Proposed Rule2023-18990
Management and Protection of the National Petroleum Reserve in Alaska
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
September 8, 2023
Issuing agencies
Interior DepartmentLand Management Bureau
Abstract
The Bureau of Land Management (BLM) is proposing a new rule to govern the management of surface resources and Special Areas in the National Petroleum Reserve in Alaska (NPR-A), consistent with its duties under the Naval Petroleum Reserves Production Act (NPRPA), Federal Land Policy and Management Act (FLPMA), and other authorities. The proposed rule would revise the framework for designating and assuring maximum protection of Special Areas' significant resource values, and would protect and enhance access for subsistence activities throughout the NPR-A. It would also incorporate aspects of the NPR-A Integrated Activity Plan (IAP) approved in April 2022. The proposed rule would have no effect on currently authorized oil and gas operations in the NPR-A. We solicit comments on all aspects of this proposed action.
Full Text
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<title>Federal Register, Volume 88 Issue 173 (Friday, September 8, 2023)</title>
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[Federal Register Volume 88, Number 173 (Friday, September 8, 2023)]
[Proposed Rules]
[Pages 62025-62043]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-18990]
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DEPARTMENT OF THE INTERIOR
Bureau of Land Management
43 CFR Part 2360
[BLM_HQ_FRN_MO4500173644]
RIN 1004-AE95
Management and Protection of the National Petroleum Reserve in
Alaska
AGENCY: Bureau of Land Management, Interior.
ACTION: Proposed rule.
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SUMMARY: The Bureau of Land Management (BLM) is proposing a new rule to
govern the management of surface resources and Special Areas in the
National Petroleum Reserve in Alaska (NPR-A), consistent with its
duties under the Naval Petroleum Reserves Production Act (NPRPA),
Federal Land Policy and Management Act (FLPMA), and other authorities.
The proposed rule would revise the framework for designating and
assuring maximum protection of Special Areas' significant resource
values, and would protect and enhance access for subsistence activities
throughout the NPR-A. It would also incorporate aspects of the NPR-A
Integrated Activity Plan (IAP) approved in April 2022. The proposed
rule would have no effect on currently authorized oil and gas
operations in the NPR-A. We solicit comments on all aspects of this
proposed action.
DATES: Please submit comments on this proposed rule to the BLM on or
before November 7, 2023. The BLM is not obligated to consider any
comments received after this date in making its decision on the final
rule.
Information Collection Requirements: This proposed rule includes
existing and a proposed new information-collection requirement that
must be approved by the Office of Management and Budget (OMB). If you
wish to comment on the information-collection requirements, please note
that such comments should be sent directly to the OMB, and that the OMB
is required to make a decision concerning the collection of information
contained in this proposed rule between 30 and 60 days after
publication of this document in the Federal Register. Therefore, a
comment to the OMB on the proposed information-collection revisions is
best assured of being given full consideration if the OMB receives it
by November 7, 2023.
ADDRESSES:
Mail, Personal, or Messenger Delivery: U.S. Department of the
Interior, Director
[[Page 62026]]
(630), Bureau of Land Management, 1849 C St. NW, Room 5646, Washington,
DC 20240, Attention: 1004-AE95.
Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>. In the
Searchbox, enter ``RIN 1004-AE95 and click the ``Search'' button.
Follow the instructions at this website.
For Comments on Information--Collection Activities
Written comments and suggestions on the information-collection
requirements should be submitted by the date specified (see DATES) to
<a href="http://www.reginfo.gov/public/do/PRAMain">www.reginfo.gov/public/do/PRAMain</a>. Find this specific information-
collection by selecting ``Currently under Review--Open for Public
Comments'' or by using the search function. If you submit comments on
these information-collection burdens, you should provide the BLM with a
copy at one of the addresses shown earlier in this section, so that we
can summarize all written comments and address them in the final
rulemaking. Please indicate ``Attention: OMB Control Number 1004-XXXX
(RIN 1004-AE95) regardless of the method used to submit comments on the
information collection burdens. Comments not pertaining to the proposed
rule's information-collection burdens should not be submitted to OMB.
The BLM is not obligated to consider or include in the Administrative
Record for the final rule any comments that are improperly directed to
OMB.
FOR FURTHER INFORMATION CONTACT: James Tichenor, Advisor--Office of the
Director, at 202-573-0536 or <a href="/cdn-cgi/l/email-protection#503a24393338353e3f2210323c3d7e373f26"><span class="__cf_email__" data-cfemail="18726c717b707d76776a587a7475367f776e">[email protected]</span></a> with a subject line of
``RIN 1004-AE95.'' For questions relating to regulatory process issues,
contact Faith Bremner at <a href="/cdn-cgi/l/email-protection#5a3c38283f37343f281a383637743d352c"><span class="__cf_email__" data-cfemail="2a4c48584f47444f586a484647044d455c">[email protected]</span></a>.
Individuals in the United States who are deaf, deafblind, hard of
hearing, or have a speech disability may dial 711 (TTY, TDD, or
TeleBraille) to access telecommunications relay services. Individuals
outside the United States should use the relay services offered within
their country to make international calls to the point-of-contact in
the United States. For a summary of the proposed rule, please see the
proposed rule summary document in docket BLM-2023-0006 on
<a href="http://www.regulations.gov">www.regulations.gov</a>.
SUPPLEMENTARY INFORMATION:
I. Public Comment Procedures
II. Background
A. Introduction
B. Brief Administrative History of the NPR-A
C. Statutory Authority for Managing the NPR-A
D. Current Conditions
E. Need for the Rule
III. Section-by-Section Discussion
IV. Procedural Matters
I. Public Comment Procedures
If you wish to comment on this proposed rule, you may submit your
comments to the BLM by mail, personal or messenger delivery during
regular hours (7:45 a.m. to 4:15 p.m.), Monday through Friday, except
holidays, or through <a href="https://www.regulations.gov">https://www.regulations.gov</a> (see the ADDRESSES
section).
Please make your comments on the proposed rule as specific as
possible, confine them to issues pertinent to the proposed rule,
explain the reason for any changes you recommend, and include any
supporting documentation. Where possible, your comments should
reference the specific section or paragraph of the proposal that you
are addressing. The BLM is not obligated to consider or include in the
Administrative Record for the proposed rule comments that we receive
after the close of the comment period (see DATES) or comments delivered
to an address other than those listed earlier (see ADDRESSES).
Comments, including names and street addresses of respondents, will
be available for public review at the address listed under ADDRESSES.
Before including your address, telephone number, email address, or
other personal identifying information in your comment, be advised that
your entire comment, including your personal identifying information,
may be made publicly available at any time. While you can ask us in
your comment to withhold from public review your personal identifying
information, we cannot guarantee that we will be able to do so.
II. Background
A. Introduction
This proposed rule would revise the management framework for
surface resources throughout the NPR-A and Special Areas in the NPR-A.
The BLM has not updated this framework in the more than 45 years since
the original and still current rule for management of NPR-A surface
resources and Special Areas was promulgated in 1977. 42 FR 28721 (June
3, 1977). Currently, the legal standards and procedures that govern the
NPR-A are scattered throughout several statutes, regulations, plans,
and guidance documents. This proposed rule would provide a more
comprehensive guide to managing the NPR-A. It would improve upon the
existing regulations' standards and procedures to balance oil and gas
activities with the protection of surface resources in the NPR-A;
designate and assure maximum protection of Special Areas' significant
resource values; and maintain and enhance access for long-standing
subsistence activities. The proposed rule would also implement
statutory provisions that post-date the current regulations, including
the Department of the Interior Appropriations Act, Fiscal Year 1981,
which directed the Secretary to ``conduct an expeditious program of
competitive leasing of oil and gas'' in the NPR-A, while ``provid[ing]
for such conditions, restrictions, and prohibitions as the Secretary
deems necessary or appropriate to mitigate reasonably foreseeable and
significantly adverse effects on . . . surface resources . . . .''
Public Law 96-514, 94 Stat. 2957 (1980). The proposed rule would not
affect existing leases in the NPR-A.
B. Brief Administrative History of the NPR-A
In the early 20th century, the Federal government established
several naval petroleum reserves on public land, including the NPR-A,
which President Warren G. Harding designated in 1923. Exec. Order 3797-
A. The NPR-A extends from the north slope of the Brooks Range to the
Arctic Coast and encompasses approximately 23 million acres of public
land.
In the decades that followed, the U.S. Navy began exploring for oil
and gas in the NPR-A; however, by the 1970s, as Congress began debating
the role of the naval petroleum reserves within the context of the
nation's changing energy needs, the NPR-A remained ``largely unexplored
and almost completely undeveloped.'' H.R. Rep. No. 94-156, at 3 (1975).
In 1976, Congress passed the NPRPA, which transferred management of the
NPR-A to the Department of the Interior (DOI) and directed the
President to prepare a study to ``determine the best overall
procedures'' for exploring, developing, and transporting the reserve's
oil and gas resources. Public Law 94-258, section 105 (1976) (codified
at 42 U.S.C. 6505(b)).
In the NPRPA, Congress sought to strike a balance between
exploration and ``the protection of environmental, fish and wildlife,
and historical or scenic values'' in the NPR-A. It did so by directing
the Secretary to ``promulgate such rules and regulations as he [or she]
deems necessary and appropriate for the protection of such values
within the reserve.'' 42 U.S.C. 6503(b). The Conference Report
explained that the Act would immediately vest responsibility for
protection of the NPR-A's ``natural, fish
[[Page 62027]]
and wildlife, scenic and historical values . . . in the Secretary of
the Interior . . . so that any activities which are or might be
detrimental to such values will be carefully controlled.'' H.R. Conf.
Rep. No. 94-942 (1976). The report stated the Conference Committee's
expectation ``that the Secretary will take every precaution to avoid
unnecessary surface damage and to minimize ecological disturbances
throughout the reserve.'' Id.
In the same Act, Congress directed that ``[a]ny exploration within
the Utukok River, the Teshekpuk Lake areas, and other areas designated
by the Secretary of the Interior containing any significant
subsistence, recreational, fish and wildlife, or historical or scenic
value, shall be conducted in a manner which will assure the maximum
protection of such surface values to the extent consistent with the
requirements of this Act for the exploration of the reserve.'' 42
U.S.C. 6504(a). The Conference Report elaborated that the Act would
``immediately authorize the Secretary to require that the exploration
activities within these designated areas be conducted in a manner
designed to minimize adverse impacts on the values which these areas
contain.'' H.R. Conf. Rep. No. 94-942 (1976). The ``maximum
protection'' standard is an unusually high protective bar in comparison
to other statutes granting authority to the BLM. See, e.g., 43 U.S.C.
1632; 16 U.S.C. 7202(c)(2).
1. Special Area Designations
There are currently five Special Areas in the NPR-A that protect a
wide range of significant subsistence, recreational, fish and wildlife,
historical, and scenic values. Responding to the congressional mandate
to protect the values of highly sensitive areas in the NPR-A,
particularly Teshekpuk Lake and the Utukok River Uplands, which the
NPRPA specifically identified for protection, the Secretary in 1977
delineated the boundaries of those two congressionally designated
Special Areas and also designated a third: the Colville River Special
Area. 42 FR 28723 (June 3, 1977). The Secretary specifically identified
the significant resource values to be protected for each of the three
Special Areas:
<bullet> Colville River: ``The central Colville River and some of
its tributaries provide critical nesting habitat for the Arctic
peregrine falcon, an endangered species. The bluffs and cliffs along
the Colville River provide nesting sites with the adjacent areas being
utilized as food hunting areas. . . . A total area of approximately
2,300,000 acres within the reserve is identified for inclusion in the
Colville River special area.'' Id.
<bullet> Teshekpuk Lake: ``The Teshekpuk Lake and its watershed are
an important nesting, staging, and molting habitat for a large number
of ducks, geese, and swans. Because of its importance to these
migratory birds and numerous other waterbirds, a total of approximately
1,734,000 acres is identified as the Teshekpuk Lake special area.'' Id.
<bullet> Utukok River Uplands: ``The Utukok River Uplands special
area contains critical habitat for caribou. The critical decline in the
population level of the western Arctic caribou herd (from 70,000 in
1975 to 35,000 in 1976) necessitates maximum protection of this area,
which is ordinarily the calving territory for this herd. . . . Because
of the nomadic nature of the caribou, a large area encompassing
approximately 4,032,000 acres is included within this area.'' Id.
In 1999, the Secretary expanded the Colville River and Teshekpuk
Lake Special Areas. The Secretary added ``much of the Kikiakrorak and
Kogosukruk Rivers and an area approximately two miles on either side of
these rivers'' to the Colville River Special Area, increasing its size
to 2.44 million acres.\1\ The Secretary also added the 10,000-acre Pik
Dunes Land Use Emphasis Area to the Teshekpuk Lake Special Area.\2\
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\1\ BLM, Colville River Special Area (CRSA) Management Plan
Environmental Assessment (EA) 1 (July 2008), available at <a href="https://eplanning.blm.gov/public_projects/nepa/5251/160692/196467/Colville_River_Special_Area_EA.pdf">https://eplanning.blm.gov/public_projects/nepa/5251/160692/196467/Colville_River_Special_Area_EA.pdf</a>; Designation of Additions to
Special Areas in NPR-A; Alaska, 64 FR 16,747 (April 6, 1999).
\2\ 64 FR 16747; BLM, NPR-A Final Integrated Activity (IAP)
Plan/Environmental Impact Statement (EIS) 355 (Nov. 2012), available
at <a href="https://eplanning.blm.gov/public_projects/nepa/5251/41003/43153/Vol1_NPR-A_Final_IAP_FEIS.pdf">https://eplanning.blm.gov/public_projects/nepa/5251/41003/43153/Vol1_NPR-A_Final_IAP_FEIS.pdf</a>.
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In 2004, the Secretary designated a fourth Special Area, Kasegaluk
Lagoon, which encompasses 97,000 acres. 70 FR 9096 (Feb. 24, 2005). The
Kasegaluk Lagoon Special Area is located in the northwestern corner of
the NPR-A and includes important habitat for marine mammals, among
other values.\3\
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\3\ BLM, Northwest NPR-A IAP/EIS Record of Decision (ROD) 4
(Jan. 2004), available at <a href="https://web.archive.org/web/20041204130751/http://www.ak.blm.gov/affairs/press/pr2003/Final_Northwest_NPR-A_ROD.pdf">https://web.archive.org/web/20041204130751/http://www.ak.blm.gov/affairs/press/pr2003/Final_Northwest_NPR-A_ROD.pdf</a>.
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In 2013, the Secretary made several decisions concerning Special
Areas. First, the Secretary designated a fifth Special Area: Peard Bay.
The 107,000-acre area was designated to ``protect haul-out areas and
nearshore waters for marine mammals and a high use staging and
migration area for shorebirds and waterbirds.'' \4\ Second, the
Secretary expanded the Teshekpuk Lake Special Area by 2 million acres
``to encompass all the roughly 30-to-50-mile band of land valuable for
bird and caribou habitat between Native-owned lands near Barrow and
Native-owned lands near Nuiqsut . . . .'' \5\ Third, the Secretary
expanded the Utukok River Uplands Special Area to 7.1 million acres
``to more fully encompass prime calving and insect-relief habitat
within the NPR-A . . . .'' \6\ Finally, the Secretary broadened the
purpose of the Colville River Special Area to include the ``protect[ion
of] all raptors, rather than the original intent of protection for
arctic peregrine falcons.'' \7\
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\4\ BLM, NPR-A IAP ROD 4 (Feb. 2013), available at <a href="https://eplanning.blm.gov/public_projects/nepa/5251/42462/45213/NPR-A_FINAL_ROD_2-21-13.pdf">https://eplanning.blm.gov/public_projects/nepa/5251/42462/45213/NPR-A_FINAL_ROD_2-21-13.pdf</a>.
\5\ Id. at 19.
\6\ Id. at 4.
\7\ Id.
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The BLM currently manages all five Special Areas in accordance with
the NPR-A IAP Record of Decision (ROD) of April 2022. The IAP provides
for the management of the NPR-A, designates areas within the NPR-A for
oil and gas leasing, infrastructure, and special protections, and
identifies stipulations and required operating procedures to mitigate
the impact of oil and gas and other permitted activities.\8\ The first
IAP, which the BLM finalized in 1998, addressed management of the
northeast NPR-A. This IAP superseded a 1983 oil and gas leasing
environmental impact statement (EIS), which, until 1998, controlled
leasing decisions throughout the NPR-A. In 2004 the BLM issued a
separate IAP for the northwest NPR-A, and in 2013, the BLM approved an
IAP that addressed activities and resources throughout the NPR-A.
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\8\ BLM, NPR-A IAP ROD 2-3 (Apr. 2022), available at <a href="https://eplanning.blm.gov/public_projects/117408/200284263/20058238/250064420/2022_NPRA_IAP_ROD_508.pdf">https://eplanning.blm.gov/public_projects/117408/200284263/20058238/250064420/2022_NPRA_IAP_ROD_508.pdf</a>.
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The current IAP, adopted in April 2022, was informed by a Final EIS
issued by the agency in 2020. The EIS evaluated a range of alternatives
for managing oil and gas activities and resources in the NPR-A. These
alternatives were informed and shaped by extensive outreach efforts
with the public and stakeholders, including:
<bullet> Scoping: During the scoping period from November 21, 2018,
to February 15, 2019, the BLM held eight public meetings in Alaska and
received approximately 56,000 comment submissions, including form
letters.
<bullet> Public Review of the Draft IAP/EIS: During the comment
period for the Draft IAP/EIS from November 25, 2019,
[[Page 62028]]
through February 5, 2020, the BLM held eight public meetings in Alaska
and received more than 82,000 comments, including form letters and
signed petitions.
<bullet> Comments received after the Final IAP/EIS was released and
prior to the ROD: In reaching the decision in the 2022 ROD, the BLM
reviewed and fully considered comments received after distribution of
the Final IAP/EIS on June 26, 2020. The comments did not identify any
significant new circumstances or information related to environmental
concerns bearing upon the proposed action or its impacts. Instead, they
generally reflected concerns already raised by comments submitted
during scoping and the public's review of the Draft IAP/EIS.
In addition to the above, the current IAP benefited from
suggestions and careful review of the analysis in the IAP/EIS by
several cooperating agencies: the Bureau of Ocean Energy Management,
I[ntilde]upiat Community of the Arctic Slope, National Park Service,
North Slope Borough, State of Alaska, and U.S. Fish and Wildlife
Service. During the IAP/EIS process, the BLM consulted with:
<bullet> Tribes as required by a Presidential Executive Memorandum
dated April 29, 1994;
<bullet> Communities, Tribal organizations, and Native corporations
on the North Slope;
<bullet> The U.S. Fish and Wildlife Service and the National
Oceanic and Atmospheric Administration-- Fisheries pursuant to the
Endangered Species Act; and
<bullet> Alaska's State Historic Preservation Office pursuant to
the National Historic Preservation Act.
Pursuant to Alaska National Interest Lands Conservation Act
(ANILCA) section 810(a)(1) and (2), the BLM also conducted hearings in
North Slope communities to gather comments regarding potential impacts
to subsistence use resulting from the alternatives considered in the
IAP/EIS.
2. Oil and Gas Leasing in the NPR-A
In 1980, Congress authorized competitive leasing of Federal oil and
gas resources in the NPR-A. Public Law 96-514 (1980) (codified at 42
U.S.C. 6506a(a)). The BLM held two NPR-A lease sales in 1982 and one
each in 1983 and 1984.\9\ After receiving no bids during the 1984 lease
sale and determining that the oil and gas industry had ``little
interest in another lease sale,'' the BLM discontinued sales in the
NPR-A for the next 15 years.\10\
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\9\ U.S. Geological Survey, The NPR-A Data Archive 2 (Mar.
2001), available at <a href="https://pubs.usgs.gov/fs/fs024-01/fs024-01.pdf">https://pubs.usgs.gov/fs/fs024-01/fs024-01.pdf</a>.
\10\ BLM, Northeast NPR-A Final IAP/EIS (Aug. 1998), available
at <a href="https://web.archive.org/web/20001018022001/http:/aurora.ak.blm.gov/npra/final/html/contents_vol1.html">https://web.archive.org/web/20001018022001/http:/aurora.ak.blm.gov/npra/final/html/contents_vol1.html</a>.
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In the 1990s, following technological advances and successful
development on nearby State lands, industry expressed a desire to
resume leasing in the NPR-A.\11\ The BLM restarted lease sales in 1999
and, over the next 2 decades, held a total of 15 sales for the NPR-A.
These sales initially generated considerable bonus bid revenue for the
Federal government and the State of Alaska, as the BLM collected an
average of $74 million in bonus bids at sales held in 1999, 2002, and
2004.\12\ However, bid revenue dropped off significantly as lands in
the NPR-A with the highest potential for development were leased.
Between 2006 and 2019, the BLM received an average of just $6 million
in bonus bids per sale, and millions of acres offered for lease went
unsold. Between 1999 and 2019, the BLM offered nearly 60 million acres
of leases in the NPR-A but received bids on just 12 percent of that
acreage.\13\
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\11\ Id.
\12\ BLM, NPR-A Sale Statistics 1999 to Present, available at
<a href="https://www.blm.gov/sites/blm.gov/files/documents/files/Oil_Gas_Alaska_NPR-A_LeaseSale_Statistics_1999toPresent.pdf">https://www.blm.gov/sites/blm.gov/files/documents/files/Oil_Gas_Alaska_NPR-A_LeaseSale_Statistics_1999toPresent.pdf</a>.
\13\ Id.
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C. Statutory Authority for Managing the NPR-A
1. NPRPA
The NPRPA is the primary source of management authority for the
NPR-A. Under the NPRPA, the Secretary must ``assume all
responsibilities'' for ``any activities related to the protection of
environmental, fish and wildlife, and historical or scenic values'' and
``promulgate such rules and regulations as he [or she] deems necessary
and appropriate for the protection of such values within the reserve.''
42 U.S.C. 6503(b).
Congress has also directed the Secretary to ``conduct an
expeditious program of competitive leasing of oil and gas'' in the NPR-
A. Id. at 6506a(a). But the Secretary must ensure that all activities
taken pursuant to the NPRPA ``include or provide for such conditions,
restrictions, and prohibitions as the Secretary deems necessary or
appropriate to mitigate reasonably foreseeable and significantly
adverse effects on the surface resources'' throughout the NPR-A. Id. at
6506a(b).
The NPRPA also authorizes the Secretary to designate Special Areas
to protect ``significant subsistence, recreational, fish and wildlife,
or historical or scenic value[s]'' in the NPR-A and provides that any
``exploration'' in Special Areas ``shall be conducted in a manner which
will assure the maximum protection of such surface values to the extent
consistent with the requirements of this Act for the exploration of the
reserve.'' Id. at 6504(a). Congress enacted that provision in 1976,
prior to its authorization of competitive leasing in 1980. As a result,
that provision expressly references only ``exploration'' and not
leasing or other oil and gas activities. Nonetheless, the BLM has long
interpreted that language to require maximum protection of Special
Areas' significant resource values from the impacts of all oil and gas
activities.\14\ In 1980, when Congress authorized the Secretary to
lease oil and gas in the NPR-A, it expressly required the BLM to
``mitigate reasonably foreseeable and significantly adverse effects on
surface resources'' throughout the NPR-A. 42 U.S.C. 6506a(b). That
mandate mirrored the 1976 Conference Committee's statement that ``it .
. . expected . . . the Secretary will take every precaution to avoid
unnecessary surface damage and to minimize ecological disturbances
throughout the reserve'' and not solely in Special Areas. H.R. Rep. 94-
942, at 21 (1976). The 1980 Act also provided that ``any exploration or
production undertaken pursuant to this section be in accordance with
section 104(b) of the Naval Petroleum Reserves Production Act of
1976.'' 90 Stat. 2965. The referenced section of the NPRPA is the
maximum protection provision codified at section 6504(a), and thus the
maximum protection provision applies to production activities as well
as exploration. In any event, it would make little sense for Congress
to require maximum protection of surface values from exploration while
requiring lesser protection from the greater impacts of oil and gas
development. Accordingly, in the BLM's longstanding view, reading
[[Page 62029]]
those two provisions (42 U.S.C. 6504(a) and 6506a(b)) together,
Congress intended that BLM would provide for heightened (i.e., maximum)
protection from the impacts of all oil and gas activities in Special
Areas, but provide for lesser protection (mitigating reasonably
foreseeable significant impacts) elsewhere throughout the Reserve.
Interpreting the special areas provision (6504(a)) to apply only to
exploration activities--when Congress chose not to repeal that
provision when it authorized leasing,--would lead to the illogical
result that BLM is required to apply a higher standard of protection
for exploration, only to allow the greater impacts of oil and gas
development to harm those same resources. That is, in the BLM's
longstanding view, inconsistent with Congressional intent.
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\14\ See, e.g., BLM, NPR-A Final IAP/EIS at 3-338 (June 2020),
available at <a href="https://eplanning.blm.gov/public_projects/117408/200284263/20020421/250026625/Volume%202_Appendices%20B-Y.pdf">https://eplanning.blm.gov/public_projects/117408/200284263/20020421/250026625/Volume%202_Appendices%20B-Y.pdf</a>; BLM,
Northeast NPR-A IAP/EIS ROD 13 (Oct. 1998) BLM, Amendment to the
Northeast NPR-A IAP/EIS ROD 22 (Jan. 2006) (``Maximum protection of
important surface resources is provided in Special Areas designated
by the Secretary through a combination of prohibitions,
restrictions, and stipulations restricting oil and gas facilities
and other activities that might adversely impact wildlife habitat
and subsistence use areas.'')., available at <a href="https://web.archive.org/web/20170212030656/https://www.blm.gov/style/medialib/blm/ak/aktest/planning/ne_npra_final_supplement.Par.62144.File.dat/npra_final_app_l.pdf">https://web.archive.org/web/20170212030656/https://www.blm.gov/style/medialib/blm/ak/aktest/planning/ne_npra_final_supplement.Par.62144.File.dat/npra_final_app_l.pdf</a><a href="https://web.archive.org/web/20170301153536/https:/www.blm.gov/style/medialib/blm/ak/aktest/planning/ne_npra.Par.77875.File.dat/nerod_122205final.pdf">https://web.archive.org/web/20170301153536/https:/www.blm.gov/style/medialib/blm/ak/aktest/planning/ne_npra.Par.77875.File.dat/nerod_122205final.pdf</a>.
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2. Other Authorities
Other authorities that guide management of the NPR-A include FLPMA
and the ANILCA. Although Congress in 1980 exempted the NPR-A from
FLPMA's land use planning and wilderness study requirements, 42 U.S.C.
6506a(c), it did not exempt the NPR-A from FLPMA's other mandates.
Hence, the BLM must still ``take any action necessary to prevent
unnecessary or undue degradation'' of all BLM-administered public
lands, including within the NPR-A. 43 U.S.C. 1732(b).
Under section 810 of ANILCA, the BLM must ``evaluate the effect''
of proposed oil and gas activities ``on subsistence uses and needs . .
. .'' 16 U.S.C. 3120(a). If such activities will ``significantly
restrict subsistence uses,'' then the BLM must hold hearings in
affected communities, limit activities to ``the minimal amount of
public lands necessary,'' and take ``reasonable steps . . . to minimize
adverse impacts upon subsistence uses and resources . . . .'' Id.
Fulfilling section 810's requirements is of crucial importance for the
NPR-A, as over 40 communities utilize its resources for subsistence
purposes.\15\
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\15\ BLM, Determination of NEPA Adequacy (DNA): NPR-A IAP 2020
Final EIS Evaluation 9 (Apr. 2022), available at <a href="https://eplanning.blm.gov/public_projects/117408/200284263/20058231/250064413/NPRA%20IAP%20DNA%20signed%20508.pdf">https://eplanning.blm.gov/public_projects/117408/200284263/20058231/250064413/NPRA%20IAP%20DNA%20signed%20508.pdf</a>.
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D. Current Conditions
Conditions in the NPR-A are changing rapidly, as the Arctic
continues to warm more than twice as fast as the rest of the Earth.\16\
This is causing disruptions to natural ecosystems, Native communities,
and subsistence use patterns throughout the NPR-A. Notable changes
include accelerating permafrost degradation; impairment of sensitive
wildlife habitat and movement corridors, particularly for caribou;
alterations in plant communities; and impacts on subsistence
activities.\17\ From a management standpoint, climate change is
``introduc[ing] substantial uncertainty,'' particularly ``in predicting
demographic trends of species in the area[,] and will make the
predicted impacts of development more difficult to accurately assess.''
\18\
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\16\ National Oceanic and Atmospheric Administration, 2022
Arctic Report Card, available at <a href="https://www.arctic.noaa.gov/Report-Card/Report-Card-2022">https://www.arctic.noaa.gov/Report-Card/Report-Card-2022</a>.
\17\ BLM, Willow Master Development Plan (MDP) Supplemental EIS
(SEIS) 37-38, 148-49, 415-16, 422 (Jan. 2023), available at <a href="https://eplanning.blm.gov/public_projects/109410/200258032/20073121/250079303/Willow%20FSEIS_Vol%201_Ch%201-Ch%205.pdf">https://eplanning.blm.gov/public_projects/109410/200258032/20073121/250079303/Willow%20FSEIS_Vol%201_Ch%201-Ch%205.pdf</a>.
\18\ Id. at 413-14.
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At the same time, oil and gas development is continuing in the NPR-
A, and this proposed rule would have no effect on existing activities.
Approximately 2.5 million acres of the NPR-A are currently leased. The
bulk of existing leases are clustered within an area of high
development potential between Teshekpuk Lake and the Colville
River.\19\ Outside of this area, the NPR-A's development potential is
medium and low.\20\ Production is occurring on two pads in the Greater
Mooses Tooth (GMT) Unit immediately west of the community of Nuiqsut.
Additional development is planned in the Beartooth Unit, including
under the Willow Master Development Plan (MDP), which the BLM approved
on March 12, 2023. When fully built out, the Willow project will
include three pads with up to 199 wells, a network of roads and
pipelines, a central processing facility, and an operations center.\21\
In conjunction with the approval of the Willow MDP, the project
proponent voluntarily agreed to relinquish approximately 68,000 acres
of leases in the NPR-A, including approximately 60,000 acres in the
Teshekpuk Lake Special Area.\22\ This relinquishment, along with
additional provisions adopted in the Willow MDP ROD, will create an
additional buffer from exploration and development activities near the
calving grounds and migratory routes for the Teshekpuk Lake caribou
herd, an important subsistence resource for nearby Alaska Native
communities.\23\ Significant surface resources are found throughout the
NPR-A, but are concentrated in the Teshekpuk Lake Special Area and the
other Special Areas. These resources include:
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\19\ 2020 NPR-A IAP Final EIS at B-3 (June 2020).
\20\ Id. at B-5.
\21\ BLM, Willow MDP ROD 3 (Mar. 2023), available at <a href="https://eplanning.blm.gov/public_projects/109410/200258032/20075029/250081211/2023%20Willow%20MDP%20Record%20of%20Decision.pdf">https://eplanning.blm.gov/public_projects/109410/200258032/20075029/250081211/2023%20Willow%20MDP%20Record%20of%20Decision.pdf</a>.
\22\ DOI, Interior Department Substantially Reduces Scope of
Willow Project (Mar. 13, 2023), available at <a href="https://doi.gov/pressreleases/interior-department-substantially-reduces-scope-willow-project">https://doi.gov/pressreleases/interior-department-substantially-reduces-scope-willow-project</a>.
\23\ Id.
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<bullet> Caribou: Because caribou exhibit high fidelity to calving
grounds, herds are identified based on the location of those
grounds.\24\ The NPR-A contains extensive calving grounds for two
herds: the Teshekpuk Caribou Herd and the Western Arctic Caribou
Herd.\25\ During most years, the highest density of calving and post-
calving use for the Teshekpuk herd occurs southeast of Teshekpuk Lake.
Based on the results of a 2022 photo-census, the Teshekpuk herd
population appears stable in spite of low birth rates and high harvest
levels.\26\ The principal calving grounds of the Western Arctic herd
are located in the Utukok River Uplands Special Area. After reaching a
recorded peak population of 243,000 animals in the 1970s, the Western
Arctic herd has declined in recent years.\27\ According to the Alaska
Department of Fish & Game, the Western Arctic herd population now
stands at roughly 164,000 animals. For this reason, the Western Arctic
Caribou Herd Working Group recently designated the herd as
``Preservative, Declining''--a management designation that triggers
harvest and other restrictions--and recommended strengthening
protections for the Western Arctic's calving grounds in the NPR-A.\28\
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\24\ Willow MDP SEIS at 224.
\25\ 2020 NPR-A IAP Final EIS at 3-180.
\26\ Willow MDP SEIS at 224.
\27\ 2020 NPR-A IAP Final EIS at 3-181-82; see also Western
Arctic Caribou Herd Working Group, Draft--2022 Meeting Summary 16-
17, available at <a href="https://westernarcticcaribou.net/wp-content/uploads/2023/02/2022-WACH-WG-Meeting-Summary-DRAFT-for-WACHWG-approval-at-2023-2.14.2023.pdf">https://westernarcticcaribou.net/wp-content/uploads/2023/02/2022-WACH-WG-Meeting-Summary-DRAFT-for-WACHWG-approval-at-2023-2.14.2023.pdf</a>. ``Primary causes of mortality are
predation, `unknown'. . . . Since 2005, the herd has had more years
of decline than increase or stability, with cow mortality higher and
calf recruitment lower.''
\28\ Western Arctic Caribou Herd Working Group, Draft--2022
Meeting Summary 16-17, available at <a href="https://westernarcticcaribou.net/wp-content/uploads/2023/02/2022-WACH-WG-Meeting-Summary-DRAFT-for-WACHWG-approval-at-2023-2.14.2023.pdf">https://westernarcticcaribou.net/wp-content/uploads/2023/02/2022-WACH-WG-Meeting-Summary-DRAFT-for-WACHWG-approval-at-2023-2.14.2023.pdf</a>.
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<bullet> Birds: Concentrations of shore and waterbirds in the NPR-A
are among the highest in the Arctic coastal plain. In recognition of
this, the National Audubon Society has identified seven Important Bird
Areas in the NPR-A, including three within the Colville River,
Kasegaluk Lagoon, and Teshekpuk Lake Special Areas. The East
[[Page 62030]]
Asian-Australasian Flyway Partnership (EAAFP) has also designated the
Qupa[lstrok]uk EAAFP Flyway Network Site within the Teshekpuk Lake
Special Area.\29\ The lake contains an ``exceptional'' breeding and
molting ground for geese and other waterfowl, as an estimated 573,000
birds breed at the lake. The NPR-A also provides habitat for two
threatened species--the spectacled eider and the Alaska breeding
population of Steller's eider--and 11 BLM Alaska special status
species. Many of the bird populations breeding in the Arctic have been
in decline since the 1980s; shorebirds as a group have declined by
about half and land-birds by about 20 percent.\30\
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\29\ East Asian-Australasian Flyway Partnership, Qupa[lstrok]uk
Flyway Network Site [EAAF133]--East Asian-Australasian Flyway
Partnership, available at <a href="https://www.eaaflyway.net/qupaluk-flyway-network-site-eaaf133-east-asian-australasian-flyway-partnership/">https://www.eaaflyway.net/qupaluk-flyway-network-site-eaaf133-east-asian-australasian-flyway-partnership/</a>.
\30\ 2020 NPR-A IAP Final EIS at 3-137-46.
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<bullet> Fish: Fish are widely distributed in the NPR-A's extensive
network of lakes, ponds, alluvial and beaded streams, and adjacent
wetlands. The most common fish species are Arctic grayling, broad
whitefish, burbot, least cisco, Arctic cisco, Arctic flounder, round
whitefish, humpback whitefish, and ninespine stickleback. The NPR-A
also provides ``essential'' habitat for several species of Pacific
salmon.\31\ Many fish species, particularly anadromous species, migrate
both locally and extensively between major drainages to access habitats
that support various life history stages.\32\ Most of these habitats
currently exhibit few, if any, impacts from human activities.\33\
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\31\ 2020 NPR-A IAP Final EIS at 3-122, M-2, M-3.
\32\ Willow MDP SEIS at 165.
\33\ 2020 NPR-A IAP Final EIS at 3-119.
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<bullet> Marine mammals: Eleven species of marine mammals are found
in or near the NPR-A, including six cetaceans (bowhead whales, minke
whales, gray whales, killer whales, beluga whales, and narwhals), four
pinnipeds (pacific walrus, bearded seals, spotted seals, and ringed
seals), and the polar bear; four of these species are listed as
threatened or endangered under the ESA. Special Areas provide important
habitat for many marine mammals, including spotted seals and walruses,
which utilize haul-out areas in the Kasegaluk Lagoon and Peard Bay
Special Areas, and polar bears, which are increasingly using
terrestrial habitats in the Teshekpuk Lake Special Area due to receding
sea ice. Overall, the implications of climate change for marine mammals
in the Arctic are substantial. Continued arctic warming and the
resulting deterioration of sea ice pose a major threat to marine
mammals and their prey in the Arctic.\34\
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\34\ Id. at 3-208-222.
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<bullet> Cultural resources: Although less than 3 percent of the
NPR-A has been surveyed for cultural resources, nearly 2,000 sites have
been identified. Additionally, there are 925 documented Traditional
Land Use Inventory sites in the NPR-A, which are important place names,
landmarks, traditional land use sites, travel routes, and other places
of cultural importance to the North Slope I[ntilde]upiat. These sites
have ongoing spiritual and cultural importance to residents of the
North Slope. Protecting cultural resources sites, both documented and
undocumented, is of concern to the I[ntilde]upiat. However, early
exploration and development projects on the North Slope had a greater
potential to affect cultural resources due to the less stringent
regulations and identification requirements than those in place today.
For example, oil exploration trails have been associated with some
damage to the Qalluvuk site, a traditional fishing and hunting area
that also served as a trading station in the 1930s. Other observations,
testimony, and traditional knowledge from local residents have
documented experiences associated with cultural resource impacts,
including the potential disturbance of gravesites and camps from winter
seismic exploration activities.\35\
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\35\ Id. at 3-249-51.
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<bullet> Recreation resources: The NPR-A offers numerous unique and
primitive recreational opportunities, including backpacking, boating,
sight-seeing, hunting, fishing, tourism, and off-highway vehicle use.
Because most of the NPR-A is considered an unmodified natural
environment, individual users rarely, if ever, encounter other
recreationists. Guided expeditions for backpacking, sight-seeing, and
hunting primarily occur in the Utukok River Uplands. Similar
recreational activities also occur in the vicinity of Teshekpuk Lake
and Umiat.\36\
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\36\ Id. at 3-319.
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Over 40 communities harvest subsistence resources from the NPR-A,
including many of the resources described earlier. Six communities in
particular--Anaktuvuk Pass, Atqasuk, Nuiqsut, Point Lay, Utqiagvik, and
Wainwright--harvest all or nearly all of their subsistence resources
from the NPR-A, including large land mammals (primarily caribou or
moose), furbearers and small land mammals, non-salmon fish, waterfowl,
upland game birds, and vegetation. Marine mammals and salmon harvesting
is less common in the NPR-A; instead, they are harvested in nearshore
areas, such as Peard Bay, Elson Lagoon, and Kasegaluk Lagoon.\37\
---------------------------------------------------------------------------
\37\ Id. at 3-262.
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Subsistence harvesting is the cornerstone of the traditional
relationship of the I[ntilde]upiat people with their environment.
Residents of communities in and around the NPR-A rely on subsistence
harvests of plant and animal resources for nutrition and their
cultural, economic, and social well-being. Activities associated with
subsistence--processing; sharing; redistribution networks; cooperative
and individual hunting, fishing, whaling, and gathering; and ceremonial
activities--strengthen community and family social ties, reinforce
community and individual cultural identity, and provide a link between
contemporary Alaska Natives and their ancestors. These activities are
guided by traditional knowledge based on a long-standing relationship
with the environment.
Traditional I[ntilde]upiaq values remain strong on the North Slope
and include respect for nature, humility, love and respect for elders,
cooperation, hunting traditions, knowledge of language, and family and
kinship. These values are embedded within all facets of I[ntilde]upiaq
society, including subsistence hunting and harvesting traditions. The
ability to pass on these values through the continuation of traditional
subsistence activities in traditional places is critical to maintaining
I[ntilde]upiat cultural identity. Sharing is one of the core values of
I[ntilde]upiaq society and culture, which serves to maintain and
strengthen familial and social ties both within and between communities
on the North Slope. Traditional feasts such as Nalukataq (the spring
Whale Festival) and Kivgiq (the Messenger Feast) revolve around the
bringing together of communities and the distribution of subsistence
foods throughout the community and region. Extensive sharing networks
exist between North Slope communities, and between the North Slope and
other regions in Alaska. I[ntilde]upiaq people continue to identify
with the places of their ancestors and return to these places to hunt,
fish, camp, gather, and process wild foods. Subsistence activities help
maintain the relationship between I[ntilde]upiaq people and the land,
as do stories, I[ntilde]upiaq place names, trails and travel routes,
and landmarks. Thus, to the I[ntilde]upiat, protection of traditional
lands, waters, and the wild resources that inhabit them is essential to
[[Page 62031]]
maintaining cultural traditions, traditional knowledge, and
identity.\38\
---------------------------------------------------------------------------
\38\ Willow MDP SEIS at 303.
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Impacts on subsistence are occurring on the North Slope with
greater frequency as development expands across the region. Nuiqsut,
the community closest to current oil and gas development on the North
Slope, has experienced the most impacts. Subsistence impacts and
concerns have also been documented for Point Lay, Wainwright,
Utqiagvik, Atqasuk, and Anaktuvuk Pass. Many of these concerns are
related to effects of development, including seismic activity and oil
and gas-related research, pipelines, and traffic, on caribou and other
terrestrial species.
Overall, future infrastructure, oil and gas development, and other
activities in the NPR-A area could have lasting effects on cultural
practices, values, and beliefs. The potential impacts of development
could result in reduced harvests, changes in uses of traditional lands,
and decreased community participation in subsistence harvesting,
processing, consuming, sharing, and associated rituals and feasts.
Because of this, communities could experience a loss of cultural and
individual identity associated with subsistence, a loss of traditional
knowledge about the land, damaged social and kinship ties, and effects
on spirituality associated with degradation of the NPR-A.\39\
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\39\ 2020 NPR-A IAP Final EIS at 3-265-66, 3-280.
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The BLM solicits comments on this section. Specifically, BLM
welcomes comment from the regulated community including industry,
residents of communities in and around the NPR-A, and Alaskan natives
and indigenous Tribes who may benefit or bear costs from this proposed
rule.
E. Need for the Rule
The BLM is proposing this revision because the regulatory framework
governing the management and protection of surface resources and
Special Areas in the NPR-A needs updating. Conditions throughout the
Arctic have changed dramatically since 1977, when the BLM issued the
current regulations for management of surface resources and Special
Areas in the NPR-A. As discussed in greater detail in Section II.D, the
impacts of climate change on the NPR-A's natural environment and Native
communities are intensifying. Conditions are changing rapidly in the
Arctic, making it necessary and appropriate for the BLM to develop new
regulations that account for and respond to these changing conditions.
Thus, the proposed rule would direct the BLM to regularly address
changing conditions. Among other things, it would require the BLM to
conduct an evaluation of Special Areas at least once every 5 years and
update Special Area designations to include new resource values. It
also would require the BLM to account for any uncertainty concerning
the effects of proposed activities.
New and revised standards and procedures are also needed to ensure
that the BLM is fulfilling its statutory duties under the NPRPA, FLPMA,
and other authorities to the best of its ability. For example, the BLM
has a responsibility to ``provide for such conditions, restrictions,
and prohibitions as the Secretary deems necessary or appropriate to
mitigate reasonably foreseeable and significantly adverse effects [of
oil and gas activities] on the surface resources'' throughout the NPR-
A.'' 42 U.S.C. 6506a(b). The current regulations, however, provide
little detail on the standards and procedures the BLM should use to
implement these important requirements.
The BLM also has an obligation to ``assure the maximum protection
of . . . surface values'' within Special Areas ``to the extent
consistent with the requirements of [the NPRPA] for the exploration of
the reserve.'' 42 U.S.C. 6504(a). The proposed rule would improve upon
the standards and procedures that implement this requirement. For
example, the current regulations identify specific measures the BLM may
take to assure maximum protection but provide no further guidance on
the evaluation and selection of such measures.
In addition, the current regulations do not reflect the full
management regime for the NPR-A. This proposed rule would provide a
more comprehensive guide to managing the NPR-A. Currently, the
applicable legal standards and procedures are scattered throughout
several statutes, regulations, plans, and guidance documents. For
example, the existing regulations do not integrate with the use of
IAPs, which BLM has used either on a regional or area wide basis for
the NPR-A for over two decades. Although the BLM is not required to
plan for the use of the NPR-A, see 42 U.S.C. 6506a(c), it has chosen to
produce the IAP through a public process and has analyzed it in an
Environmental Impact Statement. The IAP allocates land uses in the NPR-
A and details oil and gas lease stipulations and infrastructure
restrictions for Special Areas. The overlay of a regulatory regime to
govern the NPR-A, including the development and use of IAPs, would
enhance consistency and certainty, particularly with respect to
protection of surface resources and Special Areas.
III. Section-by-Section Discussion
The proposed rule would change the section designations from the
current regulations to implement Office of the Federal Register
requirements. Some provisions of the existing regulations would not
change; we do not discuss those provisions here.
Section 2361.1 Purpose
Section 2361.0-1 would be redesignated to Sec. 2361.1. The
existing provision states that the purpose of the regulations is ``to
provide procedures for the protection and control of environmental,
fish and wildlife, and historical or scenic values'' in the NPR-A. As
proposed, Sec. 2361.1 would establish a two-part purpose for the rule
to more accurately and completely reflect the scope of the regulations.
The first purpose would be to provide standards and procedures to
implement 42 U.S.C. 6506a(b), which requires the Secretary to ensure
that ``[a]ctivities undertaken pursuant to this Act include or provide
for such conditions, restrictions, and prohibitions as [she] deems
necessary or appropriate to mitigate reasonably foreseeable and
significantly adverse effects on the surface resources of the [NPR-
A].''
The second purpose outlined in this section would be to provide
standards and procedures to implement 42 U.S.C. 6504(a), under which
any exploration in Special Areas ``shall be conducted in a manner which
will assure the maximum protection of such surface values to the extent
consistent with the requirements of this Act for the exploration of the
[NPR-A].'' The standards and procedures to implement these two
provisions would also fulfill BLM's mandate to take action necessary to
prevent unnecessary or undue degradation under FLPMA, 43 U.S.C.
1732(b).
Section 2361.0-2 Objectives
The existing Sec. 2361.0-2 states the objectives of the
regulations. We propose to remove this section because our proposed
revision of Sec. 2361.1 would make it redundant.
Section 2361.3 Authority
Section 2361.0-3 would be redesignated to Sec. 2361.3. The
existing provision lists the NPRPA as the statutory authority for the
regulations. We propose to add the Department of the Interior
Appropriations Act, Fiscal Year 1981 (Pub. L. 96-514), which
[[Page 62032]]
amended the NPRPA and instructed the Secretary to mitigate reasonably
foreseeable and significantly adverse effects on the surface resources
in the NPR-A.
Section 2361.4 Responsibility
Section 2361.0-4 would be redesignated to Sec. 2361.4. This
section would modify the existing statement that, under the NPRPA, the
BLM is responsible for managing surface resources in the NPR-A to add
that BLM is now also responsible for managing the subsurface mineral
resources in the NPR-A. It would also add that the BLM is responsible
for assuring maximum protection of Special Areas' significant resource
values. Paragraph (b) would be deleted because the U.S. Geological
Survey is no longer responsible for managing exploration in the NPR-A.
Secretarial Order 3071, 47 FR 4751 (Feb. 2, 1982); Secretarial Order
3087, 48 FR 8982-83 (Mar. 2, 1983).
Section 2361.5 Definitions
Section 2361.0-5 would be redesignated to Sec. 2361.5. In this
section, the BLM would update the definition for ``exploration'' to
ensure consistency with NPRPA's definition of ``petroleum.'' 42 U.S.C.
6501. The BLM would also update the definition of ``Special Areas'' for
consistency with other proposed changes to the regulations. Finally,
the BLM would also incorporate a new definition for ``Indigenous
Knowledge,'' consistent with the guidance set forth in the Memorandum
issued by the Council on Environmental Quality's Office of Science and
Technology Policy on November 30, 2022.\40\ New definitions would also
be added for ``Integrated Activity Plan,'' ``infrastructure,'' and
``significant resource value.''
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\40\ Council on Environmental Quality, Guidance for Federal
Departments and Agencies on Indigenous Knowledge (Nov. 30, 2022),
available at <a href="https://www.whitehouse.gov/wp-content/uploads/2022/12/OSTP-CEQ-IK-Guidance.pdf">https://www.whitehouse.gov/wp-content/uploads/2022/12/OSTP-CEQ-IK-Guidance.pdf</a>.
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Section 2361.6 Effect of Law
Section 2361.0-7 would be redesignated to Sec. 2361.6. The BLM is
proposing to update this section to conform to existing legal
authorities, including adding provisions to implement the Department of
the Interior Appropriations Act, Fiscal Year 1981, Public Law 96-514
(Dec. 12, 1980), 94 Stat. 2957, 2964, in revised paragraph (a), and the
Barrow Gas Field Transfer Act of 1984, Public Law 98-366 (July 17,
1984), 98 Stat. 468, 470, in new paragraph (b)(4).
Section 2361.7 Severability
This proposed new section would establish that if any provision of
part 2360 is invalidated, then all remaining provisions would remain in
effect. The various components of the proposed rule are distinct. For
example, many of the proposed provisions would simply update the
regulations to bring them more into line with the BLM's statutory
duties. Those updates would function independently of the rest of the
proposed rule. The procedural requirements in proposed Sec. 2361.10(b)
for protecting surface resources in the NPR-A also would stand alone,
as would the codification of existing Special Areas in Sec. 2361.20,
the procedural requirements in Sec. 2361.30, and other provisions.
Section 2361.10 Protection of Surface Resources
Section 2361.1 would be redesignated to Sec. 2361.10, and the
title would be changed from ``protection of the environment'' to
``protection of surface resources'' to more closely track with the
BLM's statutory authority under 42 U.S.C. 6506a(b), which directs the
BLM to ``provide for such conditions, restrictions, and prohibitions as
the Secretary deems necessary or appropriate to mitigate reasonably
foreseeable and significantly adverse effects on the surface resources
of the [NPR-A].''
The proposed rule would establish new standards and procedures for
managing and protecting surface resources in the NPR-A from the
reasonably foreseeable and significantly adverse effects of oil and gas
activities. In 1980, Congress authorized the Secretary to mitigate
those effects through ``necessary or appropriate'' ``conditions,
restrictions, and prohibitions.'' 42 U.S.C. 6506a(b). Existing
paragraph (a) requires the authorized officer to take action ``to
mitigate or avoid unnecessary surface damage and to minimize ecological
disturbance throughout the reserve to the extent consistent with the
requirements of the Act for the exploration of the reserve.'' We
propose to amend paragraph (a) to mirror the statutory language. As
amended, paragraph (a) also would provide further clarification by
recognizing that, in some circumstances, the BLM may delay or deny
proposed activities that would cause reasonably foreseeable and
significantly adverse effects on surface resources.
Existing paragraph (b) would be deleted. It concerns coordination
between the BLM and the U.S. Geological Survey, which is no longer
relevant because the Geological Survey is no longer responsible for
managing exploration in the NPR-A.
Paragraph (b) in the proposed rule would spell out new procedures
for protecting surface resources in the NPR-A. As explained above,
Congress assigned the BLM the duty to protect the surface resources in
the NPR-A, but BLM regulations do not fully explain the scope of that
duty. The proposed rule would fill that gap.
In paragraph (b)(1), the proposed rule would direct the BLM to
manage oil and gas activities in accordance with the IAP. In doing so,
the proposed rule would enshrine longstanding BLM practice into
regulations. As explained above, the NPR-A is exempt from FLPMA's
planning requirements. Nonetheless, since 1998, the BLM has prepared
several IAPs to primarily govern oil and gas activities in the NPR-A.
The IAP is a form of land use plan that ``addresses a narrower range of
multiple use management than a resource management plan.'' \41\ In the
BLM's experience, the IAP provides an invaluable means of evaluating
management options, engaging the public, and guiding decision-making,
consistent with the BLM's duties under NPRPA and the National
Environmental Policy Act. Accordingly, the proposed rule would require
the BLM to maintain an IAP, which would help guide BLM use
authorizations in the NPR-A but would give way to the regulations in
the event of a conflict.
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\41\ 2013 NPR-A IAP ROD at 17.
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Paragraph (b)(2) would require the BLM, in each decision concerning
oil and gas activity in the NPR-A, to adopt measures to mitigate the
reasonably foreseeable and significantly adverse effects on surface
resources, taking particular care with surface resources that support
subsistence. The BLM would do so by documenting for each decision its
consideration of effects and how those effects informed the choice of
mitigation measures. Paragraphs (b)(3) and (4) would specify that the
BLM's effects analysis would include any reasonably foreseeable
effects, including indirect effects (those that are ``later in time or
farther removed in distance''), cumulative effects (those ``that result
from the incremental effects of proposed activities when added to the
effects of other past, present, and reasonably foreseeable actions''),
and ``any uncertainty concerning the nature, scope, and duration of
potential effects.'' For example, if the BLM determined that a proposed
lease sale's effects on subsistence resources--when
[[Page 62033]]
added to the effects of other past, present, and reasonably foreseeable
actions--could be significantly adverse, then under this proposed
section, the BLM would need to adopt measures to mitigate those
effects.
Existing paragraphs (c) and (d) would be deleted. Existing
paragraph (c) requires the BLM to take maximum protection measures on
all actions within Special Areas and identify the boundaries of Special
Areas on maps. It also describes some requirements that may constitute
``maximum protection measures.'' Existing paragraph (d) concerns
designation of new Special Areas. This material would be addressed in
Sec. Sec. 2361.20, 2361.30, and 2361.40. Moving this material to those
new sections would provide clarification by focusing Sec. 2361.10 on
protection of surface resources throughout the NPR-A.
Proposed new paragraph (c) would clarify that for surface resources
in Special Areas, the BLM also would have to comply with the provisions
governing Special Areas in Sec. Sec. 2361.20 through 2361.60. Moving
the provisions concerning Special Areas to different sections makes
that cross-reference necessary.
Proposed new paragraph (d) would require the BLM to include in each
oil- and gas-related decision or authorization, ``such terms and
conditions that provide the Bureau with sufficient authority to fully
implement the requirements of this subpart.'' That provision would
ensure that the BLM incorporates into decision documents whatever
language is necessary to enable it to implement any final rule.
Existing paragraph (e)(1) provides that ``the authorized officer
may limit, restrict, or prohibit use of and access to lands within the
Reserve, including special areas.'' The existing rule conditions that
authority by requiring it to be exercised ``consistent with the
requirements of the Act and after consultation with appropriate
Federal, State, and local agencies and Native organizations.'' The
proposed rule would specify that the authorized officer has that
authority ``regardless of any existing authorization.'' That added
language would clarify that existing authorizations would not prevent
the BLM from limiting, restricting, or prohibiting access to the NPR-A
consistent with the requirements of the Act. The proposed rule would
retain the condition that exercises of that authority must be
consistent with the NPRPA, and it would add ``and applicable law'' to
clarify that the authorized officer cannot contradict other legal
requirements. Instead of requiring the authorized officer to consult
with ``Native organizations,'' the proposed rule would provide more
specificity by requiring consultation with federally recognized Tribes
and Alaska Native Claims Settlement Act corporations. Consistent with
the BLM's duty under NPRPA and ANILCA, paragraph (e)(1) would also be
amended to allow the authorized officer to limit, restrict, or prohibit
use of and access to the NPR-A to protect subsistence uses and
resources.
Existing paragraph (f) would be amended to recognize the breadth of
Federal laws that apply to the management and protection of historical,
cultural, and paleontological resources in the NPR-A.
Section 2361.20 Existing Special Areas
The existing regulations only identify the Colville River,
Teshekpuk Lake, and Utukok River Uplands Special Areas by name (43 CFR
2361.1(c)); they do not account for the Kasegaluk Lagoon and Peard Bay
Special Areas. Further, the current regulations do not identify or
describe the significant resource values associated with each Special
Area. Under the NPRPA, the BLM must assure maximum protection of each
of these values consistent with exploration of the Reserve. In pursuit
of that obligation, this new Sec. 2361.20 would incorporate all five
of the existing Special Areas into part 2360 and would identify the
significant subsistence, recreational, fish and wildlife, historical,
and scenic values that are associated with each of them. The proposed
rule would require any lands designated as a Special Area to continue
to be managed as such for the already-identified values and any
additional values identified through the process set forth in new Sec.
2361.30. The existing regulations (43 CFR 2361.1(c)) require the
boundaries of the Special Areas to be depicted on maps available for
public inspection in the BLM's Fairbanks District Office. New Sec.
2361.20 would specify that a map of each Special Area is available at
the Arctic District Office, which is now the BLM office that oversees
the NPR-A. The BLM would also publish and maintain copies of these maps
on its website.
The following briefly summarizes the existing Special Areas:
<bullet> Colville River Special Area: The Colville River Special
Area covers 2.44 million acres along the southeastern boundary of the
NPR-A. The Special Area encompasses the Colville River and two of its
main tributaries--the Kogosukruk and Kikiakrorak rivers--which
collectively provide ``one of the most significant regional habitats
for raptors in North America'' and ``the North Slope's single most
important area of raptor nesting habitat.'' \42\ Many other bird
species utilize the river corridors, including shorebirds, loons,
waterfowl, inland dwelling sea birds, and several unique trans-
Beringian migrant passerines.\43\ The Special Area also ``support[s]
the highest concentration of . . . moose on Alaska's North Slope,''
\44\ ``contains world-class paleontological deposits[,] and is an
important corridor for subsistence and recreational activities.'' \45\
Finally, the Special Area includes ``numerous sites from prehistoric
and historic era human activity.'' \46\
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\42\ 2013 NPR-A IAP Final EIS at 270, 355.
\43\ CRSA EA at 19.
\44\ 2013 NPR-A IAP Final EIS at 355.
\45\ 1998 Northeast NPR-A IAP Final EIS.
\46\ CRSA EA at 25.
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<bullet> Kasegaluk Lagoon Special Area: The Kasegaluk Lagoon
Special Area, which encompasses approximately 97,000 acres, borders the
Chukchi Sea in the northwestern corner of the NPR-A. It is ``rich in
wildlife, including migratory birds'' and has especially ``high values
for marine mammals.'' \47\ The Special Area also ``features tidal flats
that are rare on the North Slope.'' \48\ These natural resources
contribute to an ecosystem that is ``unique . . . for the arctic
coast.'' \49\ Subsistence activities take place in the lagoon, which
also ``offer[s] primitive recreation experiences, including kayak and
small boat paddling along the coast.'' \50\
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\47\ 2013 NPR-A IAP Final EIS at 17.
\48\ Id.
\49\ Id.
\50\ 2004 Northwest NPR-A IAP ROD at 4.
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<bullet> Peard Bay Special Area: The Peard Bay Special Area also
borders the Chukchi Sea along the northern boundary of the NPR-A. The
Special Area covers 107,000 acres and includes ``haul-out areas and
nearshore waters for marine mammals and a high use staging and
migration area for shorebirds and waterbirds.'' \51\
---------------------------------------------------------------------------
\51\ 2013 NPR-A IAP ROD at 4.
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<bullet> Teshekpuk Lake Special Area: The Teshekpuk Lake Special
Area includes 3.65 million acres in the northeastern corner of the NPR-
A. Teshekpuk Lake provides ``important nesting, staging, and molting
habitat for a large number of ducks, geese, and swans,'' ``prime
calving and insect-relief habitat'' for the Teshekpuk Caribou Herd, and
``overwintering habitat for fish.'' \52\ ``Of
[[Page 62034]]
particular sensitivity are lands nearest Teshekpuk Lake that are the
most heavily used by calving caribou and molting geese. . . .'' \53\
The Special Areas ``is of special importance to subsistence users
because of the caribou and fish resources in the area and long-standing
subsistence use of the area.'' \54\ Additionally, the Special Area
includes the Pik Dunes--``an unusual geologic feature'' that ``provide
(1) insect-relief habitat for caribou, (2) habitat for several uncommon
plant species, and (3) data critical to understanding major climatic
fluctuations over the last 12,000 years.'' \55\
---------------------------------------------------------------------------
\52\ 43 FR 28723; BLM, Northeast NPR-A Final Amended IAP/EIS 3-
29 (Jan. 2005), available at <a href="https://web.archive.org/web/20060303123155/http://www.ak.blm.gov/nenpraeis/FinalAmendedIAPEIS/Volume%201/Chapter%203%20Affected%20Environment.pdf">https://web.archive.org/web/20060303123155/http://www.ak.blm.gov/nenpraeis/FinalAmendedIAPEIS/Volume%201/Chapter%203%20Affected%20Environment.pdf</a>; 2022 NPR-A IAP
ROD at 5.
\53\ 2013 NPR-A IAP ROD at 20.
\54\ BLM, Northeast NPR-A IAP/EIS ROD (Oct. 1998), available at
<a href="https://web.archive.org/web/20001210191000/http:/aurora.ak.blm.gov/npra/final/html/rodtitle.html">https://web.archive.org/web/20001210191000/http:/aurora.ak.blm.gov/npra/final/html/rodtitle.html</a>.
\55\ Northeast National Petroleum Reserve Alaska Draft IAP/EIS,
62 FR 65440 (Dec. 12, 1997); Northeast NPR-A Final Amended IAP/EIS
at 2-7.
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<bullet> Utukok River Uplands Special Area: The Utukok River
Uplands encompasses 7.1 million acres in the southwestern corner of the
NPR-A. The Special Area includes ``prime calving and insect-relief
habitat'' and ``the most intensely used summer movement area'' for the
Western Arctic Caribou Herd.\56\ ``This large herd disperses widely in
the winter, wandering within reach of subsistence hunters from over
forty villages in northwest Alaska.'' \57\ The Special Area also
includes ``grizzly bear habitat'' and ``important wilderness
characteristics.'' \58\
---------------------------------------------------------------------------
\56\ 2013 NPR-A IAP ROD at 21; 2022 NPR-A IAP ROD at 5.
\57\ 2013 NPR-A IAP ROD at 22.
\58\ 1998 Northeast NPR-A IAP Final EIS; 2013 NPR-A IAP ROD at
22.
---------------------------------------------------------------------------
Section 2361.30 Special Areas Designation and Amendment Process
While the existing regulations anticipate that the Secretary may
identify new Special Areas, they do not specify procedures for
designating and amending Special Areas. In the past, the BLM has
typically designated Special Areas, and received Special Area
recommendations from the public and stakeholders, through the IAP
revision and amendment process. Enumerating procedures for designating
and amending Special Areas in the regulations would provide clarity for
stakeholders and ensure that the BLM fulfills its statutory obligation
to assure maximum protection of Special Areas' significant resource
values.
This proposed new section would, for the first time, provide
standards and procedures for designating and amending Special Areas.
Paragraph (a) would require the BLM, at least once every 5 years, to
evaluate lands in the NPR-A for significant resource values and
designate new Special Areas or update existing Special Areas by
expanding their boundaries, recognizing the presence of additional
significant resource values, or requiring additional measures to assure
maximum protection of significant resource values. The BLM believes
that a 5-year timeframe is reasonable considering how rapidly
conditions across the Arctic are changing; it is also consistent with
the agency's timeframe for similar land use planning evaluations.\59\
Paragraph (a)(2) would allow, but not require, the BLM to conduct this
evaluation through the IAP amendment process. Paragraph (a)(3) would
require the BLM to rely on the best available scientific information,
including Indigenous Knowledge, and the best available information
concerning subsistence uses and resources. Paragraph (a)(4) would
require the BLM to provide meaningful opportunities for public
participation in the evaluation process, including review and comment
periods and, as appropriate, public meetings.
---------------------------------------------------------------------------
\59\ See BLM Land Use Planning Handbook H-1601-1 34 (Mar. 2005)
(directing the BLM to evaluate land use plans ``at a minimum every
five years''), available at <a href="https://www.ntc.blm.gov/krc/uploads/360/4_BLM%20Planning%20Handbook%20H-1601-1.pdf">https://www.ntc.blm.gov/krc/uploads/360/4_BLM%20Planning%20Handbook%20H-1601-1.pdf</a>.
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Existing Sec. 2361.1(d) concerns the submission, content, and
public review of recommendations for additional Special Areas. Proposed
paragraph (a)(4) would retain the basic contours of that provision but
provide additional specificity. It would allow the public to
participate in the evaluation process, including by recommending new
Special Areas, new significant resource values for existing Special
Areas, and measures to assure maximum protection of Special Areas'
significant resource values. The proposed rule would require the BLM to
evaluate and respond to such recommendations. Similar to existing Sec.
2361.1, proposed paragraph (a)(4) would specify that Special Area
recommendations should describe the size and location of the lands,
significant resource values, and measures necessary to assure maximum
protection of those values.
Paragraph (a)(5) would allow the authorized officer to implement
interim measures to assure maximum protection of significant resource
values in lands under consideration for designation as a Special Area.
This provision would assist the BLM in fulfilling its statutory duty to
protect Special Areas.
Paragraph (a)(6) would require that the BLM base decisions to
designate Special Areas solely on whether significant resource values
are present and would prohibit the BLM from considering the existence
of measures to protect or otherwise administer those values. For
example, if lands not within a Special Area contained important caribou
calving habitat and those lands were already subject to certain
protections under the IAP, the BLM would not be permitted to consider
those protections during the decision-making process for the proposed
designation or update. This change is needed to align the regulations
with the NPRPA, which authorizes the Secretary to designate Special
Areas based on the presence of ``any significant subsistence,
recreational, fish and wildlife, or historical or scenic value . . .
.'' 42 U.S.C. 6504(a).
Paragraph (a)(7) would require the BLM, when designating a Special
Area or recognizing the presence of additional significant resource
values in an existing Special Area, to adopt measures to assure maximum
protection of significant resource values. That provision mirrors the
BLM's statutory responsibility under the NPRPA. 42 U.S.C. 6504(a).
Paragraph (a)(7) would provide needed clarification by specifying that
those measures would supersede any inconsistent provisions in the IAP.
Paragraph (a)(8) would incorporate the requirement of existing
Sec. 2361.1(c) that the BLM publish in the Federal Register a legal
description of any new Special Area. The proposed rule also would
require the BLM to publish in the Federal Register a summary of the
significant resource values supporting the Special Area designation.
Rather than requiring publication in local newspapers as the current
regulations require, the proposed rule would require the BLM to
maintain maps of the Special Areas on its website. We believe those
proposals would provide more effective public notice.
Section 2361.30(b) would establish a framework for removing lands
from Special Area designations. Because Congress identified the Utukok
River Uplands and Teshekpuk Lake Special Areas in the NPRPA and
required them to be managed to protect surface resources, the BLM
cannot remove lands from those Special Area designations absent
statutory authorization. See Public Law 94-258, sec. 104(b), 90 Stat.
304 (1976). For other Special Areas, the proposed rule would allow the
BLM to remove lands from a Special Area designation only when the
significant resource values that supported the designation are no
longer present (e.g., if important wildlife habitat that supported the
designation was no longer present). That provision is consistent
[[Page 62035]]
with the BLM's statutory duty to ``assure the maximum protection of
such surface values consistent with the requirements of [the NPRPA] for
the exploration of the reserve.'' Id.
Before removing lands from a Special Area designation, paragraph
(b) would require the BLM to provide the public with the opportunity to
review and comment on its proposed decision and consult with federally
recognized Tribes and Alaska Native Claims Settlement Act corporations.
Finally, the proposed rule would require the BLM to document its
consideration of those comments. Those requirements would assure public
participation in the de-designation process.
Section 2361.40 Management of Oil and Gas Activities in Special Areas
As noted above, the proposed rule would enhance the specificity of
the current regulations on the mechanisms for assuring maximum
protection of significant resource values in Special Areas. The current
regulations paraphrase the maximum protection requirement of the NPRPA
and provide examples of measures that the BLM could potentially take to
assure maximum protection. See 43 CFR 2361.1(c). This proposed new
section would establish new standards and procedures for achieving
maximum protection of Special Areas' significant resource values, with
a specific focus on addressing the impacts of oil and gas activities.
Of note, this section would affirmatively establish that assuring
maximum protection of significant resource values is the management
priority for Special Areas. Under proposed paragraph (a), the BLM would
need to comply with this standard and adopt maximum protection measures
for each significant resource value associated with a Special Area.
Paragraph (b) would require the BLM take such steps to avoid the
adverse effects of proposed oil and gas activities on the significant
resource values of Special Areas, including by conditioning, delaying
action on, or denying proposals for activities.
Paragraph (c) of this section would require oil and gas leasing and
new infrastructure to conform to the land use allocations and
restrictions identified on maps 2 and 4 of the 2022 IAP ROD that are
published along with the final rule, unless the BLM makes revisions in
accordance with Sec. 2361.30 of these regulations. Map 2 shows the
areas of the NPR-A that are open and closed to oil and gas leasing. The
map reflects that approximately 11.8 million acres are open to leasing
subject to the terms and conditions detailed in the IAP, while
approximately 11 million acres are closed, including most of the
Teshekpuk Lake and Utukok River Uplands Special Areas. The map also
shows areas that are open to leasing, but subject to no surface
occupancy and areas that are outside the BLM's subsurface authority.
Map 4 shows the areas of the NPR-A that are available and
unavailable for new infrastructure. The map shows that new
infrastructure is prohibited on approximately 8.3 million acres of the
NPR-A, limited to ``essential'' infrastructure on approximately 3.3
million acres, and permitted on approximately 10.8 million acres. The
BLM is considering including in the final rule the following definition
for the term ``essential,'' which resembles provisions of Lease
Stipulation K-12 from the 2022 IAP ROD: ``Essential means the proposed
infrastructure is necessary for development and production on a valid
existing onshore or offshore lease and no other feasible and prudent
option is available.'' The BLM requests feedback on this approach, as
well as any additional recommendations on defining this term.
The restrictions identified on Maps 2 and 4 that would apply to new
oil and gas leases and infrastructure are detailed in the 2022 IAP ROD
and summarized in the following table.\60\
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\60\ 2022 NPR-A IAP ROD at A-6 to A-21.
------------------------------------------------------------------------
Stipulation Objective
------------------------------------------------------------------------
K-1--River Setbacks............... Minimize the disruption of natural
flow patterns and changes to water
quality; the loss of spawning,
rearing, and over-wintering habitat
for fish; and impacts to
subsistence cabins and campsites,
among other purposes.
K-2--Deep Water Lakes............. Minimize the disruption of natural
flow patterns and changes to water
quality; the loss of spawning,
rearing or over wintering habitat
for fish; and the disruption of
subsistence activities, among other
purposes.
K-4--Kogru River, Dease Inlet, Protect fish and wildlife habitat;
Admiralty Bay, Elson Lagoon, preserve air and water quality; and
Peard Bay, Wainwright Inlet/Kuk minimize impacts to subsistence
River, and Kasegaluk Lagoon, and activities and historic travel
their associated islands. routes on the major coastal
waterbodies.
K-5--Coastal Setback Areas........ Protect coastal waters and their
value as fish and wildlife habitat;
minimize hindrance or alteration of
caribou movement within caribou
coastal insect-relief areas; and
prevent impacts to subsistence
resources and activities, among
other purposes.
K-6--Goose Molting Area........... Minimize disturbance to molting
geese and loss of goose molting
habitat in and around lakes in the
Goose Molting Area.
K-8--Brant Survey Area............ Minimize the loss or alteration of
habitat for, or disturbance of,
nesting and brood rearing brant in
the Brant Survey Area.
K-9--Teshekpuk Lake Caribou Minimize disturbance and hindrance
Habitat Area. of caribou, or alteration of
caribou movements through portions
the Teshekpuk Lake Caribou Habitat
Area that are essential for all
season use, including calving and
rearing, insect-relief, and
migration.
K-10--Teshekpuk Lake Caribou Minimize disturbance and hindrance
Movement Corridor. of caribou, or alteration of
caribou movements (that are
essential for all season use,
including calving and rearing,
insect-relief, and migration) in
the area extending from the eastern
shore of Teshekpuk Lake eastward to
the Kogru River.
K-11--Southern Caribou Calving Minimize disturbance and hindrance
Area. of caribou, or alteration of
caribou movements (that are
essential for all season use,
including calving and post calving,
and insect-relief) in the area
south/southeast of Teshekpuk Lake.
K-12--Colville River Special Area. Prevent or minimize loss of raptor
foraging habitat.
K-13--Pik Dunes................... Retain unique qualities of the Pik
Dunes, including geologic and
scenic uniqueness, insect-relief
habitat for caribou, and habitat
for several uncommon plant species.
[[Page 62036]]
K-14--Utukok River Uplands Special Minimize disturbance and hindrance
Area. of caribou, or alteration of
caribou movements through the
Utukok River Uplands Special Area
that are essential for all season
use, including calving and rearing,
insect-relief, and migration.
------------------------------------------------------------------------
Several of the restrictions utilize the term ``permanent oil and
gas facilities,'' which is defined on page A-3 of the 2022 IAP ROD to
mean:
Permanent Facilities include production facilities, pipelines,
roads, airstrips, production pads, docks and other bottom-founded
structures, seawater-treatment plants, and other structures
associated with an oil and gas operation that occupy land for more
than one winter season; also included are material sites such as
sand and gravel, and ``temporary platforms'' if those platforms are
used for production rather than exploration. Exploration wellheads
and seasonal facilities such as ice roads and ice pads are excluded,
even when the pads are designed for use in successive winters. This
definition does not include over-summering ice pads for exploration
purposes.
The BLM is considering incorporating this definition into the rule
and requests feedback on this approach.
The purpose of requiring leasing and infrastructure in Special
Areas to conform to IAP maps 2 and 4 is to codify the existing
protections and restrictions from the 2022 IAP ROD. As explained above,
the BLM developed that land use plan through a lengthy public planning
process involving all stakeholders, which stretches back to the
development of the 2013 IAP ROD. The 2022 IAP ROD, which is based in
large part on the framework set forth in the 2013 IAP ROD, incorporates
aspects of the 2020 IAP ROD, and reflects now-settled expectations
about the use of the NPR-A. It also reflects what the BLM views as the
floor of protections for the NPR-A that grew out of the public planning
process. By incorporating the two maps into any final rule, the BLM
intends to incorporate the land use allocations, restrictions, and
stipulations from the 2022 IAP ROD into the rule without reprinting a
lengthy text. We seek public comment in particular on whether this
approach accomplishes that goal effectively and efficiently. Do the
maps convey sufficient information? Are there additional definitions
that should be included in the rule? Is there a better way to
accomplish our goal?
Paragraph (c) also would establish a presumption against leasing
and new infrastructure on lands in Special Areas that are allocated as
available for those activities. That presumption could be overcome if
specific information is available to the BLM that clearly demonstrates
that those activities can be conducted with no or minimal adverse
effects on the significant resource values of the Special Area. The
intensive process that led to the IAP resulted in a comprehensive plan
for protection of the Special Areas in the NPR-A. To fulfill the BLM's
statutory duty to assure maximum protection for those areas'
significant resource values, the BLM believes that plan should be
treated as a regulatory floor, and additional activities should only be
allowed when maximum protection is assured.
The proposed definition of ``infrastructure'' in Sec. 2361.5(g)
would exclude ``exploratory wells that are drilled in a single season;
infrastructure in support of science and public safety; and
construction, renovation, or replacement of facilities on existing
gravel pads at previously disturbed sites where the facilities will
promote safety and environmental protection.'' These exceptions were
specifically analyzed and adopted in the 2022 IAP ROD. Proposed Sec.
2361.40(d) would establish three additional exceptions to the oil and
gas leasing and new infrastructure prohibitions in paragraph (c). The
first exception would permit leasing and infrastructure solely to
address drainage of Federal oil and gas resources. Drainage occurs
``when a well that is drilled or is in production adjacent to Federal
or Indian leases or unleased lands is potentially draining Federal or
Indian oil and gas resources.'' BLM MS-3160. Surface disturbing
activities would be prohibited on any lease tract issued for this
purpose. The exception for drainage of Federal oil and gas resources is
included because the regulations expressly provide for leasing of
tracts that are subject to drainage in order to prevent loss of United
States oil and gas resources and potential royalties. See 43 CFR
3130.3. No-surface-occupancy leases are an option the BLM may elect to
use when the surface management agency has determined that surface oil
and gas facilities and operations would pose an unacceptable risk to
the surface resources. The second exception would permit the
construction of new infrastructure, including roads, transmission
lines, and pipelines, that would primarily benefit communities in and
around the NPR-A or would support subsistence activities. The BLM would
still need to adopt measures to assure maximum protection of any
significant resource values affected by that infrastructure. We propose
to include that exception because communities in and around the NPR-A
must have some infrastructure to survive and thrive. The third
exception would allow the BLM to approve new infrastructure if
essential to support exploration or development of a valid existing
lease and no practicable alternatives exist that would have less
adverse impact on significant resource values of the Special Area. That
exception is necessary to accommodate the rights of current
leaseholders.
Proposed paragraph (e) would require the BLM to document and
consider any uncertainty regarding potential adverse effects on Special
Areas and ensure that its actions account for such uncertainty. That
provision will help fulfill the BLM's statutory mandate to assure
maximum protection for Special Areas' significant resource values.
Proposed paragraph (f) would require the BLM to prepare a Statement
of Adverse Effect whenever it cannot avoid adverse effects on a Special
Area. In each statement, the BLM would need to describe the significant
resource values that may be affected; the nature, scope, and duration
of the effects; measures the BLM evaluated to avoid those effects; a
justification for not requiring those measures; and measures it would
require to minimize and mitigate the adverse effects on significant
resource values. The BLM will require mitigation of adverse effects on
significant resource values of Special Areas that cannot be avoided or
minimized. Measures the BLM may require include compensatory
mitigation. Such measures will be developed, evaluated, and, as
necessary, adopted in project-specific analyses. Proposed paragraphs
(g) and (h) would require the BLM to provide the public with an
opportunity to review and comment on any Statement of Adverse Effect
and consult with federally recognized Tribes and Alaska Native Claims
Settlement Act corporations that have ties to the area.
Finally, proposed paragraph (i) would require the BLM to include in
each oil- and gas-related decision or authorization ``terms and
conditions that provide the Bureau with sufficient authority to fully
implement the requirements of this section.'' That
[[Page 62037]]
provision would ensure that the BLM incorporates into decision
documents the necessary language to implement any final rule.
The BLM seeks feedback on whether this proposed rule would ``assure
the maximum protection'' of significant resource values in Special
Areas ``to the extent consistent with the requirements of [the NPRPA]
for the exploration of the reserve.'' See 42 U.S.C. 6504(a).
Section 2361.50 Management of Subsistence Uses Within Special Areas
The BLM recognizes the overriding importance of subsistence
resources to communities in and around the NPR-A. There are over 40
communities that use the NPR-A or the resources it supports for
subsistence purposes, including six with significant connections:
Anaktuvuk Pass, Atqasuk, Nuiqsut, Point Lay, Utqiagvik, and
Wainwright.\61\ All of these communities ``rely on . . . subsistence
resources for their physical, traditional, and social existence,'' and
many of these resources, including caribou, fish, and waterfowl, are
concentrated in Special Areas.\62\
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\61\ 2022 NPR-A IAP DNA at C-3-4.
\62\ 2022 NPR-A IAP ROD at 11.
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Accordingly, this new section would require the BLM to manage
Special Areas to protect and support fish and wildlife and their
habitats and the associated subsistence use of those areas by rural
residents as defined in 50 CFR 100.4, the Department of the Interior's
subsistence management regulations for public lands in Alaska.
Additionally, this section would require the BLM to provide appropriate
access to and within Special Areas for subsistence purposes while still
assuring maximum protection of the significant resource values of the
Special Areas.
Section 2361.60 Co-Stewardship Opportunities in Special Areas
This proposed new section would encourage the BLM to explore co-
stewardship opportunities for Special Areas, including co-management,
collaborative and cooperative management, and Tribally led stewardship.
This provision would advance the Federal government's commitment to
strengthening the role of Tribal governments in Federal land
management. (Presidential Memorandum on Tribal Consultation and
Strengthening Nation-to-Nation Relationships, January 26, 2021; Joint
Secretarial Order on Fulfilling the Trust Responsibility to Indian
Tribes in the Stewardship of Federal Lands and Waters, Order No. 3403,
November 15, 2021.)
Section 2361.70 Use Authorizations
Section 2361.2 would be redesignated to Sec. 2361.70. Existing
paragraph (a) states that all use authorizations require approval from
the authorized officer ``[e]xcept for petroleum exploration which has
been authorized by the Act.'' The proposed rule would omit that
exception. The NPRPA of 1976 authorized the Federal government to
conduct exploration activities; those activities did not require
approval by an authorized officer. Since the 1980 amendments initiated
a competitive oil and gas leasing program, all oil and gas activities
are conducted by oil and gas companies and require authorization from a
BLM authorized officer.
No substantive changes are proposed to Sec. 2361.70(b). The BLM
would modify Sec. 2361.70(c) for clarity purposes, and would update
Sec. 2361.70(d) to recognize its duties to protect surfaces resources
and assure maximum protection of Special Areas' significant resource
values in the NPR-A.
Section 2361.80 Unauthorized Use and Occupancy
Section 2361.3 would be redesignated to Sec. 2361.80. No
substantive changes would be made to this section.
IV. Procedural Matters
Regulatory Planning and Review (Executive Orders (E.O.) 12866, as
Amended by E.O 14094, and 13563)
E.O. 12866, as amended by E.O. 14094, provides that the Office of
Information and Regulatory Affairs (OIRA) within the OMB will review
all significant regulatory actions. OIRA has determined that this
proposed rule is significant.
E.O. 13563 reaffirms the principles of E.O. 12866 while calling for
improvements in the Nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The Executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. E.O. 13563 emphasizes further
that regulations must be based on the best available science and that
the rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this proposed rule in a manner
consistent with these requirements.
Regulatory Flexibility Act
This proposed rule will not have a significant economic effect on a
substantial number of small entities under the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.). The BLM is not required to prepare an
Initial Regulatory Flexibility Analysis with this proposed rule. The
BLM welcomes public comments on the impact of this proposed rule on
small businesses.
The Small Business Administration (SBA) has developed size
standards to carry out the purposes of the Regulatory Flexibility Act,
as amended by the Small Business Regulatory Enforcement Fairness Act.
The size standards can be found in 13 CFR 121.201. For a specific
industry identified by the North American Industry Classification
System (NAICS), small entities are defined by the SBA as an individual,
limited partnership, or small company considered at ``arm's length''
from the control of any parent company, which meet certain size
standards.
The proposed rule is most likely to affect business currently
operating in the oil and gas sector in the NPR-A. There are eight
active lessees in NPR-A. SBA size standards identify small business in
the crude petroleum extraction (NAICS 211120) and natural gas
extraction (NAICS 211130) industries to be those with 1,250 or fewer
employees. Some of the eight active lessees meet the SBA criteria for
small businesses, which is less than a substantial number of small
entities potentially affected. Further, the proposed rule will not
affect existing leases and therefore would not have a significant
economic impact on small businesses holding these leases.
Unfunded Mandates Reform Act (UMRA)
The proposed rule would not have a significant or unique effect on
State, local, or Tribal governments or the private sector. The proposed
rule contains no requirements that would apply to State, local, or
Tribal governments. The costs that the proposed rule would impose on
the private sector are below the monetary threshold established at 2
U.S.C. 1532(a). A statement containing the information required by the
Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1531 et seq.) is
therefore not required for the proposed rule. This proposed rule is
also not subject to the requirements of section 203 of UMRA because it
contains no regulatory requirements that might significantly or
uniquely affect small governments, because it contains no requirements
that apply to such
[[Page 62038]]
governments, nor does it impose obligations upon them.
Takings (E.O. 12630)
This proposed rule would not affect a taking of private property or
otherwise having taking implications under E.O. 12630, as it recognizes
and is consistent with valid existing rights, including oil and gas
leases. This proposed rule would revise the BLM's current management
framework for surface resources and Special Areas in the NPR-A. The BLM
has not substantially updated this framework since the early 1980s. A
takings implication assessment is not required.
Federalism (E.O. 13132)
Under the criteria in section 1 of Executive Order 13132, this
proposed rule does not have sufficient federalism implications to
warrant the preparation of a federalism summary impact statement. A
federalism impact statement is not required. We welcome public comments
on the impact this proposed rule could have on the State of Alaska.
The proposed rule would not have a substantial direct effect on the
States, on the relationship between the Federal Government and the
States, or on the distribution of power and responsibilities among the
levels of government. It would not apply to States or local governments
or State or local governmental entities. The proposed rule would affect
the relationship between operators, lessees, and the BLM, but it does
not directly impact the States. Therefore, in accordance with Executive
Order 13132, the BLM has determined that this proposed rule does not
have sufficient federalism implications to warrant preparation of a
Federalism Assessment.
Civil Justice Reform (E.O. 12988)
This proposed rule complies with the requirements of E.O. 12988.
More specifically, this proposed rule meets the criteria of section
3(a), which requires agencies to review all regulations to eliminate
errors and ambiguity and to write all regulations to minimize
litigation. This proposed rule also meets the criteria of section
3(b)(2), which requires agencies to write all regulations in clear
language with clear legal standards.
Consultation and Coordination With Indian Tribal Governments (E.O.
13175 and Departmental Policy)
The Department strives to strengthen its government-to-government
relationship with Indian Tribes through a commitment to consultation
with Indian Tribes and recognition of their right to self-governance
and Tribal sovereignty.
The BLM evaluated this proposed rule under the Department's
consultation policy and under the criteria in E.O. Order 13175 to
identify possible effects of the rule on federally recognized Indian
Tribes. Since the BLM is responsible for balancing the reserve's oil
and gas resources with the protection of surface resources in the NPR-
A, the proposed rule may have significance to Alaska Native Tribes and
Alaska Native Claims Settlement Corporations.
On August 25, 2023, the BLM sent a letter to each federally
registered Alaska Tribe and Alaska Native Corporation informing them of
the rulemaking effort. The letter recognized the unique and vital input
of Alaska Natives and offered opportunities for participation
throughout the rulemaking process. The BLM will continue to engage in
outreach efforts to ensure Alaska Natives are advised of the mechanisms
by which they can participate, including opportunities for individual
government-to-government consultation regarding the proposed rule.
Paperwork Reduction Act
The Paperwork Reduction Act (PRA) (44 U.S.C. 3501-3521) generally
provides that an agency may not conduct or sponsor, and notwithstanding
any other provision of law, a person is not required to respond to, a
collection of information unless it displays a currently valid OMB
control number. Collections of information include requests and
requirements that an individual, partnership, or corporation obtain
information, and report it to a Federal agency. See 44 U.S.C. 3502(3);
5 CFR 1320.3(c) and (k).
This proposed rule contains an information collection requirement
that is subject to review by OMB under the PRA. This information
collection is located in Sec. 2361.30(a)(4). One of the key principles
of the proposed rule is the inclusion of stakeholder and public notice
and participation in the designation and removal of lands to be
included in a Special Area. To help ensure that the BLM receives the
information needed to inform its decision to include lands in a Special
Area, Sec. 2361.30(a)(4) includes a list of criteria that should be
addressed when a member of the public recommends lands for such a
designation. This information includes the following:
<bullet> The size and location of the recommended lands;
<bullet> The significant subsistence, recreational, fish and
wildlife, historical, or scenic resource values that are present within
or supported by the recommended lands;
<bullet> Measures that may be necessary to assure maximum
protection of those values; and
<bullet> Any other pertinent information.
The BLM has submitted a request to OMB for this information
collection requirement under the requirements of 5 CFR 1320.11,
Clearance of collections of information in proposed rules. The
estimated burden associated with this information-collection is
outlined as follows.
OMB Control Number: 1004-XXXX.
Title of Collection: Management and Protection of the National
Petroleum Reserve in Alaska--Recommendations for Special Reserve Areas
(43 CFR 2361.30).
Form Number: None.
Type of Review: New collection (Request for new OMB Control
Number).
Respondents/Affected Public: Persons who wish to recommend lands to
be designated as a SA in the NPR-A.
Respondent's Obligation: Voluntary.
Frequency of Collection: On occasion; at least once every 5 years.
Number of Respondents: 100.
Annual Responses: 100.
Estimated Average Response time: 15 hours.
Annual Burden Hours: 1,500.
Annual Burden Cost: None. If you want to comment on the
information-collection requirements of this proposed rule, please send
your comments and suggestions on this information collection by the
date indicated in the DATES and ADDRESSES sections as previously
described.
National Environmental Policy Act (NEPA)
This proposed rule meets the criteria set forth at 43 CFR 46.210(i)
for a Departmental categorical exclusion in that this proposed rule is
``of an administrative, financial, legal, technical, or procedural
nature.'' They do not involve any of the extraordinary circumstances
listed in 43 CFR 46.215.
Effects on the Energy Supply (E.O. 13211)
Under Executive Order 13211, agencies are required to prepare and
submit to OMB a Statement of Energy Effects for significant energy
actions. This statement is to include a detailed statement of ``any
adverse effects on energy supply, distribution, or use (including a
shortfall in supply, price increases, and increase use of foreign
supplies)'' for the action and reasonable alternatives and their
effects.
Section 4(b) of Executive Order 13211 defines a ``significant
energy action'' as
[[Page 62039]]
``any action by an agency (normally published in the Federal Register)
that promulgates or is expected to lead to the promulgation of a final
rule or regulation, including notices of inquiry, advance notices of
proposed rulemaking, and notices of proposed rulemaking: (1)(i) that is
a significant regulatory action under E.O. 12866 or any successor
order, and (ii) is likely to have a significant adverse effect on the
supply, distribution, or use of energy; or (2) that is designated by
OIRA as a significant energy action.''
This proposed rule would not have a significant effect on the
Nation's energy supply. It would restate existing statutory standards
and establish a procedural framework for ensuring that the BLM meets
those standards. It also would codify land use restrictions that
already are legally binding in the 2022 IAP ROD. Further, the proposed
rule would presume, in proposed Sec. 2361.40(c), that oil and gas
leasing or infrastructure on lands allocated as available for such
activities ``should not be permitted unless specific information
available to the Bureau clearly demonstrates that those activities can
be conducted with no or minimal adverse effects on significant resource
values.'' That presumption merely implements the BLM's existing
statutory duty to assure maximum protection of the significant resource
values in Special Areas. 42 U.S.C. 6504(a). Therefore, the proposed
rule would not change the supply, distribution, or use of energy. The
BLM welcomes public comments on the impact of this proposed rule on
future energy production.
Clarity of This Regulation (E.O.s 12866, 12988, and 13563)
We are required by E.O.s 12866 (section 1(b)(12)), 12988 (section
3(b)(1)(B)), and 13563 (section 1(a)), and by the Presidential
Memorandum of June 1, 1988, to write all rules in plain language. This
means that each rule must:
(a) Be logically organized;
(b) Use the active voice to address readers directly;
(c) Use common, everyday words and clear language rather than
jargon;
(d) Be divided into short sections and sentences; and
(e) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in the ADDRESSES section. To
better help the BLM revise the proposed rule, your comments should be
as specific as possible. For example, you should tell us the numbers of
the sections or paragraphs that you find unclear, which sections or
sentences are too long, the sections where you feel lists or tables
would be useful, etc.
Laura Daniel-Davis,
Principal Deputy Assistant Secretary, Land and Minerals Management.
List of Subjects in 43 CFR Part 2360
Alaska, Oil and gas activity, Protection of surface resources,
Tribes, Special Areas.
0
For the reasons set out in the preamble, the Bureau of Land Management
proposes to revise 43 CFR part 2360 as follows:
PART 2360--NATIONAL PETROLEUM RESERVE IN ALASKA
Subpart 2361--Management and Protection of the National Petroleum
Reserve in Alaska
Sec.
2361.1 Purpose.
2361.3 Authority.
2361.4 Responsibility.
2361.5 Definitions.
2361.6 Effect of law.
2361.7 Severability.
2361.10 Protection of surface resources.
2361.20 Existing Special Areas.
2361.30 Special Areas designation and amendment process.
2361.40 Management of oil and gas activities in Special Areas.
2361.50 Management of subsistence uses within Special Areas.
2361.60 Co-stewardship opportunities in Special Areas.
2361.70 Use authorizations.
2361.80 Unauthorized use and occupancy.
Subpart 2362 [Reserved]
Authority: 42 U.S.C. 6501 et seq. and 43 U.S.C. 1701 et seq.
Sec. 2361.1 Purpose.
The purpose of the regulations in this subpart is to provide
procedures for protection and control of the environmental, fish and
wildlife, and historical and scenic values of the National Petroleum
Reserve in Alaska, including mitigating the significantly adverse
effects of oil and gas activities on the surface resources of the
Reserve and assuring maximum protection of significant resource values
in Special Areas pursuant to and consistent with the provisions of the
Naval Petroleum Reserves Production Act of 1976 (90 Stat. 303; 42
U.S.C. 6501 et seq.), Alaska National Interest Lands Conservation Act
(94 Stat. 2371, 16 U.S.C. 3101 et seq.), and other applicable
authorities.
Sec. 2361.3 Authority.
The statutory authority for these regulations is the Naval
Petroleum Reserves Production Act of 1976, as amended by the Department
of the Interior Appropriations Act, Fiscal Year 1981 (Pub. L. 96-514).
Sec. 2361.4 Responsibility.
The Bureau of Land Management is responsible for the surface and
subsurface management of the Reserve, including protecting surface
resources from environmental degradation and assuring maximum
protection of significant resource values in Special Areas. The Act
authorizes the Bureau to prepare rules and regulations necessary to
carry out surface management and protection duties.
Sec. 2361.5 Definitions.
As used in this subpart, the term:
Act means the Naval Petroleum Reserves Production Act of 1976 (as
amended and codified at 42 U.S.C. 6501-6508).
Authorized officer means any employee of the Bureau of Land
Management who has been delegated the authority to perform the duties
of this subpart.
Bureau means the Bureau of Land Management.
Exploration means activities conducted on the Reserve for the
purpose of evaluating petroleum resources, including crude oil, gases
(including natural gas), natural gasoline, and other related
hydrocarbons, oil shale, and the products of any such resources.
Indigenous Knowledge (IK) means a body of observations, oral and
written knowledge, practices, and beliefs developed by Tribes and
Indigenous Peoples through interaction and experience with the
environment. It is applied to phenomena across biological, physical,
social, and cultural systems. IK can be developed over millennia,
continues to develop, and includes understanding based on evidence
acquired through direct contact with the environment and long-term
experiences, as well as extensive observations, lessons, and skills
passed from generation to generation. IK is developed by Indigenous
Peoples including, but not limited to, Tribal Nations, American
Indians, and Alaska Natives.
Integrated Activity Plan (IAP) means a land use management plan
that governs the management of all BLM-administered lands and minerals
throughout the Reserve.
Infrastructure means a structure or improvement that is not built
for use by subsistence hunters, trappers, fishers, berry-pickers, and
other subsistence users to facilitate subsistence activities and that
is not ephemeral, such as snow or ice roads. Infrastructure includes
[[Page 62040]]
pipelines, gravel drilling pads, and other improvements built to
support commercial oil and gas activities, but it does not include
exploratory wells that are drilled in a single season; infrastructure
in support of science and public safety; and construction, renovation,
or replacement of facilities on existing gravel pads at previously
disturbed sites where the facilities will promote safety and
environmental protection.
Reserve means those lands within the National Petroleum Reserve in
Alaska (prior to June 1, 1977, designated Naval Petroleum Reserve No.
4) which was established by Executive order, dated February 27, 1923,
except for tract Numbered 1 as described in Public Land Order 2344 (the
Naval Arctic Research-Laboratory--surface estate only) dated April 24,
1961.
Secretary means the Secretary of the Interior.
Significant resource value means any subsistence, recreational,
fish and wildlife, historical, or scenic value identified by the Bureau
as supporting the designation of a Special Area.
Special Areas means areas within the Reserve identified by the
Secretary or by statute as having significant resource values and that
are managed to assure maximum protection of such values, to the extent
consistent with the requirements of the Act for the exploration of the
Reserve.
Use authorization means a written approval of a request for use of
land or resources.
Sec. 2361.6 Effect of law.
(a) Subject to valid existing rights, and except as provided by the
Department of the Interior Appropriations Act, Fiscal Year 1981 (Pub.
L. 96-514), all lands within the exterior boundaries of the Reserve are
reserved and withdrawn from all forms of entry and disposition under
the public land laws, including the mining and mineral leasing laws,
and all other acts.
(b) Notwithstanding the provisions of paragraph (a) of this
section, the Secretary is authorized to:
(1) Make dispositions of mineral materials pursuant to the Act of
July 31, 1947 (61 Stat. 681), as amended (30 U.S.C. 601), for
appropriate use by Alaska Natives and the North Slope Borough.
(2) Make such dispositions of mineral materials and grant such
rights-of-way, licenses, and permits as may be necessary to carry out
the Secretary's responsibilities under the Act.
(3) Convey the surface of lands properly selected on or before
December 18, 1975, by Native village corporations pursuant to the
Alaska Native Claims Settlement Act, as amended (43 U.S.C. 1601, et
seq.).
(4) Grant such rights-of-way to the North Slope Borough, under the
provisions of title V of the Federal Land Policy and Management Act of
1976 (43 U.S.C. 1761 et seq.) or section 28 of the Mineral Leasing Act,
as amended (30 U.S.C. 185), as may be necessary to permit the North
Slope Borough to provide energy supplies to villages on the North
Slope.
(c) All other provisions of law heretofore enacted and actions
heretofore taken reserving such lands as a Reserve shall remain in full
force and effect to the extent not inconsistent with the Act.
(d) To the extent not inconsistent with the Act, all other public
land laws are applicable.
Sec. 2361.7 Severability.
If a court holds any provision of the regulations in this part or
their applicability to any person or circumstances invalid, the
remainder of these regulations and their applicability to other people
or circumstances will remain unaffected.
Sec. 2361.10 Protection of surface resources.
(a) In administering the Reserve, the Bureau must protect surface
resources by adopting whatever conditions, restrictions, and
prohibitions it deems necessary or appropriate to mitigate reasonably
foreseeable and significantly adverse effects of proposed activities.
Such conditions, restrictions, or prohibitions may involve
conditioning, delaying action on, or denying some or all aspects of
proposed activities, and will fully consider community access and other
infrastructure needs, after consultation with the North Slope Borough
and consistent with Sec. 2361.6.
(b) The Bureau will use the following procedures to protect surface
resources from the reasonably foreseeable and significantly adverse
effects of proposed activities:
(1) The Bureau will maintain an Integrated Activity Plan (IAP)
addressing management of all BLM-administered lands and minerals
throughout the Reserve. When issuing a use authorization, the Bureau
must conform to the IAP and these rules. To the extent there is any
inconsistency between the IAP and these rules, the rules govern;
(2) In each decision concerning proposed activity in the Reserve,
the Bureau will document consideration of, and adopt measures to
mitigate, reasonably foreseeable and significantly adverse effects on
fish and wildlife, water, cultural, paleontological, scenic, and any
other surface resource. The Bureau will take particular care to account
for, and mitigate adverse effects on, surface resources that support
subsistence uses and needs;
(3) In assessing effects of a decision concerning proposed activity
in the Reserve, the Bureau will identify and evaluate any reasonably
foreseeable effects of its decision, including effects that are later
in time or farther removed in distance, and effects that result from
the incremental effects of the proposed activities when added to the
effects of other past, present, and reasonably foreseeable actions; and
(4) The Bureau will document its consideration of any uncertainty
concerning the nature, scope, and duration of potential effects on
surface resources of the Reserve and shall ensure that any conditions,
restrictions, or prohibitions on proposed activities account for and
reflect any such uncertainty.
(c) When affected surface resources are located in Special Areas,
the Bureau must comply with the procedures and requirements of
Sec. Sec. 2361.20 through 2361.60.
(d) The Bureau must include in each decision and authorization
related to proposed activity in the Reserve such terms and conditions
that provide the Bureau with sufficient ability to fully implement the
requirements of this subpart.
(e)(1) To the extent consistent with the requirements of the Act,
the terms of any applicable existing authorization, and applicable law,
and after consultation with appropriate Federal, State, and local
agencies, federally recognized Tribes, and Alaska Native Claims
Settlement Act corporations, the authorized officer may limit,
restrict, or prohibit the use of or access to lands within the Reserve,
including Special Areas. Upon proper notice, as determined by the
authorized officer, such actions may be taken to protect fish and
wildlife breeding, nesting, spawning, lambing or calving, or
migrations; subsistence uses and resources; and other environmental,
scenic, or historic values.
(2) The consultation requirement in Sec. 2361.1(e)(1) is not
required when the authorized officer determines that emergency measures
are required.
(f) No site, structure, object, or other values of historical,
cultural, or paleontological character, including, but not limited to,
historic and prehistoric remains, fossils, and artifacts, shall be
injured, altered, destroyed, or collected without authorization under
an appropriate Federal permit and without
[[Page 62041]]
compliance with applicable law governing cultural items, archaeological
resources, and historic properties.
Sec. 2361.20 Existing Special Areas.
Any lands within the Reserve designated as a Special Area as of
[EFFECTIVE DATE OF THE FINAL RULE], will continue to be managed as a
Special Area except as modified pursuant to Sec. 2361.30, including:
(a) Colville River Special Area. The Colville River Special Area
encompasses the area within the boundaries depicted on maps that are
published as of [EFFECTIVE DATE OF THE FINAL RULE], and available for
public inspection at the Arctic District Office. The Colville River
Special Area shall be managed to assure maximum protection of the
following significant resource values, as well as additional values
identified through the process set forth in Sec. 2361.30:
(1) Important habitat for raptor species, including, but not
limited to, the Arctic peregrine falcon;
(2) Important habitat for other bird species, including, but not
limited to, neotropical migratory birds, shorebirds, loons, waterfowl,
inland dwelling sea birds, and passerines;
(3) Important habitat for moose;
(4) Important habitat for fish;
(5) Important subsistence activities;
(6) Important recreational activities;
(7) World-class paleontological deposits; and
(8) Significant cultural resources, including numerous sites from
the prehistoric and historic eras.
(b) Kasegaluk Lagoon Special Area. The Kasegaluk Lagoon Special
Area encompasses the area within the boundaries depicted on maps that
are published as of [EFFECTIVE DATE OF THE FINAL RULE], and available
for public inspection at the Arctic District Office. The Kasegaluk
Lagoon Special Area shall be managed to assure maximum protection of
the following significant resource values, as well as additional values
identified through the process set forth in Sec. 2361.30:
(1) Important habitat for marine mammals;
(2) Unique ecosystem for the Arctic Coast;
(3) Opportunities for primitive recreational experiences;
(4) Important habitat for migratory birds; and
(5) Important subsistence activities.
(c) Peard Bay Special Area. The Peard Bay Special Area encompasses
the area within the boundaries depicted on maps that are published as
of [EFFECTIVE DATE OF THE FINAL RULE], and available for public
inspection at the Arctic District Office. The Peard Bay Special Area
shall be managed to assure maximum protection of the following
significant resource values, as well as additional values identified
through the process set forth in Sec. 2361.30:
(1) Haul-out areas and nearshore waters for marine mammals; and
(2) High-use staging and migration areas for shorebirds and
waterbirds.
(d) Teshekpuk Lake Special Area. The Teshekpuk Lake Special Area
encompasses the area within the boundaries depicted on maps that are
published as of [EFFECTIVE DATE OF THE FINAL RULE], and available for
public inspection at the Arctic District Office. The Teshekpuk Lake
Special Area shall be managed to assure maximum protection of the
following significant resource values, as well as additional values
identified through the process set forth in Sec. 2361.30:
(1) Important nesting, staging, and molting habitat for a large
number of migratory and other waterbirds;
(2) Important caribou habitat;
(3) Important shorebird habitat;
(4) Subsistence hunting and fishing activities;
(5) Pik Dunes; and
(6) Overwintering habitat for fish.
(e) Utukok River Uplands Special Area. The Utukok River Uplands
Special Area encompasses the area within the boundaries depicted on
maps that are published as of [EFFECTIVE DATE OF THE FINAL RULE], and
available for public inspection at the Arctic District Office. The
Utukok River Uplands Special Area shall be managed to assure maximum
protection of the following significant resource values, as well as
additional values identified through the process set forth in Sec.
2361.30:
(1) Important habitat for the Western Arctic Caribou Herd;
(2) Subsistence hunting activities;
(3) Grizzly bear habitat; and
(4) Important wilderness values.
Sec. 2361.30 Special Areas designation and amendment process.
(a) The Bureau must evaluate lands within the Reserve for the
presence of significant subsistence, recreational, fish and wildlife,
historical, or scenic values and shall designate lands as Special Areas
containing such values in accordance with the following procedures:
(1) At least once every 5 years, the Bureau must evaluate and
determine whether to:
(i) Designate new Special Areas;
(ii) Expand existing Special Areas;
(iii) Recognize the presence of additional significant resource
values in existing Special Areas; or
(iv) Require additional measures to assure maximum protection of
significant resource values within existing Special Areas.
(2) The Bureau may, but is not required to, conduct the evaluation
and otherwise designate and amend Special Areas through amendment of
the IAP.
(3) Throughout the evaluation process, the Bureau must rely on the
best available scientific information, including Indigenous Knowledge,
as well as the best available information concerning subsistence uses
and resources within the Reserve.
(4) The Bureau must provide the public and interested stakeholders
with notice of, and meaningful opportunities to participate in, the
evaluation process, including the opportunity to recommend lands that
should be considered for designation as a Special Area, significant
resource values that the Bureau should consider recognizing for
existing Special Areas, and measures that the Bureau should consider
requiring to assure maximum protection of significant resource values
within Special Areas. The Bureau will evaluate and respond to
recommendations that are made in completing its evaluation. Such
recommendations should identify and describe:
(i) The size and location of the recommended lands;
(ii) The significant resource values that are present within or
supported by the recommended lands;
(iii) Measures that may be necessary to assure maximum protection
of those values; and
(iv) Any other pertinent information.
(5) If, at any point during the evaluation process, the authorized
officer determines that interim measures are required to assure maximum
protection of significant resource values in lands under consideration
for designation as a Special Area, the authorized officer may implement
such measures during the period for which the lands are under
consideration.
(6) The Bureau must base its decisions to designate lands as
Special Areas solely on the presence of significant resource values and
must not consider the existence of measures that have been or may be
adopted to protect or otherwise administer those values.
(7) When the Bureau designates lands as Special Areas or recognizes
the presence of additional significant resource values in existing
Special Areas, the Bureau must adopt measures to assure maximum
protection of significant resource values. Once adopted, these measures
become part of and supersede inconsistent provisions of the IAP then in
effect for the Reserve.
[[Page 62042]]
(8) For any lands designated as a Special Area, the Bureau will
publish a legal description of those lands in the Federal Register,
along with a concise summary of the significant resource values that
support the designation. The Bureau will also maintain a map of the
Special Area on its website.
(b) The Bureau may not remove lands from the Teshekpuk Lake and
Utukok River Uplands Special Areas unless directed to do so by statute.
The Bureau may remove lands within other Special Areas only when all of
the significant resource values that support the designation are no
longer present. When determining whether to remove lands from a Special
Area designation, the Bureau must:
(1) Prepare a summary of its proposed determination, including the
underlying factual findings;
(2) Provide the public and interested stakeholders with the
opportunity to review and comment on the proposed determination;
(3) Consult with any federally recognized Tribes and Alaska Native
Claims Settlement Act corporations that use the affected Special Area
for subsistence purposes or have historic or cultural ties to the
Special Area; and
(4) Issue a determination that documents how the views and
information provided by the public, federally recognized Tribes, Alaska
Native Claims Settlement Act corporations, federally qualified
subsistence users, and other interested stakeholders have been
considered.
Sec. 2361.40 Management of oil and gas activities in Special Areas.
Assuring maximum protection of significant resource values is the
management priority for Special Areas. The Bureau must fulfill this
duty at each stage in the decision-making process for oil and gas
activities in the Reserve and in accordance with the following
procedures:
(a) The Bureau will identify and adopt maximum protection measures
for each significant resource value that is present in a Special Area.
(b) The Bureau must, to the extent consistent with the Act, take
such steps as are necessary to avoid the adverse effects of proposed
oil and gas activities on the significant resource values of Special
Areas. This includes, but is not limited to, conditioning, delaying
action on, or denying proposals for activities, either in whole or in
part.
(c) Subject to any revisions made pursuant to Sec. 2361.30, oil
and gas leasing and authorization of new infrastructure in Special
Areas will conform to the land use allocations and restrictions
identified on the maps published as of [EFFECTIVE DATE OF THE FINAL
RULE], and available for public inspection at the Arctic District
Office. On lands allocated as available for future oil and gas leasing
or new infrastructure, the Bureau will presume that those activities
should not be permitted unless specific information available to the
Bureau clearly demonstrates that those activities can be conducted with
no or minimal adverse effects on significant resource values.
(d) The following exceptions apply within lands identified as
closed to leasing or unavailable to new infrastructure:
(1) The Bureau may issue oil and gas leases in Special Areas if
drainage is occurring. Any lease issued for drainage purposes will
include provisions that prohibit surface-disturbing oil and gas
activities on the entire lease tract.
(2) The Bureau may approve new roads, pipelines, transmission
lines, and other types of infrastructure in Special Areas provided
that:
(i) The infrastructure will primarily be used by and provide a
benefit to communities located within or in close proximity to the
Reserve or will support subsistence activities; and
(ii) Appropriate measures are adopted to assure maximum protection
of significant resource values.
(3) The Bureau may approve new permanent infrastructure related to
existing oil and gas leases only if such infrastructure is essential
for exploration or development activities and no practicable
alternatives exist which would have less adverse impact on significant
resource values of the Special Area, but only if necessary to comport
with the terms of a valid existing lease.
(e) The Bureau must document and consider any uncertainty
concerning the nature, scope, and duration of potential adverse effects
on significant resource values of Special Areas and shall ensure that
any actions it takes to avoid, minimize, or mitigate such effects
account for and reflect any such uncertainty.
(f) If the Bureau determines that it cannot avoid adverse effects
on a Special Area's significant resource values, then it must prepare a
Statement of Adverse Effect, which must describe the:
(1) Significant resource values that may be adversely affected;
(2) Nature, scope, and duration of those adverse effects;
(3) Measures the Bureau evaluated to avoid the adverse effects;
(4) Justification for not requiring those measures;
(5) Measures the Bureau will require to minimize, to the maximum
extent possible, adverse effects on significant resource values of the
Special Area; and
(6) Measures the Bureau will require to mitigate any residual
adverse effects that cannot be avoided or minimized, including
compensatory mitigation, along with an explanation of how those
measures will assure maximum protection of significant resource values.
(g) The Bureau must provide the public with a meaningful
opportunity to review and comment on any Statement of Adverse Effect
prepared under this section and must consider and respond to any
relevant matter it receives.
(h) The Bureau must consult with any federally recognized Tribes
and Alaska Native Claims Settlement Act corporations that use the
affected Special Area for subsistence purposes or have historic or
cultural ties to the Special Area.
(i) The Bureau must include in each decision and authorization
related to oil and gas activity in the Reserve terms and conditions
that provide the Bureau with sufficient authority to fully implement
the requirements of this section.
Sec. 2361.50 Management of subsistence uses within Special Areas.
(a) The Bureau will ensure that Special Areas are managed to
protect and support fish and wildlife and fish and wildlife habitat and
associated subsistence use of such areas by rural residents as defined
in 50 CFR 100.4.
(b) The Bureau will provide appropriate access to and within
Special Areas for subsistence purposes to the extent consistent with
assuring maximum protection of all significant resource values that are
found in such areas.
Sec. 2361.60 Co-stewardship opportunities in Special Areas.
In accordance with the Bureau's co-stewardship guidance, the Bureau
will seek opportunities to engage Tribes in co-stewardship for Special
Areas. Co-stewardship opportunities may include co-management,
collaborative and cooperative management, and Tribally-led stewardship,
and can be implemented through cooperative agreements, memoranda of
understanding, self-governance agreements, and other mechanisms. The
Bureau may also partner with Alaska Native Claims Settlement Act
corporations, local governments, or organizations as provided by law.
Sec. 2361.70 Use authorizations.
(a) Use authorizations must be obtained from the authorized officer
[[Page 62043]]
prior to any use within the Reserve. Only uses that are consistent with
the purposes and objectives of the Act and these regulations will be
authorized.
(b) Except as may be limited, restricted, or prohibited by the
authorized officer pursuant to Sec. Sec. 2361.1 and 2361.2 or
otherwise, use authorizations are not required for:
(1) Subsistence uses (e.g., hunting, fishing, and berry-picking);
and
(2) Non-commercial recreational uses (e.g., hunting, fishing,
backpacking, and wildlife observation).
(c) Applications for use authorizations shall be filed in
accordance with applicable regulations in this chapter. In the absence
of such regulations, the authorized officer may consider and act upon
applications for uses allowed under the Act.
(d) In addition to other statutory or regulatory requirements,
approval of applications for use authorizations shall be subject to
such terms and conditions as the authorized officer determines to be
necessary to protect the environmental, subsistence, recreational, fish
and wildlife, historical, and scenic values of the Reserve and to
assure maximum protection of significant resource values within Special
Areas.
Sec. 2361.80 Unauthorized use and occupancy.
Any person who violates or fails to comply with regulations of this
subpart is subject to prosecution, including trespass and liability for
damages, pursuant to the appropriate laws.
Subpart 2362 [Reserved]
[FR Doc. 2023-18990 Filed 9-7-23; 8:45 am]
BILLING CODE 4331-27-P
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</html>Indexed from Federal Register on September 8, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.