US Government Accountability Office
GAO’s analysis of BLM field office data showed that section 390 categorical exclusions were used to approve almost 6,900 oil-and-gas-related activities from fiscal year 2006 through fiscal year 2008. Nearly 6,100 of these categorical exclusions were used for drilling permits and the rest for other nondrilling activities. Most BLM officials GAO spoke with said that section 390 categorical exclusions increased the efficiency of certain field office operations, but it was not possible to quantify these benefits. GAO reported that BLM’s use of section 390 categorical exclusions through fiscal year 2008 often did not comply with either the law or BLM’s guidance..
GAO suggested that Congress may want to consider amending the act to clarify section 390, and GAO recommended that BLM clarify its guidance, standardize decision documents, and ensure compliance through more oversight. The Department of the Interior concurred with GAO’s recommendations. In May 2010, in response to a court settlement and GAO’s recommendations, BLM issued a new instruction memorandum substantially addressing the gaps and shortcomings in BLM’s guidance that GAO had identified. In addition, BLM was developing a second instruction memorandum to address GAO’s recommendation that it standardize decision documents when, on August 12, 2011, a decision was reached in Western Energy Alliance v. Salazar. The court held that the May 2010 instruction memorandum constituted a regulation that BLM adopted without using proper rule-making procedures and issued a nationwide injunction blocking the memorandum’s implementation. According to a BLM official, the ruling has prevented BLM from implementing key parts of the memorandum and called into question the issuance of the second memorandum aimed at further addressing GAO’s recommendations. GAO is making no new recommendations at this time.