Implementing Amended Section 402(h) (2) of the Federal Land Policy and Management Act - Using a Categorical Exclusion for Trailing Livestock on Public Land
UNITED STATES DEPARTMENT OF THE INTERIORBUREAU OF LAND MANAGEMENTWASHINGTON, D.C. 20240http://www.blm.govJuly 15, 2015In Reply Refer To: 4110 (220) PEMS TRANSMISSION 07/15/2015Instruction Memorandum No. 2015-120Expires: 09/30/2018To: All Field Office OfficialsFrom: Assistant Director, Resources and PlanningSubject: Implementing Amended Section 402(h) (2) of the Federal Land Policy and Management Act - Using a Categorical Exclusion for Trailing Livestock on Public LandProgram Area: Rangeland Management (1020)Purpose: Section 3023 in Public Law (PL) 113-291, National Defense Authorization Act (NDAA) 2015, amends Section 402 of the Federal Land Policy and Management Act of 1976 (FLPMA) by including six new provisions and one modified provision related to livestock grazing. This Instruction Memorandum (IM) provides direction for analyzing effects of livestock trailing and issuing crossing permits in accordance with this amendment to FLPMA, the new Section 402(h)(2), pending incorporation into Handbook H-4130-1, Authorizing Grazing Use. Policy/Action: The Authorized Officer (AO) may apply a categorical exclusion (CX) to issue a crossing permit. A decision document must be prepared for the action. For general guidance on the use of a CX, please refer to the Departmental regulations at 43 CFR §§ 46.205 through 46.215, the BLM National Environmental Policy Act (NEPA) Handbook (H-1790-1), and the Departmental Manual at 516 DM 11. The application of this CX does not reduce or eliminate regulatory requirements or other program-specific policies, including the obligation to issue a decision that would provide opportunities for interested parties or the public to protest and/or appeal the decision except during the remainder of FY 2015 as explained below.The decision to use the CX or prepare a NEPA analysis will depend on the resources affected, by the kind of livestock that will be trailed across public lands, the type and magnitude of the anticipated effects of the trailing use, as well as any resource issues present on the trailing route. For example, application of the CX may not be appropriate if use of public land for trailing is more than incidental, sensitive resources are affected, or the effects of trailing are extensive. Review the 12 extraordinary circumstances from Departmental Manual 516 to help determine whether use of a CX is appropriate. The degree of detail and analysis needed is left up to the judgment of the AO. For Fiscal Year (FY) 2015 only, in accordance with Public Law 113-76 the Consolidated Appropriations Act, 2014, when a decision is issued to authorize a crossing permit, the AO should replace the traditional administrative appeal rights language, which is included in the final decision, with a statement informing the affected permittee/lessee or the interested public that the decision is not subject to protest and/or administrative appeal under 43 CFR § 4160. Suggested language for this revised notice is:“Pursuant to Section 125 of Division G, Title I. General Provisions, PL 113-76, the Consolidated Appropriations Act, 2014, this BLM final decision is not subject to protest and/or administrative appeal under subpart E of Part 4 of Title 43, Code of Federal Regulations and subpart 4160 of part 4100 of such title.”Public Law 113-76 removes the application of the protest and administrative appeal process of 43 CFR Subpart 4160 from the issuance of crossing permits until the end of FY 2015, but does not eliminate the requirement to notify affected permittees and the interested public of the issuance of a crossing permit. The field office (FO) should consult with the BLM State Office Rangeland Management Program Leads if there are questions regarding crossing permit applications.Beginning October 1, 2015, crossing permit decisions will be issued in accordance with 43 CFR § 4160 and include standard protest and administrative appeal language.This amendment to FLPMA does not alter the AO’s responsibilities under the Endangered Species Act of 1973 (16 U.S.C. §§ 1531 et seq.), the National Historic Preservation Act of 1966 (16 U.S.C. §§ 470 et seq.) or any other applicable statutes.Background: Section 3023 “Grazing Permits and Leases” of Public Law (PL) 113-291, The Carl Levin and Howard P. `Buck' McKeon National Defense Authorization Act for Fiscal Year 2015, amended Section 402 of FLPMA by modifying one provision and adding six new provisions. One of the new provisions of FLPMA is Sec. 402(h)(2) “TRAILING AND CROSSING.—The trailing and crossing of livestock across public land and National Forest System land and the implementation of trailing and crossing practices by the Secretary concerned may be categorically excluded from the requirement to prepare an environmental assessment or an environmental impact statement under the NEPA of 1969 (42 U.S.C. 4321 et seq.).” This IM provides direction for the Trailing and Crossing provision. Timeframe: This policy is effective immediately.Budget Impact: Use of the CX can reduce the time needed to process an application to trail livestock on public land and can expedite the process for incidental trailing use. Actual budget impact is likely to be small for any individual office, but frees-up time for processing grazing permits.Manual/Handbook Sections Affected: Handbook H-4130-1, rel. 4-75, 7-31-84, Authorizing Grazing Use, and the National Environmental Policy Handbook H-1790-1 rel. 1-1710 are amended by this IM.Coordination: This IM was prepared in coordination with the Solicitor’s Office and the Deputy State Directors of all state offices except Alaska and Eastern States.Contact(s): Richard Mayberry, Rangeland Management Specialist, Division of Forest, Rangeland, Riparian, and Plant Conservation, at (202) 912-7229.Signed by: Authenticated by:Michael H. Tupper Robert M. WilliamsActing, Assistant Director Division of IRM Governance,WO-860Resources and Planning