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, 45504-45542 [E7-15746]

Agencies

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

[Federal Register Volume 72, Number 156 (Tuesday, August 14, 2007)]
[Notices]
[Pages 45504-45542]
From the Federal Register Online via the Government Printing 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) https://
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 https://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 https://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 https://elips.doi.gov. The DOI's ESMs can be accessed through the 
DOI's Web site at https://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 (https://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 https://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 https://
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 https://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,