
proposed activity is reviewed under an EA, EIS or CX, the BLM monitors 
the effects of the activities to the extent its budget allows. 
Monitoring data is used in land health assessments when it is 
available, but is not required. The BLM's program management and 
associated staffing decisions regarding the monitoring of effects of 
actions taken are subject to the appropriations process.
    Comment: Some comments state that the BLM did not begin site-
specific NEPA for grazing management until the 1990s. They cite the 
IBLA decision in Oregon Natural Resources Council v. BLM, 129 IBLA 269 
(1994) where extending a permit's termination date or changing the name 
of the permit holder constitutes an action requiring notice and 
opportunity to protest. The decision applies to whether or not an 
``interested public'' or ``affected interest'' has the opportunity to 
protest and appeal a decision. The implied concern is that, by adopting 
the CXs 11.9D(11)-(12), the public will be unable to protest or appeal 
administrative decisions made by the BLM.
    Response: The BLM was conducting site-specific NEPA analyses in the 
early 1970s to facilitate informed decisions on the development and 
implementation of grazing AMPs. Implementation of the proposed 
revisions to the NEPA management process will not affect ``interested 
public'' or ``affected interests'' right to protest and appeal BLM 
grazing decisions, including decisions made following the CX review 
process (43 CFR part 4160).
    Comment: The same comments express concern that, if the new grazing 
permit CXs 11.9D(11)-(12) cover administrative actions, such as 
changing the termination date of the permit, site-specific 
environmental analyses will not be conducted for grazing allotments 
that have yet to be given the benefit of a site-specific review.
    Response: The BLM deleted part (b) of CX 11.9D(11) to clarify the 
intent of the CX to require completion of a land health assessment 
before application of a CX to a specific allotment described in the 
permit could be considered. Therefore, the CX 11.9D(11) may only be 
used for administrative changes such as changes of names on grazing 
permits, if the specific criteria for use of the CX 11.9D(11) are met. 
Use of the CX in issuing such permits would be subject to the reviews 
included in the CX limitation involving the completion of land health 
assessments as well as the consideration of whether any ``extraordinary 
circumstances'' apply. The BLM has decided not to finalize CX 
11.9D(12).
    Comment: Some comments state that ``administrative action'' is 
inadequately defined, and therefore, could be construed ``to include 
all BLM actions.''
    Response: This comment refers to proposed CX 11.9D(12), which the 
BLM has decided not to finalize.
    Comment: Some comments state that the BLM is issuing grazing 
permits for less than market value.
    Response: The comment has no bearing on the adoption of CXs.
    Comment: Some comments state that the BLM should revise the CXs to 
be more specific relative to the stipulation relating to livestock 
being ``solely'' responsible for the failure to meet land health 
standards.
    Response: The language for CX 11.9D(11) has been revised to clarify 
the limitation. It now reads, ``Not meeting land health standards due 
to factors that do not include existing livestock grazing.''

Responses to Specific Comments on Section 11.9--Categorical Exclusions

G. Transportation (Sub-Parts G(1)-(4))

    G(1)-(3)--Comments.
    Comment: Some comments state that the modified transportation CXs 
11.9G(1)-(3) make no distinction among motorized, mechanized, and foot/
horse trails, or between authorized and unauthorized roads and trails.
    Response: The comments are correct. These CXs do not address the 
type of use authorized on a road or trail. Trail use is authorized 
through the land use planning process. These CXs address actions, which 
take place following this planning process, and are primarily concerned 
with identification within a transportation plan, routine maintenance 
or temporary closures. Further, the Responsible Official reviews each 
proposed action as to whether any of the ``extraordinary 
circumstances'' in 516 DM 2.3A(3) and appendix 2 apply. If any 
``extraordinary circumstance'' applies, the revised transportation CXs 
11.9G(1)-(3) may not be used.
    Comment: Some comments state that the BLM fails to account for 
important differences between roads and trails.
    Response: The BLM guidance (Washington Office Instruction 
Memorandum No. 2006-173) defines similar routine management and 
maintenance requirements for roads and trails. Engineering, design and 
signing requirements are consistent between roads and trails, and 
should be consistently addressed in the NEPA context. Trails, like 
roads, require maintenance (e.g., erosion control, stabilization, and 
signs) and are periodically closed for safety or resource protection 
purposes. The major difference between roads and trails is their 
spatial footprint and degree of infrastructure design, which is less 
for trails than for roads. With respect to trail location and design, 
as with respect to roads, the BLM considers resource conditions in 
design and placement decisions. The BLM's State Trails and Travel 
Management Leads confirmed that, based upon their past observations and 
professional experience, implementation of past actions covered under 
the existing CX did not result in significant effects, individually or 
cumulatively. In addition, the BLM's Trails and Travel Management Leads 
agreed that based on their experiences, the environmental effects of 
these actions along trails as proposed and finalized in the 
establishment of CXs 11.G(1)-(3) will not result in a significant 
effect, individually or cumulatively. Further, regardless of

[[Page 45530]]

whether the transportation feature is a road or a trail, all proposed 
actions possible under the CXs would be reviewed against the DOI 
``extraordinary circumstances'' (516 DM 2 and appendix 2). If any 
apply, the CXs could not be used; rather, an EA or EIS would be 
prepared.
    Comment: Some comments ask that the BLM not add ``trails'' to the 
existing transportation CXs 11.9G(1)-(3).
    Response: See response above. Further, it is appropriate to 
consider roads and trails together in transportation management and 
maintenance, which are the activities addressed by CXs 11.9G(1)-(3). 
Collectively roads and trails form the travel network in a management 
area. Both roads and trails require signs, markers, culverts, and other 
similar structures covered by CX 11.9G(2). Trails, like roads, 
occasionally need to be closed or barricaded, which is the subject of 
CX 11.9G(3). The addition of trails to CXs 11.9(G)(1)-(3) is consistent 
with the BLM's management practices and comprehensive planning for 
roads and trails-related activities. These management practices and 
planning considerations are guided by regulation (43 CFR 8342.2 
``Designation Procedures''--including ``identification of designated 
areas and trails''), BLM directives and guidelines (BLM Manual 9130 
(June 7, 1985)), BLM Land Use Planning Handbook (H-1601-1), and current 
BLM Sign Manual 9130. Coverage of minor management activities by these 
three CXs will enable more timely day-to-day management responses, 
which directly benefit the environment and/or assist in visitor safety 
and result in no significant impact.
    Comment: Some comments ask that the BLM clarify the meaning of the 
modifier ``existing'' in the transportation CXs 11.9(G)(1) and 
11.9(G)(2).
    Response: The term ``existing'' has been replaced by ``eligible'' 
to clarify that any roads and trails to be addressed by the CXs 
11.9(G)(1) and (2) must meet certain requirements established in the 
land use and transportation planning processes. The requirement 
criteria for defining a road or trail as open are developed as part of 
the land use planning process to meet resource management objectives. 
The word ``existing'' was replaced with the word ``eligible'' to avoid 
confusion with the BLM's OHV designation of ``Limited.''
    Comment: Some comments state that it is inappropriate to treat 
routine installation of signs, markers, culverts, ditches, waterbars, 
gates, or cattleguards as equally benign when analyzing potential 
environmental effects which the BLM has done in proposing the 11.9G(2) 
CX.
    Response: Based upon field experience, implementing the category of 
actions, as defined in the CX, has not resulted in individually or 
cumulatively significant effects for or along roads. The BLM State 
Trail and Travel Management Leads have concluded based upon years of 
professional experience that the addition of ``trails'' to these 
categories will not result in individually or cumulatively significant 
environmental effects. The BLM did not propose changes to the overall 
category of activities covered by the existing CX 11.9G(2) for 
management actions for and along roads, rather it added to the ability 
of the BLM to implement the activities along the smaller linear trail 
features. The BLM is adding trails to the CX to more accurately reflect 
the similarities in the management actions and maintenance requirements 
under these categories for roads and trails and due to their similar 
non-significant environmental effect.
    Comment: Some comments state that by including existing trails, the 
BLM could be permitting approval and signing of illegally created 
motorized trails or providing access or use rights to third parties, 
and the BLM will encourage additional use of unauthorized trails.
    Response: The term ``existing'' has been replaced by ``eligible'' 
to clarify that all roads and trails that can be addressed by the CXs 
must meet certain requirements under the land use and transportation 
planning processes. Decisions regarding the designation of roads and 
trails, determinations of OHV open, closed or limited areas, or 
``formal'' recognition of the roads and trails contained within any 
transportation system are determined through the appropriate land use 
planning or activity planning that is accompanied by a NEPA review 
process (see the BLM Land Use Planning Handbook H-1601-1, appendix C, 
Section D). These decisions are not determined through application of 
the CX.

Responses to Specific Comments on Section 11.9--Categorical Exclusions

H. Recreation Management (Sub-Part H(1))

    H(1)--Comments.
    Comment: Some comments state that the analysis used to justify the 
special recreation permit (Recreation Management ) CX 11.9H(1) is 
flawed because it ``assumes that [the] BLM review process will ensure 
categorical exclusions will not be used where significant consequences 
may ensue, a rationale that the courts have rejected.''
    Response: The comment is not clear about which court has 
``rejected'' the ``rationale'' that CXs ``will not be used where 
significant consequences may ensue.'' The CEQ regulations (40 CFR 
1508.4 and 1507.3) authorize federal agencies to establish and apply 
CXs and specify that CXs will not be applicable when there are 
extraordinary circumstances. The BLM followed CEQ regulations in 
proposing additional CXs to reduce paperwork and delays (40 CFR 1500.4 
and 1500.5) and enable the BLM to concentrate on environmental issues 
that are associated with proposed actions that require further analysis 
in an EA or an EIS. Supporting documentation for the revised Recreation 
Management CX 11.9H(1) was reviewed to determine whether there is 
sufficient evidence based on past NEPA analyses and subsequent review 
of environmental effects to support the finding that the activity 
included in the proposed CX would not cause individually or 
cumulatively significant environmental impacts. The establishment of 
CXs has been upheld in Heartwood, Inc. v. U.S. Forest Service, 73 F. 
Supp. 2d 962, 972-73 (S.D. Ill. 1999), aff'd 230 F.3d 947, 954-55 (7th 
Cir. 2000). The BLM administrative review concluded that special 
recreation permits (SRP) that meet the criteria of the CX, will not 
result in individually or cumulatively significant effects. In 
addition, activities conducted through the CX review process must 
address the ``extraordinary circumstances'' (516 DM 2.3(A) and appendix 
2) and be consistent with all applicable laws and requirements imposed 
for protection of the environment.
    Comment: The same comments state, ``although CEQ regulations 
require that CXs incorporate an `extraordinary circumstances' 
exception, 40 CFR 1508.4, the presence of the exception is not an 
excuse for the authorization of otherwise improper or inadequately 
justified CXs. See Heartwood, Inc. v. United States Forest Service, 73 
F. Supp. 2d 962, 976 (rejecting as ``circular'' the Forest Service's 
argument that exceptional circumstances exception adequately 
compensates for failure to consider cumulative effects of an action 
proposed for categorical exclusion).''
    Response: See previous response relative to the court case cited. 
In addition, the facts in the Heartwood decision are distinguishable 
from those underlying the proposed actions here; therefore, they do not 
apply in this context. The BLM has established the

[[Page 45531]]

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

[[Page 45532]]

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

[[Page 45533]]

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

[[Page 45534]]

dispersed recreational activities impacts; and (c) manages events with 
large staging areas on private lands supporting permitted recreational 
use of public lands.
    Response: (a) The BLM differentiates SRP authorized activities from 
private/individual use (i.e. casual use) based on definitions found in 
43 CFR 2930 and the BLM guidance in the BLM Recreation Permit Handbook 
(H-2930-1, pages 10-12). (b) The BLM does not differentiate between 
dispersed or non-dispersed recreational activity impacts when 
considering a proposed SRP action. The BLM considers whether the 
proposed activity meets the criteria set forth in the CX and if not, a 
different type of NEPA review would be conducted to determine the 
environmental effects of the proposed SRP. In addition, general 
dispersed recreational activity impacts would be analyzed during the 
land use planning process. (c) The BLM SRPs are use authorizations for 
activities on the BLM-administered public lands and related waters. The 
issuing of SRPs for events involving ``staging areas'' on private lands 
are coordinated by the BLM with stipulations requiring the permittee 
collaborate with appropriate private landowners and/or public agencies 
(law enforcement, highway, fish and game, etc., BLM Form 2930-1, 
Special Recreation Application and Permit). If significant impacts, as 
revealed in the course of ``extraordinary circumstances'' review, may 
occur from issuance of an SRP, this CX could not be used.

Responses to Specific Comments on Section 11.9--Categorical Exclusions

I. Emergency Stabilization (sub-part I(1))

    I(1)--Comments.
    Comment: Some comments state that the Emergency Stabilization CX is 
(1) too broad, (2) based on subjective criteria, and (3) includes far 
too many acres of land disturbance.
    Response: (1) The new Emergency Stabilization CX builds on the 
existing DOI CX that addresses post-fire rehabilitation responses to 
wildfires (516 DM 2 appendix 1, section 1.13, Finalized at 68 FR 33814, 
June 2003). Post-fire rehabilitation activities as defined in the DOI 
CX refer to response activities taken within 1 to 3 years following a 
wildfire. For the purposes of this BLM-specific CX, emergency 
stabilization response activities are the same on-the-ground treatments 
as the post-fire rehabilitation treatments but they must occur within 
one year of the natural land disturbance event. The events may include 
destabilizing natural events, such as wildfire, floods, strong weather, 
earthquakes, and landslips. The emergency stabilization response 
activities include management treatments, which are prescribed to 
minimize threats to life or property and to stabilize and prevent 
unacceptable degradation of natural and cultural resources as a result 
of a natural land disturbance event. The emergency stabilization 
responses under this CX are the same as the DOI CX post-fire 
rehabilitation activities and may include: Seeding to prevent erosion 
or the spread of noxious weeds; installation of structures, such as log 
erosion barriers or straw wattles; felling hazard trees along roads or 
in campgrounds; and similar treatments to prevent or minimize negative 
impacts caused by a natural land disturbance event. While the natural 
events responded to by activities covered under this CX may be 
different from a wildland fire, because the response actions taken 
under this CX are generally the same as those taken under the DOI CX 
for post-fire rehabilitation, the BLM has concluded that, similarly, 
they do not result in significant effects, individually or 
cumulatively. The BLM reached this conclusion on the basis both of 
conducting a review of the wildfire data, and based on the professional 
judgment of BLM specialists experienced with these types of events and 
response activities and their effects. Appropriate use of the Emergency 
Stabilization CX 11.9I(1) is warranted on the basis of this review and 
judgment, as well as because such use will be in accord with current 
administrative procedures such as the following: BLM Burned Area 
Emergency Stabilization and Rehabilitation Handbook (H-1742-1); 
specific standards and guidelines expressed in policy documents such as 
Instruction Memorandum 2006-162; and the specific terms and conditions 
identified within local LUPs. Further, the BLM must review all proposed 
emergency stabilization treatment against the DOI's ``extraordinary 
circumstances'' (516 DM 2.3A(3) and appendix 2). The CX cannot be used 
if any of the ``extraordinary circumstances'' apply.
    (2) The category of actions covered by the new Emergency 
Stabilization CX, as well as its specific criteria, were derived from a 
review of approximately 300 post-fire emergency stabilization/
rehabilitation projects analyzed during the establishment of the DOI 
post-fire rehabilitation CX 620 DM Ch 3.3E, June 5, 2003. Information 
on 30 variables was collected and analyzed. These data included 
project-specific information on the location, project size, vegetation 
type, emergency stabilization/rehabilitation treatments performed, the 
type of NEPA review performed, predicted environmental impacts of 
proposed treatments and the actual environmental impacts after 
treatments. The criteria applied were not subjectively derived. In the 
judgment of the BLM professionals experienced in implementing these 
activities, the activities and their effects for which the BLM 
Emergency Stabilization CX is proposed, are of the same nature as the 
activities and their effects analyzed as the basis for establishment of 
the DOI post-fire rehabilitation CX.
    (3) The 4,200-acre limit was derived through analysis of the DOI CX 
data set, which represents a range of environments in which wildfire 
events routinely occur on public lands. This CX adopts the 4,200-acre 
limit to maintain consistency with the DOI CX limitation as the effects 
of the actions taken in response to wildfires. These response actions 
are the same as those taken in response to other natural land 
disturbance events. Based on review of the DOI CX data by professionals 
in the area of post-disturbance stabilization, the BLM concludes that 
this CX will not have individual or cumulative significant impacts when 
all conditions of the CX were met. Further, as an additional safeguard, 
the BLM must review all proposed actions against the DOI 
``extraordinary circumstances'' (516 DM 2.3A(3)). If any of the 
``extraordinary circumstances'' apply, the CX cannot be used.
    Comment: Some comments state that post-emergency treatments ``merit 
thorough analysis regarding potential significant impacts.'' Affected 
areas are ``often extremely vulnerable to further environmental 
damage'' and ``the activities included do not necessarily work 
successfully to mitigate damages from natural events and often cause 
adverse impacts on their own.''
    Response: The DOI post-fire rehabilitation CX data review concluded 
that no significant individual or cumulative impacts are likely to 
occur as a result of the types of stabilizing response activities that 
are taken within 1 to 3 years of the natural disturbance event. The 
BLM's Emergency Stabilization CX includes an additional limitation that 
actions can only be taken within one year following the natural 
disturbance event. In addition, the Emergency Stabilization CX cannot 
be used if one or more of the DOI ``extraordinary circumstance'' (516 
DM 2.3A(3) and appendix 2) applies.
    Comment: Some comments ask that the BLM ``consider alternatives [to 
repair or replacement of roads and

[[Page 45535]]

culverts] that would permit improvement of wildlife habitat or 
watershed condition.''
    Response: The CX 11.9I(1) may be used only for Emergency 
Stabilization treatments when the CX specific criteria are met in full. 
Further, each proposed action must be reviewed against the DOI 
``extraordinary circumstances,'' if any apply, the CX cannot be used. 
Emergency stabilization activities are those treatments that are 
prescribed to minimize threats to life or property and to stabilize and 
prevent unacceptable degradation of natural and cultural resources as a 
result of a natural land disturbance event. The emergency stabilization 
actions must be taken within one year following the disturbance event. 
The emergency stabilization activities may include: seeding to prevent 
erosion or the spread of noxious weeds; installation of structures, 
such as log erosion barriers or weed-free straw wattles and fish 
friendly culverts; felling hazardous trees along roads or in 
campgrounds; and similar treatments to prevent or minimize negative 
impacts caused by certain inevitable natural events. These activities 
are covered under CX 11.9I(1) because they are commonly accepted 
minimum impact responses to the effects of floods, weather events, 
earthquakes, and landslips in addition to wildfires. Improvements to 
natural resource conditions may be a derived or incidental benefit, but 
cannot be a driving purpose for the proposed action for use of this CX.
    Comment: Some comments ask that the BLM clearly define what 
constitutes ``temporary road'' construction to ``minimize * * * 
impacts,'' and to include language in each CX that provides a 
requirement that temporary roads be obliterated when a project is 
completed. Some comments suggested that road construction should only 
be carried out following a detailed analysis.
    Response: The need for temporary roads is determined during the 
project proposal process. The Responsible Official is required to 
review the project proposal against the DOI's extraordinary 
circumstance (516 DM 2.3A(3) and appendix 2). Project proposals include 
descriptions of when vehicle and equipment access is necessary, how it 
will be done, and, if temporary roads are included, how they are to be 
reclaimed. Based on the DOI CX data analyzed for the proposed Emergency 
Stabilization CX (11.9I(1)), there are no individual or cumulatively 
significant environmental effects when temporary roads are part of 
activities identified in the CX. The BLM added a definition to the CX 
language to clarify what a temporary road is for use under this CX. 
Further, if one or more of the ``extraordinary circumstances'' apply 
the CX cannot be used.
    Comment: Some comments recommend that culvert repair and 
replacement not be included in the list of exempted treatments and that 
the CX language be changed to limit treatments to ``less invasive 
treatments'' that can only be applied when the affected area is 
verifiably destabilized.
    Response: Repair and replacement of existing culverts damaged or 
lost due to a natural disaster is necessary to prevent excessive soil 
erosion and damage to resources and property in unstable environments. 
According to the DOI CX data analyzed, no unanticipated individual or 
cumulatively significant impacts occur when culverts are repaired or 
replaced in accordance with the criteria established in the new 
Emergency Stabilization CX 11.9I(1). The activities and the effects of 
those activities covered under this Emergency Stabilization CX are the 
same as the DOI CX and will result in no individually or cumulatively 
significant impacts.
    Comment: Some comments recommend that the Emergency Stabilization 
CX 11.9I(1) be expanded to include ``minor herbicide applications.''
    Response: The data analyzed in the development of the Emergency 
Stabilization CX 11.9I(1) excluded the use of herbicides as a variable 
in the analysis. Therefore, the CX 11.9I(1) explicitly precludes its 
use with respect to the application of herbicides.

Responses to Specific Comments on Section 11.9--Categorical Exclusions

J. Other (sub-part J(12))

    J(12)--Comments.
    Comment: Some comments ask why the existing CX 11.9H(12) is being 
deleted.
    Response: The proposed 516 DM 11 mistakenly left the existing 
11.9H(12) out of the Federal Register (71 FR 4159-4167, January 25, 
2006). This existing CX is added back into the text of this Federal 
Register notice with no changes to its language, however the citation 
number is changed to J(12) for continued inclusion in the ``Other'' 
Category. The language reads, ``Rendering formal classification of 
lands as to their mineral character and waterpower and water storage 
values.''

Procedural Requirements

    The following list of procedural requirements has been assembled 
and addressed to contribute to this open review process. Today's 
publication is a notice of an internal Departmental action and not a 
rulemaking. However, we have addressed the various procedural 
requirements that are generally applicable to proposed and final 
rulemaking to show how they would affect this notice if it were a 
rulemaking.

Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), it has 
been determined that this action is the implementation of policy and 
procedures applicable only to the DOI and not a significant regulatory 
action. These policies and procedures would not impose a compliance 
burden on the general economy.

Administrative Procedure Act

    This document is not subject to prior notice and opportunity to 
comment because it is a general statement of policy and procedure (5 
U.S.C. 553(b)(A)). However, notice and opportunity to comment is 
required by the CEQ regulations (40 CFR 1507.3(a)).

Regulatory Flexibility Act

    This document is not subject to notice and comment under the 
Administrative Procedure Act, and, therefore, is not subject to the 
analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 
et seq.). This document provides the DOI with policy and procedures 
under NEPA and does not compel any other party to conduct any action.

Small Business Regulatory Enforcement Fairness Act

    These policies and procedures do not comprise a major rule under 5 
U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. 
The document will not have an annual effect on the economy of $100 
million or more and is expected to have no significant economic 
impacts. Further, it will not cause a major increase in costs or prices 
for consumers, individual industries, Federal, State, or local 
government agencies, or geographic regions and will (Page 52596) impose 
no additional regulatory restraints in addition to those already in 
operation. Finally, the document does not have significant adverse 
effects on competition, employment, investment, productivity, 
innovation, or the ability of United States-based enterprises to 
compete with foreign-based enterprises.

Unfunded Mandates Reform Act

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), this document will not significantly or uniquely affect small 
governments. A Small Government

[[Page 45536]]

Agency Plan is not required. The document does not require any 
additional management responsibilities. Further, this document will not 
produce a federal mandate of $100 million or greater in any year, that 
is, it is not a significant regulatory action under the Unfunded 
Mandates Reform Act. These policies and procedures are not expected to 
have significant economic impacts nor will they impose any unfunded 
mandates on other Federal, State, or local government agencies to carry 
out specific activities.

Federalism

    In accordance with Executive Order 13132, this document does not 
have significant federalism effects; therefore, a federalism assessment 
is not required. The policies and procedures will not have substantial 
direct effects on the states, on the relationship between the Federal 
government and the states, or on the distribution of power and 
responsibilities among the various levels of government. No intrusion 
on state policy or administration is expected, roles or 
responsibilities of federal or state governments will not change, and 
fiscal capacity will not be substantially, directly affected. 
Therefore, the document does not have significant effects on or 
implications for federalism.

Paperwork Reduction Act

    This document does not require information collection, as defined 
under the Paperwork Reduction Act. Therefore, this document does not 
constitute a new information collection system requiring Office of 
Management and Budget approval under the Paperwork Reduction Act (44 
U.S.C. 3501 et seq.).

National Environmental Policy Act

    The CEQ does not direct agencies to prepare a NEPA analysis or 
document before establishing agency procedures that supplement the CEQ 
regulations for implementing NEPA. Agency NEPA procedures are 
procedural guidance to assist agencies in the fulfillment of agency 
responsibilities under NEPA, but are not the agency's final 
determination of what level of NEPA analysis is required for a 
particular proposed action. The requirements for establishing agency 
NEPA procedures are set forth at 40 CFR 1505.1 and 1507.3. The 
determination that establishing NEPA procedures does not require NEPA 
analysis and documentation has been upheld in Heartwood, Inc. v. U.S. 
Forest Service, 73 F. Supp. 2d 962, 972-73 (S.D. Ill. 1999), aff'd 230 
F.3d 947, 954-55 (7th Cir. 2000).

Essential Fish Habitat

    We have analyzed this document in accordance with Section 305(b) of 
the Magnuson-Stevens Fishery Conservation and Management Act and 
determined that issuance of this document will not affect the essential 
fish habitat of federally-managed species; therefore, an essential fish 
habitat consultation on this document is not required.

Consultation and Coordination With Indian Tribal Governments

    In accordance with Executive Order 13175 of November 6, 2000, and 
512 DM Ch 2, we have assessed this document's impact on tribal trust 
resources and have determined that it does not directly affect tribal 
resources since it describes the DOI's procedures for its compliance 
with NEPA.

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

    Executive Order 13211 of May 18, 2001, requires a Statement of 
Energy Effects for significant energy actions. Significant energy 
actions are actions normally published in the Federal Register that 
lead to the promulgation of a final rule or regulation and may have any 
adverse effects on energy supply, distribution, or use. We have 
explained above that this document is an internal DM part, which only 
affects how the DOI conducts its business under the NEPA. Revising this 
manual part does not constitute rulemaking; therefore, it is not 
subject to Executive Order 13211.

Actions to Expedite Energy-Related Projects

    Executive Order 13212 of May 18, 2001, requires agencies to 
expedite energy-related projects by streamlining internal processes 
while maintaining safety, public health, and environmental protections. 
Today's publication is in conformance with this requirement as it 
promotes existing process streamlining requirements and revises the 
text to emphasize this concept (see Chapter 4, subpart 4.16).

Government Actions and Interference With Constitutionally Protected 
Property Rights

    In accordance with Executive Order 12630 (March 15, 1988), and Part 
318 of the DM, the DOI has reviewed today's notice to determine whether 
it would interfere with constitutionally protected property rights. As 
internal instructions to bureaus on the implementation of the NEPA, 
this publication will not cause such interference.

    Authority: The NEPA, the National Environmental Quality 
Improvement Act of 1970, as amended (42 U.S.C. 4371 et seq.); 
Executive Order 11514, March 5, 1970, as amended by Executive Order 
11991, May 24, 1977; and CEQ regulations 40 CFR 1507.3.

Willie R. Taylor,
Director, Office of Environmental Policy and Compliance.
    An electronic copy may be obtained from the Department of the 
Interior Web site http://elips.doi.gov.

Department of the Interior

Departmental Manual

-----------------------------------------------------------------------

Effective Date: --------------------
Series: Environmental Quality.
Part 516: National Environmental Policy Act of 1969.
Chapter 11: Managing the NEPA Process--Bureau of Land Management.
Originating Office: Office of Environmental Policy and Compliance.
-----------------------------------------------------------------------

516 DM 11

11.1 Purpose

    This chapter provides supplementary requirements for implementing 
provisions of 516 DM Chapters 1 through 6 for the Department of the 
Interior's Bureau of Land Management (BLM). The BLM's National 
Environmental Policy Act (NEPA) Handbook (H-1790-1) provides additional 
guidance.

11.2 NEPA Responsibilities

    A. The Director and Deputy Director(s) are responsible for the BLM 
NEPA compliance activities.
    B. The Assistant Director, Renewable Resources and Planning, is 
responsible for national NEPA compliance leadership and coordination, 
program direction, policy, and protocols development, and 
implementation of the same at the line management level. The Division 
of Planning and Science Policy, within the Assistant Directorate, 
Renewable Resources and Planning, has the BLM lead for the NEPA 
compliance program direction and oversight.
    C. The BLM Office Directors and other Assistant Directors are 
responsible for cooperating with the Assistant Director, Renewable 
Resources and Planning, to ensure that the BLM NEPA compliance 
procedures operate as prescribed within their areas of responsibility.
    D. The BLM Center Directors are responsible for cooperating with 
the

[[Page 45537]]

Assistant Director, Renewable Resources and Planning, to ensure that 
the BLM NEPA compliance procedures operate as prescribed within their 
areas of responsibility.
    E. The State Directors are responsible to the Director/Deputy 
Director(s) for overall direction, integration and implementation of 
the BLM NEPA compliance procedures in their states. This includes 
managing for the appropriate level of public notification and 
participation, and ensuring production of quality environmental review 
and decision documents. Deputy State Directors serve as focal points 
for NEPA compliance matters at the state level.
    F. The District and Field Managers are responsible for NEPA 
compliance at the local level.

11.3 External Applicants' Guidance

A. General
    (1) For all external proposals, applicants should make initial 
contact with the Responsible Official (District Manager, Field Manager, 
or State Director) responsible for the affected public lands as soon as 
possible after determining the BLM's involvement. This early contact is 
necessary to allow the BLM to consult early with appropriate state and 
local agencies and tribes and with interested private persons and 
organizations, and to commence its NEPA process at the earliest 
possible time.
    (2) When a proposed action has the potential to affect public lands 
in more than one administrative unit, the applicant may initially 
contact any Responsible Official whose jurisdiction is involved. The 
BLM may then designate a lead office to coordinate between BLM 
jurisdictions.
    (3) Potential applicants may secure from the Responsible Official a 
list of NEPA and other relevant regulations and requirements for 
environmental review related to each applicant's proposed action. The 
purpose of making these regulations and requirements known in advance 
is to assist the applicant in the development of an adequate and 
accurate description of the proposed action when the applicant submits 
their project application. The list provided to the applicant may not 
fully disclose all relevant regulations and requirements because 
additional requirements could be identified after review of the 
applicant's proposal document(s) and as a result of the ``scoping'' 
process.
    (4) The applicant is encouraged to advise the BLM of their 
intentions early on in their planning process. Early communication is 
necessary so that the BLM can efficiently advise the applicant on the 
anticipated type of NEPA review required, information needed, and 
potential data gaps that may or may not need to be filled, so that the 
BLM can describe the relevant regulations and requirements likely to 
affect the proposed action(s), and to discuss scheduling expectations.
    B. Regulations: The following list of potentially relevant 
regulations should be considered at a minimum. Many other regulations 
affect public lands--some of which are specific to the BLM, while 
others are applicable across a broad range of federal programs (e.g., 
Protection of Historic and Cultural Programs--36 Code of Federal 
Regulations (CFR) Part 800).
    (1) Resource Management Planning--43 CFR 1610;
    (2) Withdrawals--43 CFR 2300;
    (3) Land Classification--43 CFR 2400;
    (4) Disposition: Occupancy and Use--43 CFR 2500;
    (5) Disposition: Grants--43 CFR 2600;
    (6) Disposition: Sales--43 CFR 2700;
    (7) Use: Rights-of-Way--43 CFR 2800;
    (8) Use: Leases and Permits--43 CFR 2900;
    (9) Oil and Gas Leasing--43 CFR 3100;
    (10) Geothermal Resources Leasing--43 CFR 3200;
    (11) Coal Management--43 CFR 3400;
    (12) Leasing of Solid Minerals Other than Coal/Oil Shale--43 CFR 
3500;
    (13) Mineral Materials Disposal--43 CFR 3600;
    (14) Mining Claims Under the General Mining Laws--43 CFR 3800;
    (15) Grazing Administration--43 CFR 4100;
    (16) Wild Free-Roaming Horse and Burro Management--43 CFR 4700;
    (17) Forest Management--43 CFR 5000;
    (18) Wildlife Management--43 CFR 6000;
    (19) Recreation Management--43 CFR 8300; and
    (20) Wilderness Management--43 CFR 6300.

11.4 General Requirements

    The Council on Environmental Quality (CEQ) regulations state that 
federal agencies shall reduce paperwork and delay (40 CFR 1500.4 and 
1500.5) to the fullest extent possible. The information used in any 
NEPA analysis must be of high quality. Accurate scientific analysis, 
agency expert comments, and public scrutiny are essential to 
implementing the NEPA (40 CFR 1500.1(b)). Environmental documents 
should be concise and written in plain language (40 CFR 1502.8), so 
they can be understood and should concentrate on the issues that are 
truly significant to the action in question rather than amassing 
needless detail (40 CFR 1500.1(b)).
    A. Reduce paperwork and delays: The Responsible Official will avoid 
unnecessary duplication of effort and promote cooperation with other 
federal agencies that have permitting, funding, approving, or other 
consulting or coordinating requirements associated with the proposed 
action. The Responsible Official shall, as appropriate, integrate NEPA 
requirements with other environmental review and consultation 
requirements (40 CFR 1500.4(k)); tier to broader environmental review 
documents (40 CFR 1502.20); incorporate by reference relevant studies 
and analyses (40 CFR 1502.21); adopt other agency environmental 
analyses (40 CFR 1506.3); and supplement analyses with new information 
(40 CFR 1502.9).
    B. Eliminate duplicate tribal, state, and local governmental 
procedures (40 CFR 1506.2): The Responsible Official will cooperate 
with other governmental entities to the fullest extent possible to 
reduce duplication between federal, state, local and tribal 
requirements in addition to, but not in conflict with, those in the 
NEPA. Cooperation may include the following: common databases; joint 
planning processes; joint science investigations; joint public meetings 
and hearings; and joint environmental assessment (EA) level and joint 
environmental impact statement (EIS) level analyses using joint lead or 
cooperating agency status.
    C. Consult and coordinate: The Responsible Official will determine 
early in the process the appropriate type and level of consultation and 
coordination required with other federal agencies and with state, local 
and tribal governments. After the NEPA review is completed, 
coordination will often continue throughout project implementation, 
monitoring, and evaluation.
    D. Involve the public: The public must be involved early and 
continuously, as appropriate, throughout the NEPA process. The 
Responsible Official shall ensure that:
    (1) The type and level of public involvement shall be commensurate 
with the NEPA analysis needed to make the decision.
    (2) When feasible, communities can be involved through consensus-
based management activities. Consensus-based management includes direct 
community involvement in the BLM activities subject to NEPA analyses, 
from initial scoping to implementation and

[[Page 45538]]

monitoring of the impacts of the decision. Consensus-based management 
seeks to achieve agreement from diverse interests on the goals, 
purposes, and needs of the BLM plans and activities and the methods 
needed to achieve those ends. The BLM retains exclusive decision-making 
responsibility and shall exercise that responsibility in a timely 
manner.
    E. Implement Adaptive Management: The Responsible Official is 
encouraged to build ``Adaptive Management'' practice in to their 
proposed actions and NEPA compliance activities and train personnel in 
this important environmental concept.
    Adaptive Management in the DOI is a system of management practices 
based on clearly identified outcomes, monitoring to determine if 
management actions are meeting outcomes, and the facilitation of 
management changes to ensure that outcomes are met, or reevaluated as 
necessary. Such reevaluation may require new or supplemental NEPA 
compliance. Adaptive Management recognizes that knowledge about natural 
resource systems is sometimes uncertain and is the preferred method for 
addressing these cases. The preferred alternative should include 
sufficient flexibility to allow for adjustments in implementation in 
response to monitoring results.
    F. Train for public and community involvement: The BLM employee(s) 
that facilitate(s) public and community involvement in the NEPA process 
should have training in public involvement, alternative dispute 
resolution, negotiation, meeting facilitation, collaboration, and/or 
partnering.
    G. Limitations on Actions during the NEPA process: The following 
guidance may aid in fulfilling the requirements of 40 CFR 1506.1. 
During the preparation of a program or plan NEPA document, the 
Responsible Official may undertake any major Federal action within the 
scope and analyzed in the existing NEPA document supporting the current 
plan or program, so long as there is adequate NEPA documentation to 
support the individual action.

11.5 Plan Conformance

    Where a BLM land use plan (LUP) exists, a proposed action must be 
in conformance with the plan. This means that the proposed action must 
be specifically provided for in the plan, or if not specifically 
mentioned, the proposal must be clearly consistent with the terms, 
conditions, and decisions of the plan or plan as amended. If it is 
determined that the proposed action does not conform to the plan, the 
Responsible Official may:
    (A) Reject the proposal,
    (B) Modify the proposal to conform to the land use plan, or
    (C) Complete appropriate plan amendments and associated NEPA 
compliance requirements prior to proceeding with the proposed action.

11.6 Existing Documentation (Determination of NEPA Adequacy)

    The Responsible Official may consider using existing NEPA analysis 
for a proposed action when the record documents show that the following 
conditions are met.
    (A) The proposed action is adequately covered by (i.e., is within 
the scope of and analyzed in) relevant existing analyses, data, and 
records; and
    (B) There are no new circumstances, new information, or 
unanticipated or unanalyzed environmental impacts that warrant new or 
supplemental analysis.
    If the Responsible Official determines that existing NEPA documents 
adequately analyzed the effects of the proposed action, this 
determination, usually prepared in a Determination of NEPA Adequacy 
(DNA) worksheet to provide the administrative record support, serves as 
an interim step in the BLM's internal decision-making process. The DNA 
is intended to evaluate the coverage of existing documents and the 
significance of new information, but does not itself provide NEPA 
analysis. If the Responsible Official concludes that the proposed 
action(s) warrant additional review, information from the DNA worksheet 
may be used to facilitate the preparation of the appropriate level of 
NEPA analysis.
    The BLM's NEPA Handbook and program specific regulations and 
guidance describe additional steps needed to make and document the 
agency's final determination regarding a proposed action.

11.7 Actions Requiring an Environmental Assessment (EA)

    A. An EA is a concise public document that serves to:
    (1) Provide sufficient evidence and analysis for determining 
whether to prepare an environmental impact statement (EIS) or a Finding 
of No Significant Impact (FONSI);
    (2) Aid the BLM's compliance with NEPA when an EIS is not 
necessary; and
    (3) Facilitate preparation of an EIS when one is necessary.
    B. Unlike an EIS that requires much more, an EA must include the 
following four items identified in 40 CFR 1508.9(b):
    (1) The need for the proposal.
    (2) Alternatives as described in Section 102(2)(E) of NEPA.
    (3) The environmental impacts of the proposed action and 
alternatives.
    (4) A listing of agencies and persons consulted.
    C. An EA is usually the appropriate NEPA document for:
    (1) Land Use Plan Amendments;
    (2) Land use plan implementation decisions, including but not 
limited to analysis for implementation plans such as watershed plans or 
coordinated resource activity plans, resource use permits (except for 
those that are categorically excludable), and site-specific project 
plans, such as construction of a trail.
    D. An EA should be completed when the Responsible Official is 
uncertain of the potential for significant impacts and needs further 
analysis to make the determination.
    E. If, for any of these actions, it is anticipated or determined 
that an EA is not appropriate because of potential significant impacts, 
an EIS will be prepared.

11.8 Major Actions Requiring an EIS

    A. An EIS level analysis should be completed when an action meets 
either of the two following criteria.
    (1) If the impacts of a proposed action are expected to be 
significant; or
    (2) In circumstances where a proposed action is directly related to 
another action(s), and cumulatively the effects of the actions taken 
together would be significant, even if the effects of the actions taken 
separately would not be significant,
    B. The following types of BLM actions will normally require the 
preparation of an EIS:
    (1) Approval of Resource Management Plans.
    (2) Proposals for Wild and Scenic Rivers and National Scenic and 
Historic Trails.
    (3) Approval of regional coal lease sales in a coal production 
region.
    (4) Decisions to issue a coal preference right lease.
    (5) Approval of applications to the BLM for major actions in the 
following categories:
    (a) Sites for steam-electric powerplants, petroleum refineries, 
synfuel plants, and industrial facilities; and
    (b) Rights-of-way for major reservoirs, canals, pipelines, 
transmission lines, highways, and railroads.
    (6) Approval of operations that would result in liberation of 
radioactive tracer materials or nuclear stimulation.
    (7) Approval of any mining operations where the area to be mined, 
including

[[Page 45539]]

any area of disturbance, over the life of the mining plan, is 640 acres 
or larger in size.
    C. If potentially significant impacts are not anticipated for these 
actions, an EA will be prepared.

11.9 Actions Eligible for a Categorical Exclusion (CX)

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

[[Page 45540]]

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

[[Page 45541]]

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

[[Page 45542]]

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

[FR Doc. E7-15746 Filed 8-13-07; 8:45 am]
BILLING CODE 4310-84-P