Rule2024-08585
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
May 7, 2024
Effective
June 6, 2024
Issuing agencies
Interior DepartmentLand Management Bureau
Abstract
This rule governs the management of surface resources and Special Areas in the National Petroleum Reserve in Alaska (Reserve or NPR-A). The Bureau of Land Management (BLM) manages the NPR-A consistent with its duties under the Naval Petroleum Reserves Production Act, as amended (NPRPA), Federal Land Policy and Management Act, as amended, (FLPMA), and other authorities. The rule revises the framework for designating and assuring maximum protection of Special Areas' significant resource values and protects and enhances access for subsistence activities throughout the NPR-A. It also incorporates aspects of the NPR-A Integrated Activity Plan (IAP) approved in April 2022.
Full Text
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[Federal Register Volume 89, Number 89 (Tuesday, May 7, 2024)]
[Rules and Regulations]
[Pages 38712-38760]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-08585]
[[Page 38711]]
Vol. 89
Tuesday,
No. 89
May 7, 2024
Part VII
Department of the Interior
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Bureau of Land Management
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43 CFR Part 2360
Management and Protection of the National Petroleum Reserve in Alaska;
Final Rule
Federal Register / Vol. 89, No. 89 / Tuesday, May 7, 2024 / Rules and
Regulations
[[Page 38712]]
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DEPARTMENT OF THE INTERIOR
Bureau of Land Management
43 CFR Part 2360
[BLM_HQ_FRN_MO4500177994]
RIN 1004-AE95
Management and Protection of the National Petroleum Reserve in
Alaska
AGENCY: Bureau of Land Management, Interior.
ACTION: Final rule.
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SUMMARY: This rule governs the management of surface resources and
Special Areas in the National Petroleum Reserve in Alaska (Reserve or
NPR-A). The Bureau of Land Management (BLM) manages the NPR-A
consistent with its duties under the Naval Petroleum Reserves
Production Act, as amended (NPRPA), Federal Land Policy and Management
Act, as amended, (FLPMA), and other authorities. The rule revises the
framework for designating and assuring maximum protection of Special
Areas' significant resource values and protects and enhances access for
subsistence activities throughout the NPR-A. It also incorporates
aspects of the NPR-A Integrated Activity Plan (IAP) approved in April
2022.
DATES: This rule is effective on June 6, 2024.
FOR FURTHER INFORMATION CONTACT: James Tichenor, Advisor--Office of the
Director, at 202-573-0536 or <a href="/cdn-cgi/l/email-protection#4228362b212a272c2d3002202e2f6c252d34"><span class="__cf_email__" data-cfemail="cca6b8a5afa4a9a2a3be8caea0a1e2aba3ba">[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#e0868292858d8e8592a0828c8dce878f96"><span class="__cf_email__" data-cfemail="9ff9fdedfaf2f1faeddffdf3f2b1f8f0e9">[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 rule, please see the rule
summary document in docket BLM-2023-0006 on <a href="http://www.regulations.gov">www.regulations.gov</a>.
SUPPLEMENTARY INFORMATION:
I. List of Acronyms and Abbreviations
II. Executive Summary
III. Background
IV. Section-by-Section Discussion
V. Procedural Matters
I. List of Acronyms and Abbreviations
To ease the reading of this preamble and for reference purposes,
the following acronyms and abbreviations are used in the preamble:
ANILCA (Alaska National Interest Lands Conservation Act of 1980)
BLM (Bureau of Land Management)
ASRC (Arctic Slope Regional Corporation)
FLPMA (Federal Land Policy and Management Act of 1976)
IAP (Integrated Activity Plan)
ICAS (I[ntilde]upiat Community of the Arctic Slope)
NPR-A or Reserve (National Petroleum Reserve in Alaska)
NPRPA or the Act (Naval Petroleum Reserves Production Act of 1976)
UIC (Ukpea[gdot]vik I[ntilde]upiat Corporation)
II. Executive Summary
The Naval Petroleum Reserves Production Act of 1976 (NPRPA) gives
the BLM three overarching mandates for managing the Reserve: (1)
conduct an oil and gas exploration, leasing, and production program;
(2) protect environmental, fish and wildlife, historical, and scenic
surface resources from the impacts of that program through mitigation
of reasonably foreseeable and significantly adverse effects; and (3)
assure maximum protection for significant surface values from the
impacts of the oil and gas program, including subsistence use, within
Special Areas. Through this rulemaking process, the BLM is developing a
more cohesive framework for these three mandates by establishing
requirements and procedures for protecting the surface values of the
Reserve while conducting the oil and gas program.
The final rule implements the critical components of the statutory
framework described above, establishing procedures for the BLM to
mitigate reasonably foreseeable and significantly adverse effects of
proposed oil and gas activities on the surface resources of the Reserve
and to provide maximum protection for surface values within Special
Areas for proposed oil and gas activities. The BLM will continue to
follow the part 3130 regulations for managing oil and gas leasing and
production in the Reserve.
The rule updates the purpose of the subpart 2361 regulations to
more accurately and completely reflect the scope of the regulations.
The purpose of the updated regulations is 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],'' and 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 rule establishes new standards and procedures for managing and
protecting surface resources in the Reserve from the reasonably
foreseeable and significantly adverse effects of oil and gas
activities. It requires the BLM, in each decision concerning oil and
gas activity in the Reserve, 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 rule requires the BLM to manage oil and gas activities
in accordance with the IAP, enshrining longstanding BLM practice into
regulations. 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 (NEPA).
The rule codifies the five existing Special Areas and their
significant resource values and management as currently established in
Secretarial decisions and the 2022 IAP, and it establishes a process
for designating, amending, and de-designating Special Areas in the
future. The rule sets forth standards and procedures for managing oil
and gas activities within Special Areas, confirming that the management
priority within Special Areas is to assure maximum protection of
significant resource values consistent with the requirements of the
NPRPA for exploration of and production from the Reserve. The
procedures detail requirements for analyzing proposed oil and gas
leasing, exploration, development, or new infrastructure in Special
Areas, including providing opportunities for public participation and
consulting with federally recognized Tribes and Alaska Native Claims
Settlement Act (ANCSA) corporations that use the affected Special Area
for subsistence purposes or have historic, cultural, or economic ties
to the Special Area. The BLM must evaluate potential adverse effects on
significant resource values and consider measures to avoid, minimize,
or otherwise mitigate adverse effects to achieve maximum protection of
significant resource values.
The rule requires the BLM to manage Special Areas to protect and
support
[[Page 38713]]
fish and wildlife and their habitats and the associated subsistence use
of those areas by rural residents, and it requires the BLM to provide
reasonable access to and within Special Areas for subsistence purposes.
The rule encourages the BLM to explore co-stewardship opportunities for
Special Areas, including co-management, collaborative and cooperative
management, and tribally led stewardship, fulfilling the special trust
relationship that the Department of the Interior has with Tribes.
III. Background
A. The Need for the Rule
The BLM is promulgating this final rule because the regulatory
framework governing the management and protection of environmental,
fish and wildlife, other surface resources, and Special Areas in the
Reserve 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 Reserve.
Rapidly changing conditions, including the intensifying impacts of
climate change on the Reserve's natural environment and Native
communities, make it necessary and appropriate for the BLM to develop
new regulations that account for and respond to these changing
conditions and that require the BLM to regularly address changing
conditions.
In addition, the current regulations do not reflect the full
management regime for the Reserve. This rule will provide a framework
for management to protect Special Areas and surface resources in the
Reserve, which requires a delicate balance between exploration for and
development of oil and gas resources and protecting subsistence,
recreational, fish and wildlife, historical, scenic, and other values.
The applicable legal standards and procedures for management of the
Reserve are currently scattered throughout several statutes and BLM
regulations, plans, and guidance documents. For example, the existing
regulations do not integrate with the BLM's development and use of
IAPs, which have been used for more than two decades to guide
management of lands within the Reserve. Although the BLM is not
required to prepare a resource management plan for the Reserve under
FLPMA, see 42 U.S.C. 6506a(c), it has chosen to produce and update the
IAP through a public process and supported by analysis in an
Environmental Impact Statement (EIS). The IAP allocates land uses in
the Reserve and includes oil and gas lease stipulations and
infrastructure restrictions that apply to BLM authorizations in Special
Areas and other areas throughout the Reserve. The overlay of an updated
regulatory regime to govern the Reserve, including the requirement to
develop future IAPs to direct management of the lands and resources in
the Reserve, will enhance consistency and certainty, particularly with
respect to protection of surface resources and Special Areas.
Through the NPRPA, as amended, Congress has given the BLM three
overarching mandates for managing the Reserve: (1) conduct an oil and
gas exploration, leasing and production program; (2) protect
environmental, fish and wildlife, historical, and scenic surface
resources from the impacts of that program through mitigation of
reasonably foreseeable adverse effects; and (3) assure maximum
protection for significant surface values from the impacts of the oil
and gas program, including subsistence use, within Special Areas.
Through this rulemaking process, the BLM is developing a more cohesive
framework for these three mandates by establishing requirements and
procedures for protecting the surface values of the Reserve while
conducting the oil and gas program, as discussed in more detail below.
1. Conduct an Oil and Gas Leasing, Exploration, and Production Program
The NPRPA directs the Secretary of the Interior to ``conduct an
expeditious program of competitive leasing of oil and gas in the
Reserve in accordance with this Act.'' In response to this mandate, in
1981 the BLM developed regulations establishing the procedures for
administering a competitive leasing program for oil and gas within the
Reserve. Those regulations are set forth in 43 CFR part 3130, and they
are not being amended in this rulemaking process. Following
promulgation of the part 3130 regulations, the BLM held two lease sales
in the Reserve in 1982 and one each in 1983 and 1984.\1\ 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 Reserve for the next 15 years.\2\ The BLM
restarted lease sales in 1999 and, over the next 2 decades, held a
total of 15 sales for the Reserve. These sales initially generated
considerable bonus bid revenue for the Federal Government and the State
of Alaska; however, bid revenue dropped off significantly as lands in
the Reserve with the highest potential for development were leased.
Between 1999 and 2019, the BLM offered nearly 60 million acres of
leases in the Reserve but received bids on just 12 percent of that
acreage.\3\
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\1\ 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>.
\2\ 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>.
\3\ 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>.
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The BLM continues to authorize oil and gas leasing and production
in the Reserve. The most recent oil and gas lease sale in the Reserve
occurred in 2019. Under the 2022 IAP, approximately 11.8 million acres
of the Reserve's subsurface estate are available for oil and gas
leasing. In March 2023, the BLM approved the Willow Master Development
Plan Project for construction and operation of new infrastructure in
the Bear Tooth Unit within the Reserve. The approved Willow project
incorporates substantial resource protection measures, such as reducing
the number of proposed drill sites, while authorizing the production
and transportation to market of Federal oil and gas resources within
the Reserve, consistent with the BLM's statutory directives.
2. Protect Environmental, Fish and Wildlife, Historical, and Scenic
Values
Under the NPRPA, the Secretary of the Interior assumes all
responsibilities for the protection of environmental, fish and
wildlife, and historical or scenic values. The Act authorizes the
Secretary to ``promulgate such rules and regulations as [she] deems
necessary and appropriate for the protection of such values within the
reserve.'' 42 U.S.C. 6503(b). The BLM additionally 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 Reserve. 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. New and revised standards and procedures
are needed to ensure that the BLM is fulfilling its statutory duties
under the NPRPA, FLPMA, and other authorities to the best of its
ability.
The many important surface resources of the Reserve are described
in detail in
[[Page 38714]]
the preamble to the proposed rule. These include extensive calving
grounds for the Teshekpuk Caribou Herd and the Western Arctic Caribou
Herd; threatened and sensitive bird species and the Qupa[lstrok]uk
Flyway Network Site; marine mammals including polar bears, six whale
species, spotted seals, and walruses; and abundant fish species
including Pacific salmon. Overall, the implications of climate change
for wildlife in the Arctic are substantial, particularly for marine
mammals that are threatened by continued Arctic warming and the
resulting deterioration of sea ice. The final rule better supports the
BLM's ability to manage impacts to surface resources resulting from
climate change and to respond to changing conditions more rapidly.
3. Assure Maximum Protection for Significant Surface Values, Including
Subsistence Use, Within Specially Designated Areas
The NPRPA requires the BLM to ``assure the maximum protection of
[significant subsistence, recreational, fish and wildlife, or
historical or scenic] 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). This requirement applies to the
impacts of all oil and gas activities. 42 U.S.C. 6504(a); 6506a(n)(2).
The final rule improves 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.
The final rule also maintains and enhances access for long-standing
subsistence activities in the Reserve. The importance of subsistence
harvesting to the I[ntilde]upiat people and residents of communities in
and around the Reserve is discussed in depth in the preamble to the
proposed rule. 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. Effects on
subsistence and concerns for ongoing subsistence activities have also
been documented for Point Lay, Wainwright, Utqiagvik, Atqasuk, and
Anaktuvuk Pass. Many of these effects are related to oil and gas
exploration and development--including seismic activity and oil and
gas-related research, pipelines, and traffic--on caribou and other
terrestrial species. Provisions of the rule for management of
subsistence uses within Special Areas and co-stewardship opportunities
in management of Special Areas and subsistence fulfill the special
trust relationship that the Department of the Interior has with Tribes.
In sum, this rule implements the critical components of the
statutory framework described above, establishing procedures for the
BLM to mitigate reasonably foreseeable and significantly adverse
effects of proposed oil and gas activities on the surface resources of
the Reserve and to provide maximum protection for surface values within
Special Areas for proposed oil and gas activities, consistent with the
requirements of the Act related to conducting oil and gas exploration
and production--all as explicitly required by the NPRPA. The BLM will
continue to follow the part 3130 regulations for managing oil and gas
leasing and production in the Reserve. The BLM will also continue to
maintain an IAP for the Reserve per the final rule. The IAP addresses
management of the Reserve more broadly than oil and gas activities,
whereas this rule and the codification of the 2022 IAP in provisions of
this rule apply only to oil and gas activities.
Public Comments on the Need for the Rule
During the public comment period, the BLM received approximately
89,000 comments on <a href="http://regulations.gov">regulations.gov</a> from Tribes, Alaska Native
Corporations, State and local governments, organizations, businesses,
and individuals. Among them were comments from the Arctic Slope
Regional Corporation, Doyon Limited, I[ntilde]upiat Community of the
Arctic Slope, Kuukpik, Native Village of Kotzebue, and Village of
Wainwright.
This preamble responds to comments in the relevant part of the
discussion. For example, the following addresses comments on the need
for the rule.
Comment: Commenters stated that the Reserve was set aside for the
purposes of energy resource development and security in the United
States and that they do not think that the BLM should promote any
regulations that would slow, deter, or counter these purposes.
BLM Response: The rule implements express statutory direction in
the NPRPA, which requires authorizations for oil and gas activities to
``include or provide for such conditions, restrictions, and
prohibitions . . . necessary or appropriate to mitigate reasonably
foreseeable and significantly adverse effects on the surface
resources'' throughout the Reserve. The NPRPA also requires the BLM to
ensure maximum protection of Special Areas' significant resource values
from oil and gas activities. Please see the Brief Administrative
History of the Reserve discussion below for more details.
Comment: The BLM received comments requesting that it remove the
climate change justification from the Need for the Rule discussion. The
BLM also received comments that balancing oil and gas activities with
the protection of surface resources is not enough to address the
climate change concerns raised in section II(E), Need for the Rule.
BLM Response: Intensifying impacts from climate change are
particularly affecting North Slope I[ntilde]upiaq communities and
creating substantial uncertainty for managing surface resources in the
Reserve. Changes in native plant communities, wildlife habitat, and
migration corridors, particularly for caribou, are affecting the
availability of and access to subsistence resources. Climate change is
also affecting things like permafrost stability and creating
engineering challenges for infrastructure. Promulgating this rule now
provides industry with assurances regarding management of the Reserve
and allows it to better plan for future exploration and development.
Updating the regulatory framework will improve the BLM's ability to
respond to changing conditions in the Arctic while providing
transparency in conservation and development decisions.
Comment: The BLM received comments espousing the position that
there is not a need for additional rules to manage the Reserve because
the IAP already provides stringent requirements for environmental
protection and designates specific areas for oil and gas development.
BLM Response: The 2022 IAP Record of Decision (ROD) provides broad
management direction for uses and activities allowed within the
Reserve, including requirements for environmentally and socially
responsible resource development. The BLM is seeking to codify the 2022
IAP development process and management framework for oil and gas
activity into regulations, which currently are over 40 years old and
outdated. Additionally, this final rule consolidates the provisions
governing the BLM's management of oil and gas activity while mitigating
adverse effects on surface resources and managing Special Areas for
maximum protection of significant resource values in the Reserve.
Comment: Commenters requested that the BLM cite the need to protect
wildlife species, including those with declining
[[Page 38715]]
populations like the Arctic peregrine falcon and caribou, in the Need
for the Rule.
BLM Response: The concerns raised in this comment are encompassed
in the proposed and final rule with references to ``protection and
control of the environmental, fish and wildlife, and historical and
scenic values of the National Petroleum Reserve in Alaska.''
B. Brief Administrative History of the Reserve
Designated by President Warren G. Harding in 1923 as Naval
Petroleum Reserve No. 4, E.O. 3797-A, the Reserve is one of several
naval petroleum reserves established on public land in the early part
of the 20th Century to serve as an emergency oil reserve for the U.S.
Navy. The Reserve extends from the north slope of the Brooks Range to
the Arctic Coast and encompasses approximately 23 million acres of
public land.
The U.S. Navy explored for oil and gas in the Reserve from 1944 to
1953, resulting in the discovery of two small oil fields (Simpson and
Umiat), one prospective oil field (Fish Creek), a gas field (South
Barrow), and four prospective gas fields (Meade, Square Lake, Titaluk,
and Wolf Creek). The Navy also pioneered numerous methods for oil
exploration in the Arctic and collected a tremendous amount of
scientific information concerning northern Alaska. By the 1970s, when
Congress began debating the role of the naval petroleum reserves in the
context of the nation's changing energy needs, the Reserve remained
``largely unexplored and almost completely undeveloped.'' H.R. Rep. No.
94-156, at 3 (1975). In 1976, Congress passed the NPRPA, which
transferred administrative jurisdiction over the Reserve from the
Secretary of the Navy to the Secretary of the Interior and redesignated
the ``Naval Petroleum Reserve Numbered 4, Alaska'' as the ``National
Petroleum Reserve in Alaska'' in 1977. Public Law 94-258 (1976)
(codified at 42 U.S.C. 6502). It also 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. Id.
section 105(b)(1) (codified at 42 U.S.C. 6505(b)).
In the NPRPA, Congress sought to strike a balance between oil and
gas exploration and ``the protection of environmental, fish and
wildlife, and historical or scenic values'' in the Reserve. 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 Reserve's ``natural, fish 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.
Congress further 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).
To implement the NPRPA, the BLM developed regulations in 1977 to
govern management and protection of the Reserve. Those regulations,
which have remained unchanged since their original promulgation, are
set forth at 43 CFR part 2360, subpart 2361. The regulations provide a
purpose and objectives for the protection of the environmental, fish
and wildlife, and historical or scenic values of the Reserve and
require the BLM to take such action as is necessary to mitigate or
avoid unnecessary surface damage and to minimize ecological disturbance
throughout the Reserve to the extent consistent with the requirements
of the NPRPA for the exploration of the Reserve. Among other
provisions, the regulations identify examples of maximum protection
measures that may be implemented to protect significant resource values
and provide guidance for designating additional Special Areas within
the Reserve.
Three years after the BLM developed regulations to govern
management of the Reserve, the Department of the Interior
Appropriations Act, Fiscal Year 1981, directed the Secretary to
``conduct an expeditious program of competitive leasing of oil and
gas'' in the Reserve, 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 BLM subsequently developed a new set of
regulations to govern the oil and gas leasing program in the Reserve,
which were promulgated in 1981 and are set forth at 43 CFR part 3130.
The part 3130 regulations did not amend the subpart 2361 regulations,
and, as a result, the BLM currently follows two sets of regulations
located in different parts of the code governing management of the
Reserve.
The Fiscal Year 1981 Appropriations Act also exempted the Reserve
from the requirement to prepare land use plans under section 202 of
FLPMA. However, the BLM has found that planning is beneficial to ensure
compliance with the statutory and regulatory framework governing the
Reserve and since 1998 has maintained an IAP for the Reserve. Because
planning in the Reserve is exempted from FLPMA section 202, the IAP is
not developed as a resource management plan and does not implement
multiple use and sustained yield. Instead, the IAP focuses possible
future BLM management practices on those uses that are allowable under
the NPRPA for the Reserve, and consistent with NEPA regulations at 40
CFR parts 1500 through 1508, the IAP is developed through an EIS
process.
The BLM first developed an IAP for the Northeast portion of the
Reserve, which was finalized in 1998, and established initial surface
protections relevant to the Teshekpuk Lake and Colville River Special
Areas. Upon signing the 1998 ROD, the Secretary approved the addition
of ``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, thus increasing its size to 2.44 million
acres, and the addition of the Pik Dunes to the Teshekpuk Lake Special
Area. 64 FR 16747 (April 6, 1999). The 2003 Northwest NPR-A IAP
proposed the new Kasegaluk Lagoon Special Area, which the Secretary
approved in a ROD in 2004. See 70 FR 9096 (Feb. 24, 2005). The
Kasegaluk Lagoon Special Area is located in the northwestern corner of
the Reserve and includes important habitat for marine mammals, among
other values.
The BLM developed the first IAP for the full Reserve in 2013.
Through the 2013 IAP, the Secretary made several
[[Page 38716]]
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.''
(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>.) 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 . .
. .'' (Id. at 19.) 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 . . . .'' (Id.
at 4.) 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.''
(Id.)
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 Reserve. (BLM,
NPR-A Final IAP/EIS (June 2020), available at <a href="https://eplanning.blm.gov/eplanning-ui/project/117408/570">https://eplanning.blm.gov/eplanning-ui/project/117408/570</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, 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. Section 3.6 of the 2022 IAP details the BLM's process for
evaluating impacts to subsistence use and findings based on that
evaluation.
The 2022 IAP makes approximately 11.8 million acres (52 percent) of
the Reserve's subsurface estate available for oil and gas leasing. The
remaining approximately 11 million acres (48 percent) of the Reserve,
including the majority of lands within Special Areas and much of the
coastal area of the Reserve along the Beaufort Sea, are closed to oil
and gas leasing to protect and conserve important surface resources and
uses in these areas. The majority of the area closed to oil and gas
leasing was determined to be medium or low potential for discovery or
development of oil and gas resources in the Reasonably Foreseeable
Development Scenario in the 2020 NPR-A Final IAP/EIS. (BLM, NPR-A Final
IAP/EIS at B-1 (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>.) The IAP makes lands available for
application for oil and gas infrastructure, including pipelines and
other infrastructure necessary for owners of any offshore leases in the
State or Federal waters of the Chukchi and Beaufort Seas to bring oil
and gas across the Reserve to the Trans-Alaska Pipeline System, while
also prohibiting new infrastructure on lands containing habitat of
special importance to nesting, breeding, and molting waterfowl as well
as those with critical calving and insect relief areas for the
Teshekpuk Lake and Western Arctic Caribou Herds. (BLM, NPR-A IAP ROD 1-
2 (Apr. 2022))
C. Statutory Authority
The NPRPA is the primary source of management authority for the
Reserve. 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. However, the NPRPA also requires the Secretary to ensure all oil
and gas activities within the Reserve ``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).
Other authorities that guide management of the NPR-A include FLPMA
and the Alaska National Interest Lands Conservation Act of 1980
(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 provisions.
Hence, the BLM must ``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).
Similarly, certain portions of ANILCA apply within the Reserve. Of
particular importance for this rule, section 810 of ANILCA, which
governs subsistence
[[Page 38717]]
uses within the Reserve, requires the BLM to ``evaluate the effect'' of
proposed 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 more than 40
communities utilize its resources for subsistence purposes.
Public Comments on Statutory Authority
Comments: Some commenters asserted that the proposed rule conflicts
with the plain language and congressional intent of the NPRPA, as
amended by Public Law 96-514 (codified at 42 U.S.C. 6506a). Other
commenters raised concerns that the proposed rule ignores that the
NPRPA exempted the Reserve from certain provisions of FLPMA. Others
commented that the proposed rule violates the plain language and
congressional intent of FLPMA and the application in the rule is
therefore inappropriate. Commenters further stated that Congress
designated the Reserve to be developed in balance with conservation and
that the proposed rule aims to align management of the Reserve with
FLPMA in a manner that ignores the unique considerations identified in
the NPRPA and would inappropriately restrict oil and gas development
and decrease domestic oil supply.
BLM Response: The BLM disagrees with commenters' assertions that
the rule conflicts with the NPRPA or FLPMA. This rule appropriately
implements the statutory framework in the NPRPA, as amended, to provide
for oil and gas exploration and development in the Reserve while
ensuring the protection of environmental, fish and wildlife, and
historical or scenic values across the Reserve; and specifically within
Special Areas to ensure that any oil and gas activity is undertaken in
a manner that provides for the maximum protection of surface values to
the extent consistent with the requirements of the NPRPA.
Similarly, this rule appropriately implements the applicable
provisions of FLPMA to the management of the Reserve. The Department of
the Interior and Related Agencies' Fiscal Year (FY) 1981 Appropriations
Act (Pub. L. 96-514) exempted management of the Reserve from only two
sections of FLPMA: section 202 (43 U.S.C. 1712), which requires the BLM
to prepare resource management plans to guide management of public
lands; and section 603 (43 U.S.C. 1782), which required the BLM to
complete wilderness reviews and describes the procedures for managing
any lands recommended to Congress for wilderness designation pending
congressional action. The BLM is otherwise obligated to manage public
lands within the Reserve pursuant to FLPMA, where consistent with the
NPRPA, as amended. Under FLPMA, the BLM has broad authority to regulate
the use, occupancy, and development of public lands within the Reserve
and must take action ``to prevent unnecessary or undue degradation of
the lands'' (43 U.S.C. 1732(b)).
Comments: Other comments suggested that the BLM add a specific
reference to ANILCA in Sec. 2361.3.
BLM Response: The BLM agrees with this suggestion and has added a
discussion of ANILCA to that section of the final rule.
D. Public Engagement
The BLM published the proposed rule in the Federal Register on
September 8, 2023 (88 FR 62025), for a 60-day comment period ending on
November 7, 2023. In response to public requests for an extension, the
BLM extended the comment period for 10 days (88 FR 72985) and then
again for 20 days (88 FR 80237). The resulting 90-day comment period
closed on December 7, 2023.
During the comment period, the BLM hosted a variety of public
outreach activities. The BLM held two virtual public meetings on
October 6 and November 6, 2023. Presentation slides and video
recordings of the virtual meetings were made available on the BLM
website for the rulemaking (<a href="https://www.blm.gov/about/laws-and-regulations/NPR-A-Rule">https://www.blm.gov/about/laws-and-regulations/NPR-A-Rule</a>). The BLM held three in-person meetings in
Anchorage (October 10, 2023), Nuiqsut (November 1, 2023), and Utqiagvik
(November 2, 2023) to provide an overview of the proposed rule and
answer questions from the public. The BLM also held one hybrid meeting
in Wainwright on December 4, 2023. A court reporter was present at the
Nuiqsut and Utqiagvik meetings to transcribe all comments and
questions. The hybrid meeting in Wainwright was recorded via the Zoom
platform, and those comments were collected by the BLM on behalf of the
commenters and submitted as comments to the rulemaking docket on
<a href="http://regulations.gov">regulations.gov</a> (<a href="https://www.regulations.gov/docket/BLM-2023-0006">https://www.regulations.gov/docket/BLM-2023-0006</a>).
Additionally, the BLM posted transcripts from the meetings as
supporting and related materials to the rulemaking docket on
<a href="http://regulations.gov">regulations.gov</a>.
The BLM also posted a fact sheet, a frequently-asked-questions
document, a side-by-side comparison of the proposed rule with the
existing regulation, and other background information on the BLM
website to further public understanding of the proposed rule (<a href="https://www.blm.gov/about/laws-and-regulations/NPR-A-Rule">https://www.blm.gov/about/laws-and-regulations/NPR-A-Rule</a>).
In addition, during the comment period, the BLM conducted external
outreach and participated in meetings to discuss the content of the
proposed rule, including congressional briefings; meetings with the
State of Alaska; and meetings with industry and other stakeholder
interest groups.
Public Comments on Public Engagement
Comments on scope of outreach:
Commenters noted their perception that the BLM did not seek the
input of those likely to be affected by the rulemaking prior to issuing
the Notice of Intent in the Federal Register, as they stated is
required by Executive Order (E.O.) 13563. Specifically, commenters
stated their position that the BLM did not conduct outreach or
engagement with the eight active lessees in the Reserve, State and
national trade associations (American Petroleum Institute and Alaska
Oil and Gas Association), and numerous Tribal and local government
entities including the North Slope Borough, to ``seek their views on
the scope or merits of the contemplated proposed rulemaking.''
Commenters also provided input on outreach methods. Commenters
suggested that the BLM utilize KBRW as local residents often listen to
that station for important announcements including meetings. Commenters
also suggested that the BLM reach out to local search and rescue
offices in villages because those volunteers directly interact with
subsistence users. Comments emphasized that many Tribes and allotment
owners do not have cell phones, utilize social media, or own computers;
many do not have internet access, and if they do, it is limited and
unreliable.
BLM Response: The BLM's intention to initiate this rulemaking was
announced in March 2023. On August 25, 2023, the BLM mailed a formal
offer for consultation to 45 Tribes and 30 Alaska Native Corporations
to engage in consultation on the proposed rule. The BLM did not receive
a response to these invitations from any of the Tribes or Alaska Native
Corporations. Since the announcement of the proposed rule on
[[Page 38718]]
September 8, 2023, the BLM has continued to offer consultation via
phone, email, and in-person invitations to Tribes and Alaska Native
Corporations that it determined would be most likely to have
substantial direct effects from the rule, including the Native Village
of Atqasuk; Atqasuk Corporation; Village of Wainwright; Olgoonik
Corporation; Native Village of Nuiqsut; Kuupik Corporation; Native
Village of Barrow; Ukpea[gdot]vik I[ntilde]upiat Corporation (UIC);
Arctic Slope Regional Corporation (ASRC); and I[ntilde]upiat Community
of the Arctic Slope (ICAS). On September 6th, 2023, agency staff called
State and local governments to ensure they were aware of the upcoming
publication of the proposed rule and to offer opportunities to discuss
the rule language.
For some proposed rules, the BLM chose to engage with stakeholders
about the broader topic earlier in the rulemaking process. In this
instance, however, we believed it would be more productive to engage in
more in-depth discussion regarding the content of the proposed changes
to the rule with the benefit of the actual proposal for review and
discussion.
The BLM worked with communities within the Reserve to host in-
person public comment meetings, including posting meeting flyers,
amplifying meetings on social media, and announcing the meetings on
local CB radios. We always appreciate suggestions on outreach methods
and how we might better reach audiences. We note the commenters'
specific outreach suggestions for future efforts in the North Slope
region.
Comments on timing:
Commenters expressed their concerns that the timeline for review of
the rule directly conflicted with hunting and fall subsistence whaling
activities. Commenters also noted their perception that the BLM is
ignoring local circumstances such as the North Slope Borough's mayoral
elections, which they stated prevented meaningful input on the proposed
rule from North Slope communities. Comments expressed the opinion that
the public comment timeline was inadequate, noting that 60 days was
insufficient, and that the additional 30 days of extensions still did
not allow North Slope organizations to diligently prepare comments on
the rule and to weigh-in to the fullest extent possible. Commenters
requested additional time to allow the public to have meaningful
opportunity to review the necessary information and provide substantive
comments.
Commenters expressed concern that the comment period for the rule
overlapped with the comment period for the Coastal Plain Oil and Gas
Leasing Program Supplemental EIS comment period.
Commenters emphasized the importance of working with the NPR-A
Working Group, as the group consists of important local leaders and
provides a forum for discussion of the rule including recommendations.
Commenters suggested that certain group members (specifically
Utqiagvik) did not receive notification of the meetings and that they
should be involved in the discussion.
Commenters noted their opinion that the schedule for in-person and
virtual public meetings for the rule did not provide sufficient notice
to allow the public to meaningfully participate, nor the opportunity to
adjust schedules so as to attend in person. Commenters also noted their
opinion that the meetings were hastily scheduled, with only a few days'
notice, and that meetings were canceled with little or no notice and
often not rescheduled. Commenters requested additional public meetings
and requested that those additional meetings be adequately noticed to
facilitate public participation and local engagement.
Commenters noted that there is no reason the proposed rule should
have substantially less public participation than other, less
significant actions that have dictated management of the Reserve as
both have been subject to the Administrative Procedure Act (APA).
Commenters noted that the APA ensures that BLM rulemaking is a
transparent and regular process.
BLM Response: BLM agrees that the timing for the public comment
period was difficult and not ideal. Whaling is an incredibly important
subsistence activity for North Slope communities, and fall is one of
two key times to harvest. While the comment period for the proposed
rule was during the fall whaling season, the BLM took steps to ensure
that North Slope communities were given the opportunity to provide
comments on the proposed rule and engage in the process in a meaningful
way. First, the BLM conducted extensive outreach to Reserve
communities, holding in-person public meetings in Nuiqsut, Utqiagvik,
and Wainwright. Further, we recognize that submitting public comments
online or through the mail might pose a challenge to these communities.
To facilitate greater participation, we offered opportunities for
community members at these sessions to submit their comments for the
record through comment cards or through a court reporter. In addition,
the agency met with the NPR-A Working Group three times during the
public comment period. The NPR-A Working Group is comprised of
representatives from North Slope local governments, Alaska Native
Corporations, and tribal entities. It is intended to provide a forum
for North Slope communities to provide input to management of the
Reserve (<a href="https://www.blm.gov/programs/energy-and-minerals/oil-and-gas/about/alaska/NPR-A/npr-a_working_group">https://www.blm.gov/programs/energy-and-minerals/oil-and-gas/about/alaska/NPR-A/npr-a_working_group</a>). For each meeting in Reserve
communities, the BLM coordinated meeting dates, times, and locations
with local entities, although some changes still resulted due to
unforeseen events or weather. Regarding the comment received specially
addressing the November 2 meeting in Utqiagvik, meeting details were
finalized in mid-October 2023 and advertised to the community via
social media and flyers, in addition to notification to the NPR-A
Working Group and posting on the project website.
The BLM received requests to extend the public comment period for
the proposed rule; specifically, we were asked to extend the comment
period for an additional 90 days, which would have made for a 150-day
(5-month) comment period. A 5-month comment period far exceeds the
typical duration for rulemaking comment periods. While we were unable
to grant the requested extension, the BLM did extend the comment period
for 30 days, resulting in a 90-day comment period for the proposed
rule. While the comment period for the proposed rule overlapped with
the comment period on the Draft Supplemental EIS for the Coastal Plain,
the Coastal Plain comment period was 60-days and ended one month before
the close of the comment period on the proposed rule.\4\ Throughout the
comment period and since, the BLM has continued to engage with Reserve
region Tribes and Alaska Native Corporations on the rule.
---------------------------------------------------------------------------
\4\ The Coastal Plain of the Arctic National Wildlife Refuge is
approximately 50 miles east of the NPR-A. The 2017 Tax Act (Pub. L.
115-97) directed the BLM to conduct two sales in the Coastal Plain
offering at least 400,000 acres of high-potential hydrocarbon lands
for bid by 2024. More information on the supplemental environmental
impact statement for the Coastal Plain Oil and Gas Leasing Program
can be found on that project's website at <a href="https://eplanning.blm.gov/eplanning-ui/project/2015144/570">https://eplanning.blm.gov/eplanning-ui/project/2015144/570</a>.
---------------------------------------------------------------------------
Comments on meeting format:
Commenters provided input on the format of both the in-person and
virtual meetings. Commenters noted that public comment and testimony
was not part of the meetings, which, in their opinion, confirmed the
BLM's ``limited intention to actually gather knowledge or data, or
[[Page 38719]]
to collaborate.'' Commenters also noted their perception that the BLM
limited questions from the public and only answered select written
questions submitted in English and then did not read them verbatim but
instead paraphrased them. Some commenters stated concern over the
format of the virtual meetings and noted that they did not think the
meetings were long enough in duration and that they prefer a townhall
format over the webinar format that was utilized. Commenters further
noted that they would have liked to interact with each other and/or the
BLM. Commenters expressed their opinion that the BLM's comment process
does not provide special considerations that account for Indigenous
groups' understanding of Western institutional public processes, which
makes the process less transparent to Indigenous peoples.
Some commenters noted that, in their opinion, the BLM should
``reset the process to allow more public engagement and to receive the
benefit of comment from informed stakeholders who can contribute to a
better and more durable final rule.''
BLM Response: All members of the public were invited to submit
comments to the BLM electronically at Regulations.gov or by mail,
personal delivery, or messenger delivery. The BLM uploaded comments
received by mail, personal delivery, or messenger delivery to
Regulations.gov. As the official repository of comments,
Regulations.gov is available to the public, allows the agency to better
track and make more effective use of comments, and allows the public to
review submissions from other commenters. For public meetings, the
agency hosted virtual and in-person informational sessions along with
in-person public comment meetings for communities located within the
Reserve.
The informational sessions were designed to help the interested
public understand the proposed rule and provide a forum to answer
questions. The BLM communicated with attendees that comments would not
be collected at the informational sessions due to the logistical
feasibility of accurately and comprehensively recording comments in
those venues. Participants were given both the Regulations.gov website
and the mailing address for comment submission, and BLM representatives
were available to answer questions about how to submit comments. The
agency did not receive any questions during information sessions that
were not written in English.
The BLM worked with communities within the Reserve to host in-
person public comment meetings. We have heard on numerous occasions
through other project outreach efforts that submitting public comments
online or through the mail often poses a challenge to these
communities. To facilitate greater participation, we offered
opportunities for community members at these meetings to submit their
comments to the record through comment cards or orally through a
transcriber.
Comments on public engagement for the 2022 IAP:
Commenters expressed their opinion that the BLM incorrectly relied
on the public comment process that informed the 2020 IAP ROD and noted
that the BLM should have conducted NEPA review for the proposed rule.
Commenters noted their opinion that the BLM streamlined the public
involvement process and the actual impacts of the rule by claiming that
it is administrative in nature, thus dismissing the need for additional
stakeholder input. Commenters also noted their opinion that the rule
vastly alters major Federal planning processes and land management
standards that were developed using robust public input and that if the
BLM wants to move forward with a rule that alters existing Federal land
management, then the agency must acknowledge the public involvement
process requirements at a minimum.
The BLM received comments stating that ``The State [of Alaska]
strongly opposes and finds it disingenuous for BLM to consider and
describe stakeholder engagement during the NPR-A IAP relevant
stakeholder engagement and as justification for the need of the
proposed rule.''
BLM Response: The BLM did not rely on the IAP public comment
process as the public comment for this rule. Rather, the BLM provided
for public comment on the proposed rule as required by the APA. With
respect to NEPA compliance for this rulemaking, it is relevant that the
current IAP was supported by an extensive NEPA analysis--including
preparation of an EIS. The final rule does not alter any current on-
the-ground management, and it meets the criteria set forth at 43 CFR
46.210(i) for a Departmental categorical exclusion in that this rule is
``of an administrative, financial, legal, technical, or procedural
nature.'' Additionally, the final rule does not involve any of the
extraordinary circumstances listed in 43 CFR 46.215 that would preclude
the application of the categorical exclusion. As such, the BLM has
complied with NEPA by relying on this categorical exclusion.
E. Tribal Consultation
On August 25, 2023, the BLM invited via mail 45 Tribes and 30
Alaska Native Corporations to engage in consultation regarding the
proposed NPR-A rule. Since the announcement of the proposed rule, we
have continued to offer consultation to Native Village of Atqasuk,
Atqasuk Corporation, Village of Wainwright, Olgoonik Corporation,
Native Village of Nuiqsut, Kuupik Corporation, Native Village of
Barrow, UIC, ICAS, and ASRC. We met with the Mayor of Atqasuk on
October 31, Native Village of Nuiqsut on November 1, ICAS on November 3
and February 6, Village of Wainwright on November 21, Olgoonik
Corporation on December 19, ASRC on December 21, and Kuukpik on
February 1. In addition, staff met and discussed the proposed rule with
the NPR-A Working Group (consisting of representatives from North Slope
local governments, Native corporations, and Tribal entities, <a href="https://www.blm.gov/programs/energy-and-minerals/oil-and-gas/about/alaska/NPR-A/npr-a_working_group">https://www.blm.gov/programs/energy-and-minerals/oil-and-gas/about/alaska/NPR-A/npr-a_working_group</a>) on September 26, October 17, and December 1. We
also held in-person public meetings in Nuiqsut, Utqiagvik and
Wainwright where verbal comment was recorded, along with three
informational sessions--one in Anchorage and two virtual. The BLM will
continue to engage in consultation with Tribes and Alaska Native
Corporations after the final rule is published.
Public Comments on Tribal Consultation
Commenters expressed their opinion that the Alaska Native
Corporations and the federally Recognized Tribes of Alaska were not
properly consulted during the rulemaking process. Commenters expressed
their opinion that the BLM did not comply with E.O. 13175, Secretary's
Order 3043, President Biden's ``Memorandum on Tribal Consultation and
Strengthening Nation-to-Nation Relationships'' and ``Memorandum on
Uniform Standards for Tribal Consultation,'' and the DOI Policy Manual
512 DM 4 and 5. Comments stated that the BLM letter to Alaska Tribes
and Alaska Native Corporations was sent 7 business days before the
proposed rule's publication which ``fails to meet the numerous
consultation requirements detailed at length'' in the Executive order
and Memoranda listed above.
Commenters expressed that because the rule was published during
fall whaling season, ``What little
[[Page 38720]]
consultation or public meeting process did occur was hastily convened
with little to no opportunity for local communities to receive timely
notice.''
Commenters requested that the BLM engage in meaningful
communication and consultation with local villages and Tribes to ensure
the new regulations meet the needs and concerns of the communities who
rely on the Reserve. Comments requested that the BLM consultation be
more inclusive than just the federally recognized Tribes and ANSCA
corporations. One commenter stated: ``Also, the rule seems to treat
ANCSA corporations the same as Tribes which needs further
clarification.''
Another commenter stated: ``BLM's efforts to avoid working with
local stakeholders of the NPR-A is almost impressive in its breadth.
Not only has the State been excluded, but also leaders from impacted
NPR-A Alaska Native communities, the North Slope Borough, the BLM-
created NPR-A Working Group, the congressionally established ASRC, the
tribal representatives from the ICAS, the Voice of the Arctic Inupiat
(VOICE), and the general public of Alaska and residents of the NPR-A.
These process deficiencies are especially stark after so many prior
NPR-A-focused planning and permitting efforts featured comprehensive
consultation and process. Conversely, this may be the North Slope's
most disconnected and disingenuous public process in the modern era.''
BLM Response: Please see our response to similar comments in the
discussion of Public Engagement above. We understand that some
commenters found the public comment period dissatisfying. We received
very helpful input and our outreach complied fully with applicable law
and policy.
In addition, 512 DM 6 (<a href="https://doi.gov/sites/doi.gov/files/elips/documents/512-dm-6.pdf">https://doi.gov/sites/doi.gov/files/elips/documents/512-dm-6.pdf</a>) outlines requirements for consultation between
appropriate ANCSA Corporation officials and Department officials. While
not considered government-to-government consultation, it is the policy
of the Department to recognize and fulfill its legal obligations to
consult with ANCSA Corporations on the same basis as Alaska Native
Tribes. To the extent that concerns expressed by a federally recognized
Tribe and an ANCSA Corporation substantively differ, officials shall
give due consideration to the rights of sovereignty and self-government
of the Tribe, and to the unique legal status and rights of the ANCSA
Corporation.
In its many years of engaging with North Slope communities, the BLM
has gained a deep understanding of the connection those communities
have with the NPR-A. For example, for the I[ntilde]upiat of the North
Slope, ``cultural resources are not merely places or things but also
provide a link between North Slope history, I[ntilde]upiat culture and
values, subsistence activities, and the biological and physical
environment. These resources have spiritual and cultural importance to
residents of the North Slope, and their protection is of utmost
importance to the I[ntilde]upiat.'' \5\ Contemporary I[ntilde]upiaq
values, including respect for nature, hunting traditions, and family
and kinship, are ``inextricably linked with all facets of
I[ntilde]upiaq life,'' but ``none more so than subsistence hunting and
harvesting traditions. Maintaining and passing down cultural values,
including knowledge of subsistence hunting and harvesting methods,
traditions, and places, is of utmost importance to North Slope
residents.'' \6\ ``The I[ntilde]upiaq people's relationship to the land
is characterized by . . . subsistence traditions . . . ; thus, to the
I[ntilde]upiat, protecting traditional lands and waters and the wild
resources that inhabit them is essential to maintaining cultural
traditions, knowledge, and identity. Today, the I[ntilde]upiat are
continuously adapting and responding to various forces of change that
challenge their ability to protect these lands and waters and that
contribute to social stress within communities.'' \7\ Among those
forces of change is oil and gas development. ``Given the historical and
unique nature of the economic, social, and cultural value Alaska
Natives place on subsistence resources in the planning area and the
importance of these resources to the nutritional health and food
security of Alaska Natives,'' the adverse impacts of oil and gas
development are predominately borne by Alaska Natives residing in
communities that utilize subsistence resources from the NPR-A.\8\
---------------------------------------------------------------------------
\5\ BLM, NPR-A Final IAP/EIS (June 2020), section 3.4.2.,
available at <a href="https://eplanning.blm.gov/public_projects/117408/200284263/20020342/250026546/Volume%201_ExecSummary_Ch1-3_References_Glossary.pdf">https://eplanning.blm.gov/public_projects/117408/200284263/20020342/250026546/Volume%201_ExecSummary_Ch1-3_References_Glossary.pdf</a>.
\6\ Id. section 3.4.4.
\7\ Id.
\8\ Id. section 3.4.5.
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F. General Public Comments
General Comments About the Rule
Comments: Commenters expressed support that the proposed rule would
provide enhanced protection for natural resources for future
generations, including wildlife and biodiversity, fragile Arctic
environments, and Alaska's unique ecosystem. Commenters believed that
the proposed rule would help the BLM address changing conditions,
including climate change, improve upon standards and procedures to
protect surface values and significant resource values, promote
transparency and inclusivity, and would overall result in a more
comprehensive plan to manage the Reserve.
BLM Response: We appreciate the recognition of these goals of the
proposed rule, and we agree the proposed rule would advance these
outcomes. The BLM made changes in the final rule to strengthen resource
protection measures and clarify standards and procedures for
implementing the rule with transparency and community engagement.
Comments: The BLM received comments expressing concerns that the
proposed rule would restrict oil and gas development and could harm
local economies that are reliant on oil and gas revenue. Commenters
expressed concern that the proposed rule may be contrary to
congressional direction set forth in the NPRPA and may not fulfill the
purposes of the Reserve. We appreciate commenters raising these
concerns through the rulemaking process, and the final rule
incorporates changes to clarify the BLM's statutory mandate under the
NPRPA for managing the Reserve.
BLM Response: As detailed in discussion and comment responses
throughout this preamble to the final rule, the BLM believes managing
oil and gas leasing and production under this regulatory framework will
best enable the BLM to meet its requirements to ensure protection of
environmental, fish and wildlife, historical, and scenic values in the
Reserve and will benefit local communities. This rule balances all
aspects of the BLM's statutory mandate for managing the NPR-A.
Comments: The BLM also received comments generally addressing
recreation in the Reserve and requesting more discussion on how
recreation activities and experiences would be affected by the rule.
BLM Response: We did not address recreation directly under the
framework of the rule because the rule only addresses management of oil
and gas activities in the Reserve. As the BLM implements the rule,
there may be indirect effects on recreation activities in the Reserve,
such as fewer impacts on recreation experiences associated with oil and
gas production due to decisions that minimize and mitigate those
impacts on surface resources in the Reserve.
[[Page 38721]]
Comments About Climate Change
Comments: The BLM received comments discussing the impacts of
climate change already being realized in the Reserve, such as impacts
to wildlife habitat and permafrost and the potential loss of associated
subsistence food sources. Commenters urged the development of a
comprehensive analysis of the climate impacts of Western Arctic oil and
gas production. Commenters recommended that an updated climate analysis
should incorporate adaptive management practices, which would allow the
BLM to manage the Reserve for improved climate resiliency.
Commenters requested that the BLM ensure decisions are consistent
with Council on Environmental Quality (CEQ) guidance, Environmental
Protection Agency (EPA) guidance, and Secretarial Order 3399 regarding
addressing climate impacts. In particular, commenters recommended that
the BLM include a requirement in the rule to analyze the social cost of
carbon, consider the reasonably foreseeable effects of climate change
on infrastructure, and model greenhouse gas emissions. Commenters
proposed various frameworks and approaches for incorporating climate
analysis and emissions management into the rule.
BLM Response: This rule is focused on impacts to surface values of
the Reserve and implementing the BLM's statutory obligation to protect
those values when authorizing oil and gas leasing and production. Thus,
the BLM is not analyzing or specifically considering the climate
impacts of oil and gas development as part of the rulemaking process.
We recognize that the changing conditions of surface values in the
Reserve are being driven in a significant way by climate change and
that changes due to climate change are occurring at an accelerated rate
in the Arctic compared to other parts of the planet. Because of the
dynamic nature of those impacts on surface resources, however, the BLM
must consider and address climate impacts during the implementation of
the rule. For example, the BLM will analyze the condition of surface
resources, including changing conditions caused by climate impacts,
when determining when to update the IAP. We further note that the BLM
must analyze and consider greenhouse gas emissions, and climate impacts
in general, when conducting NEPA analysis for oil and gas leasing and
production activities.
Comments: Some commenters argued that the NPRPA creates an
obligation for the BLM to limit greenhouse gas emissions from
activities in the Reserve and expressed concern that the proposed rule
fails to ``mitigate reasonably foreseeable and significantly adverse
effects on the surface resources'' by not addressing emissions from
recently approved oil and gas leases.
BLM Response: The BLM agrees that the provisions of the NPRPA that
require the BLM to mitigate reasonably foreseeable and significantly
adverse effects on surface resources and to assure maximum protection
for significant resource values in Special Areas require the BLM to
analyze and consider greenhouse gas emissions when it is considering
new oil and gas activity in the Reserve. As described above, such
analysis and consideration will occur as part of the NEPA process both
for any changes to the IAP and for project-level approvals.
Comments About Wildlife
Comments: Commenters provided detailed information about fish and
wildlife habitats in the Reserve and the impacts of oil and gas
production on specific species and their habitats. In particular,
comments documented information about caribou in the Utukok Uplands and
their behavioral responses to oil and gas development, as well as polar
bear populations within the Reserve and the impacts of oil and gas
activities on the species. Commenters recommended the rule include
additional protections to build resilient habitats for plants and
wildlife, such as establishing connectivity zones between Special
Areas. Comments expressed concern that existing mitigation measures do
not ensure maximum protection for subsistence of the Teshekpuk Caribou
Herd.
BLM Response: The BLM appreciates the wealth of information
provided by commenters about wildlife species and habitats in the
Reserve and impacts occurring from oil and gas activities. While
analyzing specific habitat areas or mitigation measures is outside the
scope of this rulemaking process, the BLM believes the final rule
strengthens provisions that will support the BLM's management of
important wildlife habitat and other surface resources in the Reserve.
For example, the final rule requires that all Special Area designation
and amendment processes will 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. The final rule also details procedures for the BLM to
avoid the adverse effects of proposed oil and gas activities on the
significant resource values of Special Areas.
Comments About Oil and Gas Production
Comments: The BLM received comments stating that the proposed rule
disregards congressional intent that the BLM manage the Reserve for oil
and gas production, including the NPRPA's requirement that the BLM
conduct an expeditious program of competitive leasing of oil and gas in
the Reserve. Commenters cited the U.S. Court of Appeals for the Ninth
Circuit, which commenters assert has held that the NPRPA did not give
the Secretary the discretion not to lease, but rather that the
Secretary is given the discretion to provide rules and regulations
under which leasing would be conducted.
BLM Response: We believe the final rule appropriately reflects the
BLM's mandates in the NPRPA to conduct an oil and gas leasing and
production program in the Reserve while protecting environmental, fish
and wildlife, and historical and scenic values within the Reserve. In
the same section that establishes an oil and gas leasing program in the
Reserve, the NPRPA explicitly directs the BLM to ``provide for such
conditions, restrictions, and prohibitions as . . . necessary or
appropriate to mitigate reasonably foreseeable and significantly
adverse effects on the surface resources'' of the Reserve when
conducting the oil and gas program (42 U.S.C. 6506a(b)). Further the
BLM updated Sec. 2361.40 in the final rule to specifically reference
the BLM's mandate under the NPRPA to assure maximum protection of
significant resource values in Special Areas ``consistent with the
requirements of the NPRPA for exploration and production of the
Reserve.'' This is consistent with Northern. Alaska Environmental.
Center v. Kempthorne, 457 F.3d 969 (9th Cir. 2006), which states only
that the government could not forbid all oil and gas leasing throughout
the Reserve, not that it lacks discretion not to lease in some areas.
Indeed, in that case, the court upheld an IAP that deferred leasing in
a significant portion of the NPR-A.
Comments: The BLM received comments discussing the maximum
protection requirements in the proposed rule and the context of the
statutory language. Commenters stated that the maximum protection
requirement in the NPRPA was not intended to create a presumption
against oil and gas activities, but rather to ensure that exploration
operations would be conducted to minimize adverse impacts on the
environment. Commenters
[[Page 38722]]
argued that the maximum protection provisions in the proposed rule are
contrary to the plain language of the NPRPA, congressional intent and
the 1981 Appropriations Act.
BLM Response: The NPRPA requires the BLM to conduct oil and gas
activities in Special Areas ``in a manner which will assure the maximum
protection of [any significant subsistence, recreational, fish and
wildlife, or historical or scenic] values to the extent consistent with
the requirements of this Act.'' The Conference Report on the NPRPA
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 provisions of the rule implementing this requirement enable the
agency to fulfill its statutory duty to protect Special Areas. We note
that maximum protection measures are not an objective standard but
rather are established in the context of resource needs and other uses,
including valid existing rights and ongoing oil and gas production in
the Reserve. As established in the existing regulation and carried
forward to the final rule, maximum protection measures can include
limiting types of vehicles and aircraft, requiring use of alternative
routes, and rescheduling activities. They can also include restrictions
on oil and gas infrastructure or closures to certain oil and gas
activities, consistent with prescriptions for the Special Areas and
existing leases. Maximum protection measures are and will continue to
be developed through public processes with opportunities for public
input and consultation with Tribes, ANCSA corporations, and local
governments.
Comments: Commenters requested a more detailed explanation of how
the rule would apply to and affect existing leases, operations, and
activities. Commenters expressed concerns that the rule would adversely
affect future proposals for development activities and impermissibly
conflict with existing leases, by which the BLM has granted a right to
build infrastructure and produce oil. Commenters acknowledged existing
leases can be subject to reasonable regulations but argued that the
proposed rule is not a reasonable restriction because it would create
uncertainty about permit approval. Commenters suggested that leases may
expire while the BLM delays action to document uncertainty or denies a
permit on the grounds that the proposed infrastructure is not
practicable or essential. Other comments discussed that the BLM has
authority to take actions it determines are necessary to protect the
environment in the Reserve, including through regulatory actions, and
that this is acknowledged in the standard language in BLM leases.
BLM Response: The rule includes specific protections for valid
existing rights. For example, the final rule allows for new permanent
infrastructure on lands within Special Areas that are allocated as
unavailable to new infrastructure if necessary to comport with the
terms of a valid existing lease. The final rule similarly makes clear
that the presumption against new oil and gas activities in Special
Areas would be overcome by the need to comport with the terms of a
valid existing lease.
At the same time, we note that, while the terms of an existing
lease and approved development project or permit will not be affected
by the rule, a valid lease does not entitle the leaseholder the
unfettered right to drill wherever it chooses or categorically preclude
the BLM from considering alternative development scenarios within
leased areas, nor does it give the leaseholder the right to produce all
economically recoverable oil and gas on the lease. Further, the BLM can
condition permits for drilling on implementation of environmentally
protective measures and could even deny a specific application
altogether if it were to propose development in a particularly
sensitive area, and where mitigation measures would not be effective.
Future development of an existing lease, by its terms, could be subject
to additional terms and conditions. For example, the standard lease for
activities in the Reserve states, ``An oil and gas lease does not in
itself authorize any on-the-ground activity'' and notes that more
restrictive stipulations may be added. Similarly, a standard lease
stipulation entitled ``Conservation of Surface Values for NPR-A
Planning Area Land'' provides: ``Operational procedures designed to
protect resource values will be developed during Surface Use Plan
preparation, and additional protective measures may be required beyond
the general and special stipulations identified in the above-referenced
documents.''
Comments: The BLM received comments expressing concern that oil and
gas activities in the Reserve cause negative effects on the environment
and wildlife, such as land degradation, air pollution, and threats to
ecosystems, all of which affect biodiversity and human health.
Commenters recommended the BLM develop a comprehensive cumulative
effects analysis and whole Arctic conservation strategy, referencing a
2003 National Research Council report on cumulative effects of oil and
gas activities on Alaska's North Slope. Commenters requested that the
BLM implement consistent monitoring practices to ensure it has
comprehensive data to use in decision-making, which would enable more
effective management of oil and gas activities in the Reserve.
BLM Response: The BLM believes the final rule supports decision-
making that will provide meaningful protections for environmental and
wildlife values in the Reserve from the impacts of oil and gas
exploration and production, consistent with the agency's statutory
obligation to mitigate reasonably foreseeable and significantly adverse
effects on the surface resources of the Reserve. In doing so, the rule
will support the BLM's ability to manage for ecosystem services, and
particularly their contributions to subsistence use, as the agency
makes management decisions under the framework of the rule. (See, e.g.,
Guidance For Assessing Changes In Environmental And Ecosystem Services
In Benefit-Cost Analysis, Office of Management and Budget (Feb. 2024),
available at <a href="https://www.whitehouse.gov/wp-content/uploads/2024/02/ESGuidance.pdf">https://www.whitehouse.gov/wp-content/uploads/2024/02/ESGuidance.pdf</a>.) The final rule establishes that in managing both the
significant resource values of Special Areas and the surface resources
of the Reserve broadly, the BLM will adopt conditions, restrictions, or
prohibitions that may involve conditioning, delaying action on, or
denying some or all aspects of future and proposed oil and gas
activities. For example, the BLM might condition or deny development if
an operator proposes infrastructure along the Colville River if it is
feasible to locate the infrastructure outside of the area closed to
protect wildlife and subsistence activities, even if the operator would
prefer the location closer to the river. It is not within the scope of
this rulemaking process to develop a cumulative effects analysis or
establish monitoring protocols, which are better suited to an IAP
amendment process.
G. Summary of Changes in the Final Rule
The following paragraphs summarize changes the BLM made from the
proposed rule to the final rule. More detailed explanations for the
changes are found in the responses to comments and the description of
the final rule in section IV of this preamble to the final rule.
[[Page 38723]]
Section 2361.3 Authority
The BLM added references to FLPMA and ANILCA in the Authorities
section in the final rule, including the caveat that the land use
planning and wilderness study requirements of FLPMA do not apply to
lands within the Reserve, pursuant to 42 U.S.C. 6506a(c).
Section 2361.5 Definitions
The BLM revised the definition of ``infrastructure'' in the final
rule to clarify that the term means, ``a permanent or semi-permanent
structure or improvement that is built to support commercial oil and
gas activities on BLM-administered lands within the Reserve, such as
pipelines, gravel drilling pads, man camps, and other structures or
improvements.'' The revised definition further clarifies that
``infrastructure'' does not include structures or improvements that
will primarily be used by and provide a benefit to communities located
within or in close proximity to the Reserve.
The BLM clarified in the final rule that the term ``significant
resource values'' refers to surface values that the BLM identifies as
significant, in order to ensure consistency with the language in the
NPRPA. Similarly, the BLM made minor clarifications in the definition
of the term ``Special Areas'' to ensure consistency with the language
in the NPRPA. The final rule defines ``Special Areas'' as: ``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 surface values, to the extent consistent with the
requirements of the Act for the exploration and production of the
Reserve.''
The final rule incorporates the definition for the term ``co-
stewardship'' that is used in BLM Permanent Instruction Memorandum No.
2022-011 (Co-Stewardship with Federally Recognized Indian and Alaska
Native Tribes Pursuant to Secretary's Order 3403).
Section 2361.10 Protection of Surface Resources
The BLM added ``oil and gas'' before the word ``activities''
throughout the section to clarify that the requirements of this rule
only apply to oil and gas activities. The final rule replaces
``Bureau'' with ``authorized officer'' to provide clarity about the BLM
official responsible for implementing requirements in the rule.
The BLM removed proposed paragraph (b)(3) from the final rule
because it is duplicative of environmental analysis requirements under
NEPA. The paragraph had provided that, in assessing effects of a
decision concerning proposed activity in the Reserve, the Bureau would
identify and evaluate any reasonably foreseeable effects of its
decision, including effects 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.
Section 2361.20 Existing Special Areas
The BLM did not amend the final rule in response to specific
comments regarding the significant resource values, boundaries, or
management of existing Special Areas. The rule merely codifies the
existing Special Areas and their significant resource values and
management as currently established in Secretarial decisions and the
2022 IAP. The final rule establishes a process in Sec. 2361.30 for
designating, amending, and de-designating Special Areas that will be
followed to make changes to Special Areas.
Section 2361.30 Special Areas Designation and Amendment Process
The BLM reorganized Sec. 2361.30 in the final rule, with a new
paragraph (a) that outlines requirements applicable to all processes
that will designate, de-designate, or otherwise change boundaries or
management of Special Areas. These provisions require that the BLM: (1)
rely on the best available scientific information, including Indigenous
Knowledge; (2) provide the public and interested stakeholders with
meaningful opportunities to participate in the evaluation process; (3)
consult with any federally recognized Tribes and ANCSA corporations
that use the affected Special Area for subsistence purposes or have
historic, cultural or economic ties to the Special Area; and (4) base
decisions solely on the presence or absence of significant resource
values. This new paragraph will provide more consistency to all
decision-making processes for Special Areas.
The final rule changes the Special Area evaluation period from 5 to
10 years, while specifying that the BLM may conduct the evaluation
sooner if the authorized officer determines that changing conditions
warrant earlier review. For example, the BLM may decide to conduct an
evaluation in less than 10 years upon receiving nominations or
recommendations for Special Area changes. The BLM believes this change
addresses concerns about agency and community capacity while ensuring
regular reviews occur to maintain an inventory of resource conditions
and make management changes as appropriate. The final rule specifies
that as part of the evaluation, the BLM will determine whether to
require additional measures or strengthen existing measures to assure
maximum protection of significant resource values within existing
Special Areas.
The BLM also revised the final rule to provide more clarity and
certainty around the interim measures provision. The final rule
clarifies that interim measures may be implemented at any time after
BLM receives a recommendation to designate or modify a Special Area.
The final rule also clarifies that any interim measures must be
consistent with the governing management prescriptions in the IAP, and
the BLM is required to provide public notice that interim measures are
in place and reassess such measures to determine if they are still
needed if they remain in place for more than 5 years.
Section 2361.40 Management of Oil and Gas Activities in Special Areas
Section 2361.40 is revised in the final rule to state the
management priority within Special Areas is to assure maximum
protection of significant resource values, ``consistent with the
requirements of the NPRPA for exploration [and production] of the
Reserve.'' The BLM believes this clarification addresses public
comments requesting additional consistency with the language of the
NPRPA and reflects the BLM's statutory mandate for managing the
Reserve.
The final rule clarifies that the BLM will identify and adopt
maximum protection measures for each significant resource value that is
present in a Special Area when Special Areas are designated. The BLM
will also update maximum protection measures as appropriate thereafter,
including in the IAP, lease terms, and permits to conduct oil and gas
activities. The final rule also includes maximum protection measures
that are identified in the existing regulation but had been eliminated
in the proposed rule, as well as additional examples of categories of
measures.
On lands within Special Areas that are allocated as closed to
leasing or unavailable to new infrastructure, the final rule allows for
the BLM to approve new permanent infrastructure related to existing oil
and gas leases only if such infrastructure is necessary to comport with
the terms of a valid existing lease. This provision removes language in
the proposed rule that further specified that the infrastructure must
be essential for exploration or development activities
[[Page 38724]]
and no practicable alternatives exist which will have less adverse
impact on significant resource values of the Special Area.
The final rule provides clarity around how the presumption against
new leasing and new infrastructure on lands within Special Areas that
are allocated as open for those activities will be addressed through
the environmental review process. The rule provides that as part of the
environmental analysis, the BLM will document a justification for
overcoming the presumption, such as if the proposed infrastructure is
necessary to comport with the terms of a valid existing lease, or if it
will primarily be used by and provide a benefit to communities located
within or in close proximity to the Reserve, and the proposal has been
conditioned to avoid, minimize, or otherwise mitigate adverse effects.
The public will have an opportunity to review and comment on any
justification for overcoming the presumption.
The BLM reorganized Sec. 2361.40 to clarify the requirements for
preparing an environmental analysis of proposed leasing, exploration,
development, or new infrastructure in Special Areas, and reaching a
final decision. These procedures are set forth in a revised Sec.
2361.40(g). The BLM must provide meaningful opportunities for public
participation, including responding to comments, and consult with
federally recognized Tribes and ANCSA corporations that use the
affected Special Area for subsistence purposes or have historic,
cultural, or economic ties to the Special Area. The BLM must evaluate
potential adverse effects on significant resource values and consider
measures to avoid, minimize, or otherwise mitigate adverse effects to
achieve maximum protection of significant resource values. The BLM must
also document and consider uncertainty about potential adverse effects
on significant resource values, and account for any uncertainty when
taking actions taken to avoid, minimize, or mitigate adverse effects.
If the BLM determines through the environmental analysis that the
proposal cannot avoid adverse effects on significant resource values in
a Special Area, then the BLM must prepare a Statement of Adverse
Effect. The requirement to prepare a Statement of Adverse Effect was
included in the proposed rule, but the final rule provides more clarity
around how it fits within the environmental review process. The
Statement of Adverse Effect will be incorporated into the environmental
analysis and provided to the public for review and comment.
Lastly, the BLM updated the maps for the final rule so that they
show the boundaries of the existing Special Areas on the maps from the
2022 IAP showing the current allocations for oil and gas leasing and
infrastructure. The maps depict the exact data from the IAP ROD, and do
not change any designations or allocations from the 2022 IAP.
Section 2361.50 Management of Subsistence Uses Within Special Areas
The final rule removes the phrase ``to the extent consistent with
assuring maximum protection of all significant resource values that are
found in such areas'' from this section, so paragraph (b) now simply
reads: ``The Bureau will provide reasonable access to and within
Special Areas for subsistence purposes.'' This phrase was causing
confusion and was unnecessary because Sec. 2361.30 requires the BLM to
adopt measures to assure maximum protection of significant resource
values when designating Special Areas.
The BLM also revised the language in this section to refer to
``reasonable access'' instead of ``appropriate access'' for consistency
with the language in section 811 of ANILCA.
Section 2361.60 Co-Stewardship Opportunities in Management of Special
Areas and Subsistence
In the final rule, the title of this section is revised from ``Co-
stewardship opportunities in Special Areas.'' The first sentence is
also revised to add ``and subsistence resources throughout the
Reserve.'' Those revisions reflect that the BLM will seek co-
stewardship opportunities not just in managing Special Areas, but also
in managing subsistence resources more broadly.
The first sentence is also revised to add ``federally recognized''
to clarify that the BLM engages in co-stewardship only with federally
recognized Tribes. Separately, the Bureau may partner with Alaska
Native Claims Settlement Act corporations, local governments, or
organizations as provided by law, which will not be co-stewardship
arrangements but a different type of partnership. The text of the rule
has been revised to make this distinction clearer.
IV. Section-by-Section Discussion and Response To Comments on
Individual Provisions
Section 2361.1--Purpose
Existing and Proposed Regulations
Existing Sec. 2361.0-1 is redesignated to Sec. 2361.1 in the
final rule. 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 Reserve. The BLM proposed to revise Sec. 2361.1 to establish a
two-part purpose for the rule to more accurately and completely reflect
the scope of the regulations. The first purpose was 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 [Reserve].''
The second purpose outlined in the proposed rule was 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
reserve.'' The standards and procedures to implement these two
provisions will also fulfill the BLM's mandate to take action necessary
to prevent unnecessary or undue degradation under FLPMA, 43 U.S.C.
1732(b).
Public Comments on Sec. 2361.1
Commenters expressed support for the proposed revisions to Sec.
2361.1 to provide needed clarity, purpose, and priority for the
protection and management of Special Areas. We agree that the changes
will help.
Commenters recommended that the BLM include oil and gas leasing and
production as a purpose of the regulations. We decline this suggestion.
Regulations for oil and gas leasing and production within the Reserve
are covered in 43 CFR part 3130.
Commenters requested that the BLM revert to the purpose in the
original version of Sec. 2361.1. We decline this request. The existing
regulations do not reflect the full scope of the BLM's statutory
obligations or the scope of this rule. Proposed Sec. 2361.1 accurately
and completely reflected that scope.
Commenters requested that the Purpose section include language that
is in the current version of 42 U.S.C. 2361.0-2, which recites that the
objective of the regulations is to provide environmental protection
``to the extent consistent with the requirements of the Act.'' We
believe that is unnecessary. The proposed rule included language in the
Purpose section which stated that the regulation was ``pursuant to and
consistent with the provisions of the Naval Petroleum Reserves
Production
[[Page 38725]]
Act of 1976 (90 Stat. 303; 42 U.S.C. 6501 et seq.).''
The BLM received comments requesting that the rule explicitly state
that the purpose of the regulations is to provide standards and
procedures to cease any new oil and gas activities in the Reserve and
execute a phase down of all existing oil and gas extraction. The
comments suggest that including this language would allow the BLM to
meet its statutory requirement to ensure mitigation of reasonably
foreseeable and significantly adverse effects and prevent unnecessary
or undue degradation. This comment's recommendation would not be
consistent with the NPRPA, which directs the Secretary to implement an
oil and gas leasing program in the Reserve.
Description of the Final Rule
The BLM did not change this section of the proposed rule in the
final rule. The final rule states the purpose of the regulations 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.
Section 2361.0-2--Objectives
Existing and Proposed Regulations
The existing Sec. 2361.0-2 states the objectives of the
regulations. The BLM proposed to remove this section because the
proposed revision of Sec. 2361.1 would make it redundant.
Public Comments on Existing Sec. 2361.0-2
The BLM received comments requesting that it not amend the
Objectives section because the original Objectives section clarified
that environmental protections are designed to control exploration and
production activities. Commenters expressed the opinion that the
existing provision appropriately states the objective of the NPRPA and
implements regulations based on Congress's intent to provide for the
protection of the environmental and other surface values consistent
with the exploration and development of oil and gas resources within
the Reserve. Commenters suggested the proposed changes to the
Objectives section disregard the BLM's primary purpose under the NPRPA
of expeditious leasing, exploration, and development of the Reserve.
Commenters recommended the Objectives include the clause: ``. . .
maximum protection of such surface values to the extent consistent with
the requirements of this Act for the exploration of the reserve'' in
accordance with the BLM's obligations under the NPRPA and associated
law.
BLM Response: We did not make changes in response to these
comments. The existing Sec. 2361.0-2 was removed because the proposed
rule's revision of Sec. 2361.1 made it redundant. The proposed rule
included language in the Purpose section stating that the regulation is
``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.).''
Description of the Final Rule
The BLM did not change this section of the proposed rule in the
final rule. The final rule removes Sec. 2361.0-2 from the regulations.
Section 2361.3--Authority
Existing and Proposed Regulations
Existing Sec. 2361.0-3 is redesignated to Sec. 2361.3 in the
final rule. The existing rule identifies the NPRPA as the only
statutory authority for the regulations. In the proposed rule, the BLM
included the Department of the Interior Appropriations Act, Fiscal Year
1981 (Pub. L. 96-514), which amended the NPRPA and instructed the
Secretary to mitigate reasonably foreseeable and significantly adverse
effects on the surface resources in the Reserve (codified at 43 U.S.C.
6506a).
Public Comments on Sec. 2361.3
Commenters recommended the rule include ANILCA as an authority for
the rule, in part because section 810 of ANILCA governs subsistence use
on public lands in Alaska. Commenters also pointed out that FLPMA
generally applies to public land management in Alaska, rather than
section 202. We agree that referring to ANILCA is helpful. Other than
the land use planning provisions of section 202 and the wilderness
inventory requirements in section 603, FLPMA applies to lands within
the Reserve.
Description of the Final Rule
The BLM changed the final rule in response to comments, adding
references to FLPMA and ANILCA in the Authorities section in the final
rule, including the caveat that the land use planning and wilderness
study requirements of FLPMA do not apply to lands within the Reserve,
pursuant to 42 U.S.C. 6506a(c).
Section 2361.4--Responsibility
Existing and Proposed Regulations
Existing Sec. 2361.0-4 is redesignated to Sec. 2361.4 in the
final rule.
The BLM proposed to modify the statement in the existing
regulations that, under the NPRPA, the BLM is responsible for managing
surface resources in the Reserve to add that BLM is also responsible
for managing the subsurface mineral resources in the Reserve. The
proposed rule also added that the BLM is responsible for assuring
maximum protection of Special Areas' significant resource values. The
proposed rule deleted paragraph (b) because the U.S. Geological Survey
is no longer responsible for managing exploration in the Reserve.
Secretarial Order 3071, 47 FR 4751 (Feb. 2, 1982); Secretarial Order
3087, 48 FR 8982-83 (Mar. 2, 1983).
Public Comments on Sec. 2361.4
Comment: The BLM received a comment stating that the BLM is
responsible for managing subsurface resources, and therefore the
commenter requested that the rule include a plan for periodic mineral
surveys of the Reserve so the BLM can more effectively govern
subsurface resources beyond just oil, gas, and coal.
BLM Response: We decline this suggestion because it goes beyond the
scope of this rule. In addition, even if mineral surveys were within
the scope of BLM's typical activities, they would be inappropriate
here. The NPRPA withdrew the Reserve from all forms of entry and
disposition under the public land laws, including the mining and
mineral leasing laws, with the only exception being certain gravel
sales. The 1981 Appropriations Act amended the NPRPA to allow for the
oil and gas leasing program (42 U.S.C. 6502).
Comment: Commenters recommended removing the term ``environmental
degradation'' from the section but did not provide an explanation for
the change.
BLM Response: The BLM declines to make this change. The current
regulation at Sec. 2361.0-4 uses the term ``environmental
degradation,'' and the use of this term in Sec. 2361.0-4 is consistent
with the BLM's duties and obligations under applicable laws, including
the NPRPA, FLPMA, and ANILCA.
[[Page 38726]]
Comment: Commenters recommended that because the proposed changes
to the section discuss the BLM's responsibility for assuring maximum
protection of Special Areas' significant resource values, then the
section should also discuss the need to balance resource protection
with the responsibility to develop the Reserve's oil and natural gas
resources.
BLM Response: While the BLM must ``conduct an expeditious program
of competitive leasing of oil and gas'' in the Reserve, oil and gas
leasing within the Reserve is addressed in 43 CFR part 3130. Hence, it
is not necessary to include that in the Responsibility section for this
rule.
Description of the Final Rule
The BLM did not change this section of the proposed rule in the
final rule. Section 2361.4 in the final rule states that the BLM 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.
Section 2361.5--Definitions
Existing and Proposed Regulations
Existing Sec. 2361.0-5 is redesignated to Sec. 2361.5 in the
final rule.
The BLM proposed to update the definition for ``exploration'' to
ensure consistency with NPRPA's definition of ``petroleum'' (42 U.S.C.
6501); update the definition of ``Special Areas'' for consistency with
other proposed changes to the regulations; and incorporate a definition
for ``Indigenous Knowledge,'' consistent with the guidance set forth in
the Memorandum issued by CEQ and the Office of Science and Technology
Policy (OSTP) on November 30, 2022. The BLM also proposed to add new
definitions for ``Integrated Activity Plan,'' ``infrastructure,'' and
``significant resource value.''
Public Comments on Sec. 2361.5
Comment: Commenters provided a general statement of support for
Sec. 2361.6 and the new definition for ``Indigenous Knowledge,''
consistent with the guidance set forth in the Memorandum issued by CEQ
and OSTP on November 30, 2022.
BLM Response: We agree that the new definition will provide useful
direction for the BLM in taking into account Indigenous Knowledge and
add consistency in implementing CEQ and OSTP guidance.
Comment: Comments included a recommendation that the proposed
processes for collecting and utilizing Indigenous Knowledge properly
includes Alaska Native Corporations. Commenters stated that Alaska
Native Corporations have a unique congressional mandate to manage
Alaska Native lands for the benefit of their Alaska Native owners and
Alaska Native Corporations regularly utilize Indigenous Knowledge to
manage Indigenous-owned lands in Alaska. Furthermore, Alaska Native
Corporations employ Indigenous Knowledge holders who understand the
unique aspects of managing these traditional lands.
BLM Response: We decline this suggestion because the proposed
rule's definition of Indigenous Knowledge already encompasses all
Alaska Native peoples, including Alaska Native Corporations and other
Alaska Native entities, by specifying that it ``is developed by
Indigenous Peoples including, but not limited to, Tribal Nations,
American Indians, and Alaska Natives.'' Consistent with Departmental
policy found in 512 DM 6, the BLM recognizes and respects the distinct,
unique, and individual cultural traditions and values of Alaska Native
peoples and the statutory relationship between Alaska Native
Corporations and the Federal Government.
Comment: Commenters recommended that the BLM consider the following
definition of Indigenous Knowledge: ``Indigenous Knowledge 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, spiritual, and cultural systems.
Indigenous Knowledge can be developed over millennia, continues to
develop, and includes understanding based on evidence acquired through
direct contact and long-term contact with the environment and long-term
experiences, as well as extensive observations, lessons, and skills
passed from generation to generation and acquired through
multigenerational observations, lessons, and skills over time.
Indigenous Knowledge is developed by Indigenous Peoples including, but
not limited to, Tribal Nations, American Indians, and Alaska Natives''.
BLM Response: We decline this edit as it does not meaningfully
change or improve the definition and would not be consistent with the
definition being used by other Federal agencies.
Comment: Commenters requested the BLM clarify the definition of
``Indigenous Knowledge'' or how Indigenous Knowledge would be used in
the Reserve. Commenters stated that the proposed definition could be
interpreted to mean that any person or entity simply deemed
``Indigenous'' would have a claim to have Indigenous Knowledge and that
this proposed definition diminishes the knowledge of those who actually
live in the area as opposed to those who do not.
BLM Response: We decline this suggestion. The proposed rule's
definition of Indigenous Knowledge encompasses all Alaska Native
peoples, including members of Alaska Native Corporations and other
Alaska Native entities, by specifying that it ``is developed by
Indigenous Peoples including, but not limited to, Tribal Nations,
American Indians, and Alaska Natives.'' In the final rule, Indigenous
Knowledge, as well as best available information on subsistence
resources and uses, will be considered in designating, de-designating
and modifying boundaries or management of Special Areas. As a result,
the Indigenous Knowledge will need to be specific to the areas and uses
at issue, which will necessarily be focused on those informed about
resources and uses on the ground, i.e., members of local communities
and Tribes.
Comment: Commenters requested the BLM clarify in the proposed rule
how traditional knowledge will be used in conjunction with recognized
scientific practices and standards of the North Slope Borough and the
State of Alaska, particularly as those standards relate to the
development in the Arctic and the Reserve.
BLM Response: We decline this suggestion. As the proposed rule
states in Sec. 2361.30, Indigenous Knowledge is included as a part of
best available scientific information.
Comment: Commenters expressed general support for the reasoning
stated for the proposed definition of ``infrastructure.''
BLM Response: The BLM appreciates public support for the proposed
approach.
Comment: Commenters recommended amending the definition of
``infrastructure'' by omitting clauses: ``and that is not ephemeral,
such as snow or ice roads'' and ``but it does not include exploratory
wells that are drilled in a single season.'' The commenter thought
these revisions would strengthen the definition.
BLM Response: We decline this suggestion. This definition is based
on the framework set out in the IAP to identify which types of new
infrastructure are subject to prohibitions within certain areas of the
Reserve.
[[Page 38727]]
Section 1.2 of the 2022 IAP excludes single season snow and ice
infrastructure as well as exploratory wells that are drilled in a
single season. Based on comments received, the BLM clarified the
definition to provide additional detail about what qualifies as
infrastructure and what types of structures or improvements are not
considered infrastructure for the purposes of this rule.
Comment: Some commenters stated their opinion that the definition
of ``infrastructure'' may violate valid existing lease rights where a
new oil and gas location for commercial development would be
infrastructure and is restricted in multiple provisions, but
exploratory wells drilled in a single season would not be
infrastructure nor under the same restrictions.
BLM Response: The BLM disagrees with commenters' assertion. The
rule is incorporating the allocations for infrastructure from the IAP
and using a similar definition that focuses on permanent or semi-
permanent structures. Further, the final rule makes clear that new
infrastructure will not be restricted if the location of the proposed
structures or improvements is necessary to comport with the terms of a
valid existing lease.
Comment: Commenters stated that the proposed definition of
``infrastructure'' creates an arbitrary division between types of
infrastructure. Commenters noted that infrastructure built to support
science and public safety could have the same characteristics and
features as infrastructure built to support commercial oil and gas
activities and could support oil and gas activities, or vice versa. In
addition, commenters stated that infrastructure associated with oil and
gas development often includes new roads and local facilities that
benefit the community. On the North Slope, access to subsistence areas
and connectivity provided by roads is considered a benefit by many
residents. For example, roads associated with industrial development
near the Native villages of Utqiagvik and Nuiqsut have improved the
ability of residents to pursue subsistence opportunities.
BLM Response: The definition of infrastructure in the final rule
applies to permanent or semi-permanent structures or improvements that
support oil and gas activities, and does not apply to other, non-oil
and gas structures or improvements, because that term is used
specifically to implement the Special Area provision of the NPRPA, 42
U.S.C. 6504(a) (as amended), which by its terms applies only to oil and
gas exploration and production activities. Although the general
mitigation provision of this rule (Sec. 2361.10) applies only to oil
and gas activities, it is not the only tool available to the BLM for
requiring mitigation in the Reserve. The BLM has explicit and ample
authority under the NPRPA to apply mitigation requirements within the
reserve, as well as under NEPA to evaluate potential mitigation
measures as part of the analysis for proposed actions. Mitigation for
other types of activities, such as siting and construction of
infrastructure for scientific research or public safety, may be
addressed through other means, such as implementing requirements of the
IAP for non-oil and gas infrastructure or as determined through the
analysis in project-specific decisions. With regard to infrastructure
that benefits communities within the Reserve, Sec. 2361.10 of the
final rule provides that, when identifying conditions, restrictions,
and prohibitions necessary or appropriate to mitigate the reasonably
foreseeable and significantly adverse effects of proposed oil and gas
activities in the portions of the Reserve outside Special Areas, the
Bureau will fully consider community access and other infrastructure
needs. Additionally, in response to comments, the BLM revised the
restrictions on new infrastructure in Sec. 2361.40 of the final rule
to clarify that within Special Areas, infrastructure that will
primarily be used by and provide a benefit to communities located
within or in close proximity to the Reserve may be allowed provided
that appropriate measures are adopted to assure maximum protection of
significant resource values.
Comment: Commenters stated that the definition of
``infrastructure'' would allow for the authorization of temporary
infrastructure for exploration, but would delay or prevent the BLM from
authorizing infrastructure to support commercial development on
existing leases. Comments further stated that this definition may
result in a regulatory ``taking'' claim.
BLM Response: The final rule expressly allows for the authorization
of new infrastructure, as defined in Sec. 2361.5, that is necessary to
honor the terms of a valid existing lease. The final rule will
therefore not deprive a leaseholder of its rights under an existing
lease.
Comment: Commenters expressed the opinion that defining
``infrastructure'' as ``essentially limited to structures or
improvements in support of commercial oil and gas activities'' raises
concerns about what types of infrastructure could be allowed within
Special Areas and other sensitive regions. For example, ``Lease
Stipulation K-1 does not apply to intercommunity roads or other
permanent roads constructed with public funds for general
transportation purposes. While the presence and use of such roads would
have an effect on caribou and other significant resource values, it is
not clear to what extent such infrastructure would fall within the
proposed definition and thus come under the purview of maximum
protection provisions.'' Commenters also stated that additional clarity
is needed on ``where access and infrastructure could be allowed and how
maximum protection will be assured in such areas.''
BLM Response: The BLM revised the definition of ``infrastructure''
in the final rule to clarify what structures or improvements are
regulated by this rule. The final rule defines the term as, ``a
permanent or semi-permanent structure or improvement that is built to
support commercial oil and gas activities on BLM-administered lands
within the Reserve, such as pipelines, gravel drilling pads, man camps,
and other structures or improvements.'' The revised definition further
clarifies that ``infrastructure'' does not include structures or
improvements that will primarily be used by and provide a benefit to
communities located within or in close proximity to the Reserve. In
addition, the rule is incorporating the IAP's prescriptions on
infrastructure, and is not prescribing specific new measures for
management of Special Areas.
Comment: Commenters recommended that defining the term ``Integrated
Activity Plan'' is not necessary, as the requirement under section 202
of the FLPMA to prepare land use plans does not apply to the Reserve
and, therefore, the IAP should not be defined as a land management
plan. Commenters suggested the IAP is unique to the Reserve and it
should remain that way.
BLM Response: The BLM agrees that it does not develop IAPs to
comply with section 202 of FLPMA, though it prepares IAPs to provide a
framework for managing the Reserve. The BLM believes that the final
rule should define the term ``IAP'' to accurately describe the
relationship to the requirements in the rule and IAPs and to assist the
BLM when preparing future IAPs.
Comment: Commenters suggested that the BLM revise its proposed new
definition of ``significant resource value'' to be consistent with 42
U.S.C. 6504(a) and state ``any significant subsistence, recreational,
fish and wildlife, historical, or scenic value identified by the BLM as
supporting the designation of a Special Area.''
[[Page 38728]]
Commenters noted that omitting the word ``significant'' in the
definition in the proposed rule is outside of BLM statutory authority
and ``incorrectly lowers the requirements for designation of Special
Areas'' to have significant resource values.
BLM Response: The BLM believes that including the word
``significant'' in the definition of ``significant resource value'' is
redundant and circular. The definition makes clear that the value
supports designation of a Special Area, which makes it significant.
This definition is consistent with the NPRPA. To provide additional
clarity and consistency with the NPRPA, the final rule specifies that
the term ``significant resource values'' refers to surface values.
Comment: Commenters requested a more precise definition of
``significant resource value'' given that ``the creation and expansion
of Special Areas that would subsequently preclude or severely limit oil
and gas exploration and development is based on the presence of a
significant resource value.'' The comment stated that ``this is an
inadequate and circular definition.''
BLM Response: The BLM declines this request. The significant
resource values that BLM is required to assure maximum protection for
are specifically listed in section 104(b) the NPRPA (42 U.S.C. 6504),
and this rule is implementing the NPRPA.
Comment: Commenters suggested the BLM revise the definition of
``significant resource value'' because the proposed definition is
``vague and would allow BLM to designate lands as having surface
resources to support a special area designation if there are any
subsistence, recreational, fish and wildlife, historical, or scenic
values contained in the near vicinity.''
BLM Response: The BLM declines this request. The definition comes
from the plain language of the NPRPA.
Comment: Commenters believe that the proposed definition of
``significant resource value'' is contrary to statutory authority and
should be revised since it is ``contrary to the requirements that
Congress established for the designation of Special Areas.'' The
comment states that when the definitions for ``Special Areas'' and
``significant resource value'' are considered collectively, the
proposed rule could be interpreted to remove the statutory requirement
that ``restricts the designation of Special Areas to those areas
containing certain significant values.''
BLM Response: The BLM disagrees with the comment's interpretation
of the two definitions. The definition of ``significant resource
value'' recites the specific surface values listed in the NPRPA that
may warrant designation and management of a Special Area by the
Secretary of the Interior. The definition of ``Special Area'' makes
clear those areas must have significant resource values. These
definitions, and the rest of the regulation, do not provide for or
imply that the BLM would designate Special Areas in the absence of
significant resource values.
Comment: A commenter suggested adopting the definition of ``Areas
of Critical Environmental Concern'' as a substitute for the definition
of ``Special Areas.''
BLM Response: We decline that suggestion. The NPRPA provides a
specific definition of what would be considered a Special Area, which
differs from the definition of an Area of Critical Environmental
Concern as defined in FLPMA.
Comment: Commenters requested the BLM include oil and gas resources
as a ``significant resource value'' given that the economic opportunity
and revenue generated by oil and gas production provides significant
value to the residents of the North Slope in the form of health and
emergency services and other basic needs.
BLM Response: We decline that suggestion. Section 104(b) of the
NPRPA (42 U.S.C. 6504) specifically lists the surface resource values
that should be considered--``containing any significant subsistence,
recreational, fish and wildlife, or historical or scenic value''--and
oil and gas is not one of them.
Comment: Commenters opined that the revised definition of
``significant resource value'' exceeds statutory authority in providing
that such designated areas would be protected to a maximum standard.
Commenters suggested the definition implies that Special Areas are held
to a higher standard and that reasonable impacts associated with oil
and gas development are not allowed. Commenters also opined that the
proposed rule expands the definition of ``Special Areas'' beyond the
scope of law. The definition would ``impede development of a
competitive leasing and development program'' in the Reserve, as
intended by Congress.
BLM Response: We disagree. The definition in the proposed rule is
consistent with the NPRPA, which explicitly states, ``to assure the
maximum protection of such surface values to the extent consistent with
the requirements of this Act.''
Comment: Commenters recommended the definition of ``significant
resource value'' explicitly exclude future oil and gas leasing,
exploration, and development. Commenters believe that allowing leasing,
exploration, and development within Special Areas is ``contrary to the
goal of establishing Special Areas.''
BLM Response: The BLM does not agree with this comment. Allowing
some leasing, exploration, and development in Special Areas is not
automatically inconsistent with the goal of Special Areas, which
Congress specifically provided should be given maximum protection for
their significant resource values consistent with the requirements of
the Act for the exploration and production of oil and gas in the
Reserve. This rule does not close areas to any activities beyond the
closures already adopted by the IAP and leaves additional protective
measures for area-specific analysis, subject to the processes described
in this rule.
Comment: The BLM requested comments on whether to include the
definition of ``permanent oil and gas facilities'' as defined in the
2022 IAP ROD. Commenters recommended removing the exclusions in the IAP
definition because exploration wellheads and seasonal facilities such
as ice roads and ice pads can be designed for use in successive winters
and therefore should not be excluded. Commenters recommended that the
BLM expand this definition to clearly encompass all permanent oil and
gas facilities at any stage, including exploration and delineation,
development, production, transportation, and decommissioning.
Commenters encouraged the addition of water reservoirs and trenching
done at any stage to be added to the definitions because these
activities have long lasting effects on multiple resources. Commenters
suggested that the definition include any development that permanently
alters the surface resources or ecological values. Commenters
recommended removing ``materials sites such as sand and gravel'' from
the definition as they are not necessarily oil and gas related and they
can be reclaimed.
BLM Response: Based on the feedback received, the BLM is not
including a definition for ``permanent facilities'' in the final rule.
We believe that the revised definition of ``infrastructure'' in the
final rule adequately encompasses this subject by clarifying that for
the purposes of this rule ``infrastructure'' includes permanent and
semi-permanent structures and improvements, and by providing
explanation and examples of those structures and improvements.
Comment: The BLM requested comments on whether to incorporate a
[[Page 38729]]
proposed definition of ``essential'' that resembles provisions of Lease
Stipulation K-12 from the 2022 IAP ROD. In response to this request,
some commenters stated that defining ``essential'' would provide
clarity, and that the language of ``no other feasible and prudent
option is available'' is good as a constraining description. Commenters
suggested making the definition prioritize resource protection over
production. Other commenters opined that the definition of
``essential'' as written in the proposed rule is sufficient and is in
line with the purpose of providing maximum protection to Special Areas.
Commenters pointed out that they believe the definition of
``essential'' in the 2022 IAP ROD differs slightly from the definition
of essential in Sec. 2361.40(d)(3).
BLM Response: The BLM is not including a definition for
``essential'' in the final rule. After assessing public comment and the
structure of the rule, the BLM instead eliminated the provision in the
proposed rule that limited new permanent infrastructure related to
existing oil and gas leases to that which is ``essential for
exploration or development activities and no practicable alternatives
exist. . .'' on lands within Special Areas that are allocated as
unavailable to new infrastructure. Therefore, the term ``essential''
does not appear in the final rule. The provisions in the IAP, including
the definition of the word ``essential'' in the stipulations, will
apply.
Comment: Commenters recommended defining the terms ``reasonably
foreseeable'' and ``significantly adverse effects.'' Commenters also
recommended defining the term ``effects'' to clarify that effects
include effects on environmental, fish and wildlife, and historical or
scenic values.
BLM Response: We decline this request. These terms have standard
accepted meanings and have been further clarified through their use in
NEPA. The term ``effects'' is used throughout this rule in reference to
environmental analysis that will occur and be documented under NEPA,
and so defining the term separately here would create confusion.
Comment: Commenters recommended that since ``rural resident'' is
not defined in 50 CFR 100.4 but is defined in ANILCA Title VIII, the
proposed rule should not reference 50 CFR 100.4.
BLM Response: The regulations in 50 CFR part 100 implement the
Federal Subsistence Management Program on public lands within the State
of Alaska pursuant to the authority in Title VIII of ANILCA. While the
term ``rural resident'' is used throughout ANILCA, it is not
specifically defined; however, 50 CFR 100.4 defines the term ``rural''
and the term ``resident'' and then uses those terms in the definition
of ``subsistence uses.'' The BLM will retain this citation.
Comment: Commenters recommending defining the term ``ecological
integrity'' in the rule because protecting surface resources requires
maintaining the ecological integrity of surface resources. The
scientific meaning of ``ecological integrity'' is the capability of
supporting and maintaining a balanced, integrated, adaptive community
of organisms having a species composition and functional organization
comparable to that of the natural habitat of the region.
BLM Response: The BLM did not include the term ``ecological
integrity'' in the final rule, and therefore it is not defined in this
section of the final rule.
Comment: The BLM received a comment that the phrase ``minimize the
disruption of natural flow patterns and changes to water quality''
should be replaced with ``maintain natural flow regimes and the
ecological integrity of lotic and lentic ecosystems.'' ``Natural flow
regime'' could be defined as the magnitude, frequency, duration,
timing, and rate of change of flow events that characterize the
hydrology of a natural river environment.
BLM Response: This phrase is used in the 2022 IAP to describe the
objectives of restrictions that the IAP applies to new oil and gas
leases and infrastructure. The proposed rule and final rule incorporate
the phrase to explain restrictions in the 2022 IAP that are codified by
the rule. Because the rule is using language that is used in the 2022
IAP, the BLM declines to change the wording here, which would create
confusion.
Comment: Commenters recommended defining the following terms in the
regulation:
<bullet> Financial readiness means the lessee's financial
capability to honor its contractual obligations.
<bullet> U.S. energy needs means the projected energy consumption
of the United States of America in a given year, which comes from
different sources such as nuclear power, natural gas, petroleum,
renewable energy, and coal.
<bullet> Financial projection means the lessee's financial planning
to estimate expected revenues, expenses, and cash flows which are
normally used to build a company budget.
<bullet> Financial stress means a financial method designed to
simulate the lessee's finances under adversarial situations.
<bullet> Financial balances means all the financial statements
prepared by the lessee for cooperative reasons or to report to other
U.S. agencies.
BLM Response: These terms do not appear in the rule text and thus
need not be defined in this rule.
Comment: Some commenters recommending eliminating the new
definitions for Indigenous Knowledge, Integrated Activity Plan,
infrastructure, and significant resource values.
BLM Response: We decline those suggestions. These definitions are
needed to ensure clarity and consistency in the implementation of the
proposed rule.
Description of the Final Rule
In response to comments, the BLM revised the definition of
``infrastructure'' in the final rule to clarify that the term means,
``a permanent or semi-permanent structure or improvement that is built
to support commercial oil and gas activities on BLM-administered lands
within the Reserve, such as pipelines, gravel drilling pads, man camps,
and other structures or improvements.'' The revised definition further
clarifies that ``infrastructure'' does not include structures or
improvements that will primarily be used by and provide a benefit to
communities located within or in close proximity to the Reserve.
The BLM also clarified in the final rule that the term
``significant resource values'' refers to surface values, in order to
ensure consistency with the language in the NPRPA. Similarly, the BLM
made minor clarifications in the definition of the term ``Special
Areas'' to ensure consistency with the language in the NPRPA. The final
rule defines ``Special Areas'' as: ``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 surface values, to the extent consistent with the requirements of
the Act for the exploration and production of the Reserve.''
The final rule incorporates the definition for the term ``co-
stewardship'' that is used in BLM Permanent Instruction Memorandum No.
2022-011 (Co-Stewardship with Federally Recognized Indian and Alaska
Native Tribes Pursuant to Secretary's Order 3403). This definition was
added in response to comments on Sec. 2361.60.
All other definitions included in the proposed rule are carried
forward to the final rule without change.
[[Page 38730]]
Section 2361.6--Effect of Law
Existing and Proposed Regulations
Existing Sec. 2361.0-7 is redesignated to Sec. 2361.6 in the
final rule. The BLM proposed 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).
Public Comments on Sec. 2361.6
Commenters supported the provision included at proposed Sec.
2361.6(b)(4) authorizing the Secretary to grant such rights-of-way to
the North Slope Borough as may be necessary to permit the North Slope
Borough to provide energy supplies to villages on the North Slope. We
agree with these comments.
Commenters recommended that this section state that the rule does
not apply to oil and gas leases issued prior to the effective date of
the rule. The BLM addresses the rule's application to existing oil and
gas leases in responses to comments in section III(E) earlier in this
preamble to the final rule (General Public Comments, Comments about oil
and gas production).
Description of the Final Rule
The BLM did not change this section of the proposed rule in the
final rule.
Section 2361.7--Severability
Existing and Proposed Regulations
The BLM proposed this new section to establish that if any
provision of part 2360 is invalidated, then all remaining provisions
would remain in effect.
Public Comments on Sec. 2361.7
Commenters recommended the BLM remove this section from the final
rule because they see it as unnecessary or uncharacteristic for a
rulemaking. The BLM decided to retain this section as proposed in the
final rule because the various components of the rule are distinct and
may operate independently. As such, they should be considered
separately by a reviewing court, and if any portion of the rule were to
be invalidated, the remaining provisions could continue to provide the
BLM with necessary tools to manage oil and gas activity and protect
important resources in the Reserve.
Many of the provisions 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 rule. The procedural
requirements in Sec. 2361.10(b) for protecting surface resources in
the Reserve also would stand alone, as would the codification of
existing Special Areas in Sec. 2361.20, the procedural requirements in
Sec. 2361.30, the specific requirements for new infrastructure in
Sec. 2361.40, and other provisions.
Further, the paragraphs within specific sections may also function
independently of each other. For example, the final rule's provisions
pertaining to the management of oil and gas activities in Special Areas
in Sec. 2361.40 describe how the authorized officer will assure
maximum protection for significant resource values while allowing for
exploration and production within the Reserve. Within that section,
each paragraph serves a separate function, such as requiring the
authorized officer to avoid the adverse effects of proposed oil and gas
activities on the significant resource values of Special Areas;
directing the authorized officer to identify, adopt, and update maximum
protection measures; prescribing requirements for considering the
authorization of new leases or infrastructure proposed in areas
allocated as closed to leasing or unavailable to new infrastructure;
prescribing different requirements for considering the authorization of
new leases or infrastructure proposed in areas allocated as available
for future oil and gas leasing or new infrastructure; and providing the
framework for considering new oil and gas activities through a NEPA
process. Hence, if a court prevents any provision of one part of this
rule from taking effect, that should not affect the other parts of the
rule. The remaining provisions would remain in force.
Description of the Final Rule
The BLM did not change this section of the proposed rule in the
final rule.
Section 2361.10--Protection of Surface Resources
Existing and Proposed Regulations
Existing Sec. 2361.1 is redesignated to Sec. 2361.10 in the final
rule, and the title is 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 [Reserve].''
The BLM proposed to establish new standards and procedures for
managing and protecting surface resources in the Reserve 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.'' The BLM
proposed to amend paragraph (a) to mirror the statutory language. As
amended, paragraph (a) also provided 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.
The proposed rule deleted existing paragraph (b). 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 Reserve. Paragraph (b) in
the proposed rule spelled out new procedures for protecting surface
resources in the Reserve. As explained above, Congress assigned the BLM
the duty to protect the surface resources in the Reserve, but BLM
regulations do not fully explain the scope of that duty. The proposed
rule was drafted to provide direction to the agency and the public in
complying with Congress's mandate.
In paragraph (b)(1), the proposed rule directed the BLM to manage
oil and gas activities in accordance with the IAP. In doing so, the
proposed rule enshrined longstanding BLM practice into regulations. As
explained above, in the 1980 Amendments to the NPRPA Congress chose to
exempt the Reserve from FLPMA's planning requirements (42 U.S.C.
6506a(c)). Nonetheless, since 1998, the BLM has prepared several IAPs
to primarily govern oil and gas activities in the Reserve. The IAP is a
form of land use plan that ``addresses a narrower range of multiple use
management than a resource management plan.'' 2013 NPR-A IAP ROD at 17.
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 responsibilities under
applicable
[[Page 38731]]
Federal laws, including NPRPA and NEPA. Accordingly, the proposed rule
required the BLM to maintain an IAP, which would provide predictability
to industry and North Slope communities and help guide BLM use
authorizations in the Reserve but would give way to the regulations in
the event of a conflict.
Paragraph (b)(2) of the proposed rule required the BLM, in each
decision concerning oil and gas activity in the Reserve, 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) specified 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 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.
The proposed rule deleted existing paragraphs (c) and (d). 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. The proposed rule moved this content
to Sec. Sec. 2361.20, 2361.30, and 2361.40, as most appropriate.
Moving this material to those new sections would provide clarification
by focusing Sec. 2361.10 on protection of surface resources throughout
the Reserve.
Proposed new paragraph (c) clarified 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) required 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 specified 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 Reserve consistent
with the requirements of the Act. The proposed rule retained the
condition that exercises of that authority must be consistent with the
NPRPA, and it added ``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 provided 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, the proposed rule also amended paragraph
(e)(1) to allow the authorized officer to limit, restrict, or prohibit
use of and access to the Reserve to protect subsistence uses and
resources.
The proposed rule amended existing paragraph (f) to recognize the
breadth of Federal laws that apply to the management and protection of
historical, cultural, and paleontological resources in the Reserve.
Public Comments on Sec. 2361.10
Comment: Commenters supported ``protection of surface resources''
and establishing new standards and procedures for managing and
protecting surface resources in the Reserve from the foreseeable and
significantly adverse effects of oil and gas activities.
BLM Response: The BLM appreciates commenters acknowledging the
intention of the regulations.
Comment: Commenters recommended changing the title of this section
to ``Protection of environmental values, including surface resources,''
to reflect the NPRPA which speaks to ``protection of environmental . .
. values'' broadly. 42 U.S.C. 6503(b).
BLM Response: The reference to surface resources is consistent with
the NPRPA, which provides: ``Activities undertaken pursuant to this Act
shall 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 of the National Petroleum Reserve in Alaska.'' 43
U.S.C. 6506a(b). The BLM did not change the title of this section in
the final rule.
Comment: Commenters recommended revising proposed Sec. 2361.10 to
emphasize the overarching purpose of the Reserve for oil and gas
production by clarifying that the NPRPA requires resource protection
``to the extent consistent with the requirements of this Act for the
exploration of the reserve.'' Other commenters recommended revising
proposed Sec. 2361.10 to emphasize the overarching purpose of the
Reserve for environmental protection by clarifying that the NPRPA
requires protection of environmental values, including, but not limited
to, surface resources.
BLM Response: The BLM believes Sec. 2361.10 appropriately reflects
the mandates in the NPRPA to conduct an oil and gas leasing and
production program in the Reserve while protecting environmental, fish
and wildlife, and historical and scenic values within the Reserve. The
NPRPA specifically directs the BLM to mitigate adverse effects on the
surface resources of the Reserve when conducting the oil and gas
program. The BLM added the phrase ``oil and gas'' to modify
``activities'' throughout this section of the final rule to clarify
that these regulations are specific to the BLM's implementation of its
oil and gas program in the Reserve.
We also note that the final rule in Sec. 2361.40 references the
BLM's mandate under the NPRPA to assure maximum protection of
significant resource values in Special Areas ``consistent with the
requirements of the NPRPA for exploration and production of the
Reserve.''
Comment: Commenters recommended that the BLM develop and explain
the criteria it will use to determine the scope of effects that are
both ``reasonably foreseeable'' and ``significantly adverse'' to
provide
[[Page 38732]]
transparency and promote regulatory certainty.
BLM Response: We decline that suggestion. These terms have a
generally accepted meaning, including as a part of any NEPA analysis,
and are also covered in the NEPA regulations in 40 CFR part 1500.
Providing additional definitions in the rule would not add more
clarity.
Comment: Commenters recommended the rule should articulate that
continued oil and gas activities at any scale in the Reserve will cause
reasonably foreseeable and significantly adverse effects on surface
resources in the Reserve and prohibit new leasing and production
throughout the Reserve, as well as require delaying or denying proposed
activities that would hinder the protection of surface resources.
BLM Response: The BLM does not accept these recommendations. The
requirements of the rule are consistent with the plain language of the
NPRPA that requires all oil and gas activities in the Reserve be
subject to ``such conditions, restrictions, and prohibitions as the
Secretary deems necessary or appropriate to mitigate reasonably
foreseeable and significantly adverse effects.'' Further, Sec.
2361.10(a) specifically provides for the BLM to condition, delay, or
deny some or all proposed activities as may be necessary to fulfill
these requirements.
Comment: The BLM received comments stating that, while the preamble
states that the Reserve's standards related to the protection of
surface values would also fulfill the BLM's mandate to take action
necessary to prevent unnecessary or undue degradation, there is no
mention of this obligation in the proposed rule. Commenters requested
that the BLM add provisions that expressly reference and incorporate
unnecessary or undue degradation standards or include cross references
to those standards in Sec. Sec. 2361.10 and 2361.40.
BLM Response: The BLM declines the request to expressly reference
FLPMA's unnecessary or undue degradation provision in the rule. FLPMA
requires the BLM to prevent unnecessary or undue degradation on all
BLM-managed public land. This mandate applies to a broader range of
uses within the Reserve than are being addressed in this rule and the
BLM will prevent unnecessary and undue environmental degradation within
the Reserve whether or not it is specifically identified in Sec. Sec.
2361.10 and 2361.40. Nevertheless, the BLM did add FLPMA to the
Authorities section of the rule.
Comment: The BLM received comments stating that the NPRPA requires
mitigation, but commenters expressed concern that the rule focuses on
prevention.
BLM Response: The BLM follows a mitigation hierarchy that generally
includes avoidance as the first step in mitigating adverse effects on
public land resources and values, consistent with the CEQ regulations
implementing NEPA, particularly 40 CFR 1508.1(s). In pursuit of the
BLM's mandate under the NPRPA 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 [Reserve]'', the rule
draws on all steps of the mitigation hierarchy, including preventing
impacts entirely through avoidance where appropriate. For example,
Sec. 2361.10(a) requires the Bureau to protect surface resources by
adopting appropriate measures to mitigate reasonably foreseeable and
significantly adverse effects of proposed oil and gas activities; Sec.
2361.10(b)(2) requires the authorized officer to adopt measures to
mitigate reasonably foreseeable and significantly adverse effects on
surface resources, particularly with regard to those resources that
support subsistence use and needs; and Sec. 2361.40(g) requires the
authorized officer to evaluate and require mitigation measures to
address adverse effects on significant resource values when considering
authorizing oil and gas leasing or new infrastructure in a Special
Area.
Comment: The BLM received comments concerning the phrase,
``delaying action on, or denying some or all aspects of proposed
activities'' in proposed Sec. 2361.10(a). Some commenters suggested
that the BLM lacks the statutory authority to delay or deny activities
in the Reserve. Other commenters supported the provision in the
proposed rule and recommended the BLM describe circumstances that would
warrant denying proposed activities. Commenters recommended this
provision should discuss mitigating reasonably foreseeable and
significantly adverse effects to the climate. Commenters requested the
final rule specifically provide that if differences in caribou
behavior, distribution, or harvests are detected, BLM will prohibit
additional development.
BLM Response: The NPRPA provides the BLM with the authority to
``provide for such conditions, restrictions, and prohibitions as the
Secretary deems necessary or appropriate to mitigation reasonably
foreseeable and significantly adverse effects on the surface resources
of the [Reserve].'' Additionally, the BLM's oil and gas lease forms for
leases issued in the Reserve include terms that enable the BLM to
require measures deemed necessary to minimize adverse impacts to the
land, air, and water; to cultural, biological, visual, and other
resources; and to other land uses or users. Examples of how the BLM
might exercise this authority would be to reduce the number of drill
pads or density of roads in a development proposal to protect caribou
calving, restrict timing on drilling activities to protect subsistence
activities, or phase project components to limit the amount of habitat
being impacted at a given time.
Analyzing climate impacts of oil and gas development is not part of
this rule, which is focused on impacts to surface values of special
areas and surface resources broadly. Climate change impacts the surface
values that the BLM is required to protect, including subsistence
resources, fish and wildlife habitat, and recreation opportunities, and
those impacts will be analyzed and addressed through NEPA processes
when evaluating potential projects. Similarly, the BLM is not
addressing specific resource values such as caribou in the rule;
however, caribou habitat will be considered as a significant resource
value where appropriate as the BLM implements the rule.
Comment: Commenters stated concerns that proposed Sec. 2361.10(a)
will result in violations of valid existing lease rights, and that the
BLM should provide clear assurance that the government will not
withhold approval for reasonable proposals for infrastructure, such as
roads and pipelines, necessary to bring valid existing leases into
production.
BLM Response: We do not agree with these assertions. The BLM will
implement Sec. 2361.10(a) consistent with valid existing lease rights.
As discussed in more detail in section III(E) above, while the rule
will not affect the terms of an existing lease or approved development
project or permit, future development of an existing lease may be
subject to additional terms and conditions if necessary to ensure that
the BLM's decision is consistent with its statutory responsibility to
mitigate reasonably foreseeable adverse effects of oil and gas activity
on the surface resources as required by the NPRPA. For example, the
Willow Master Development Plan includes numerous lease stipulations,
required operating procedures, and mitigation measures intended to
avoid, minimize, or otherwise mitigate the effects of oil and gas
production on surface resources.
Comment: The BLM received comments stating that the proposed rule
[[Page 38733]]
is not adaptive as it only requires future leases to comply with lease
stipulations and ``by exempting all the currently authorized
activities, the BLM constrains its ability to adapt its resource
management strategy in response to climate change.'' The BLM also
received comments stating that ``concerns about breach-of-contract
claims against the Federal Government are ill-founded as BLM has
reserved the right--in the lease itself--to set the rate of
production.'' The commenters state that the BLM can use the authority
granted in the lease language to create regulations that deny or
prohibit additional oil and gas exploration and development as well as
suspend operations and production of current drilling. Comments express
that the NPRPA gives BLM authority to restrict or suspend activities in
the Reserve and state that the BLM ``can do so `in the interest of
conservation of natural resources' or to `mitigate reasonably
foreseeable and significantly adverse effects on surface resources.' ''
BLM Response: The rule will apply to existing leases to the extent
it is compatible with the terms of those leases. The BLM is not
exempting all currently authorized activities but is constrained by
valid existing rights.
Comment: Commenters recommended that the BLM state that its ability
to impose mitigation is only related to activities specifically
undertaken pursuant to the NPRPA, and that for mitigation to apply, the
NPRPA activity must cause effects `on the surface resources' of the
Reserve.
Commenters requested that the BLM make commitments related to
mitigation measures for the ecosystems and species affected by oil and
gas development, as well as design and adopt a comprehensive mitigation
plan for impacts to threatened or endangered species in the Reserve.
The BLM received comments requesting the BLM supplement its 2022 IAP
with additional mitigation measures that address the impacts of all
permitted activities in the Reserve as well as the cumulative impacts
of actions outside of agency control.
BLM Response: As discussed above, the BLM has authority to require
mitigation of impacts to public lands resources from authorizations and
other Federal actions in the Reserve, consistent with the NPRPA and
FLPMA. For example, the NPRPA requires that oil and gas authorizations
include provisions to mitigate reasonably foreseeable and significantly
adverse effects on surface resources. The rule is clear that the
mitigation requirements in Sec. 2361.10(b)(2) apply to adverse effects
on surface resources of the Reserve, and the final rule specifies in
paragraph (b) that the requirements in the section apply to proposed
oil and gas activities. The BLM further notes that although this rule
would only apply to oil and gas activities, protection of surface
resources from other actions may be addressed through other means, such
as the IAP and site-specific authorizations. The BLM is not developing
mitigation plans or supplementing the 2022 IAP as part of this
rulemaking process.
Comment: Commenters recommended adding evaluation procedures before
proposed Sec. 2361.10(b)(1) that would require the BLM to evaluate the
condition of surface resources within the Reserve at least every 5
years, including a climate impacts assessment.
Commenters recommended adding a new section requiring a commitment
to survey and monitor significant surface resources on an on-going
basis and to rigorously study changes in and impacts to those
resources.
Commenters recommended that the regulations require the BLM to
establish baseline data for resources in the Reserve, including
specifically caribou distribution and movement, subsistence food
contamination, and air quality data.
BLM Response: The BLM does not currently have the resources to
conduct a full evaluation of all surface resources in the Reserve every
5 years. Under Sec. 2361.30, the BLM will evaluate the Reserve for
significant resource values every 10 years, which will provide
important resource inventory and monitoring information at regular
intervals and enable the BLM to study changes to those resources over
time, including the impacts from a changing climate. Additionally,
under Sec. 2361.10(b)(1), the BLM will maintain an IAP addressing
management of all BLM-administered lands and minerals throughout the
Reserve. The IAP amendment process will provide opportunities for the
BLM to evaluate all surface resources within the Reserve on a regular
basis and update baseline data for those resources.
Comment: Commenters stated that the BLM must ensure an appropriate
framework for IAP development that is consistent with Federal law and
follows NEPA's process for public participation. The BLM received a
comment requesting that the language in the proposed rule requiring the
BLM to maintain an IAP for the Reserve be removed from the rule as it
could prematurely restrict the BLM's ability to make informed decisions
with respect to future IAPs.
BLM Response: The BLM has been preparing IAPs since 1998 through a
NEPA process and is incorporating this requirement into the rule to
ensure ongoing, robust public participation in preparation of these
management plans. Merely requiring the BLM to maintain an IAP for the
Reserve does not restrict decision-making space for future IAP
amendments.
Comment: Commenters discussed integrating the 2022 IAP into the
rule; some commenters were concerned that the IAP would not address
long-term impacts from resource extraction and asked the BLM to perform
a comprehensive review of the plan. Other comments requested the BLM
support and align with the IAP as it is a system that already works and
is ``highly protective of surface resources in the NPR-A, but it does
not preclude oil and gas development.''
BLM Response: The 2022 IAP was based on a previous, multi-year
environmental analysis and public engagement process. The BLM is not
reviewing the plan at this time. The rule aligns with the 2022 IAP and
codifies portions of it related to Special Area designation and
management.
Comment: Commenters recommended the rule require measures to
mitigate reasonably foreseeable and significantly adverse effects on
carbon storage, an ecosystem service that is currently provided by
boreal peatlands and permafrost. Commenters recommended the rule
require measures to mitigate reasonably foreseeable and significantly
adverse effects on caribou and their habitat.
BLM Response: The NPRPA requires that oil and gas authorizations
including provisions to mitigate reasonably foreseeable and
significantly adverse effects on surface resources. The rule is clear
that the mitigation requirements in Sec. 2361.10(b)(2) apply to
adverse effects on surface resources of the Reserve, and the final rule
specifies in paragraph (b) that the requirements in the section apply
to proposed oil and gas activities. In addition, the BLM has authority
to mitigate impacts to public lands resources from authorizations and
other Federal actions in the Reserve, consistent with the NPRPA and
FLPMA. The BLM is not developing mitigation measures for specific
resources as part of this rulemaking process.
Comment: Commenters suggested that the requirement in proposed
Sec. 2361.10(b)(3) to consider any reasonably foreseeable effects,
including indirect effects and cumulative effects, unnecessarily
duplicates the BLM' s existing obligations under NEPA. Other commenters
recommended that the
[[Page 38734]]
BLM clarify in proposed Sec. 2361.10(b)(3) that reasonably foreseeable
effects include effects from activities that have not yet been proposed
but that are induced by the proposed activity. The BLM received
comments stating that the NPRPA does not authorize the BLM to consider
incremental effects of proposed activities when authorizing activities
in the NPRPA nor does it allow the BLM to condition, restrict, or
prohibit activities because of potential effects from activities
outside of the Reserve.
BLM Response: The BLM removed Sec. 2361.10(b)(3) from the final
rule because it was duplicative of the agency's obligations under NEPA
and potentially confusing to restate in the rule. We note that NEPA
obligates the BLM to analyze direct, indirect, and cumulative impacts,
including to consideration of the impacts of reasonably foreseeable
future actions, when making decisions about authorizing activities.
Comment: The BLM received comments regarding proposed Sec.
2361.10(b)(4), specifically the use, meaning, and implication of the
phrase ``any uncertainty concerning the nature, scope, and duration of
potential effects'' in the proposed rule. Some commenters suggested
that the BLM lacks the statutory authority to consider ``any
uncertainty'' in potential effects and then implement restrictions on
proposed activities that ``account for and reflect such uncertainty''
for any impacts. Other commenters supported the requirement in the
proposed rule for the BLM to account for uncertainty regarding
potential impacts of proposed development and recommended the final
rule include more specificity about what qualifies as uncertainty and
how it can be considered in decisions.
BLM Response: We decline these suggestions. Considering uncertainty
is a standard practice for any Federal agency that completes NEPA
analysis. Agencies are required to use high quality information and
science and data when conducting their analysis. To the extent there
are uncertainties, current regulations in 40 CFR 1502.21(a) address
incomplete or unavailable information in analysis and state that ``When
an agency is evaluating reasonably foreseeable significant adverse
effects on the human environment in an environmental impact statement,
and there is incomplete or unavailable information, the agency shall
make clear that such information is lacking.'' The text in the
regulation builds on the language in the NEPA regulations to require
more specific discussion of how the BLM is taking uncertainties into
account in making decisions, which is within the BLM's authority and
beneficial in light of the rapidly changing conditions in the Arctic.
Comment: Commenters recommended Sec. 2361.10(b)(4) explicitly
state that the BLM must base its decisions on the best available
science and will not rely solely on the lack of scientific certainty
when declining to impose any conditions, restrictions, or prohibitions.
BLM Response: The BLM declines this request. Including this
language would be duplicative of the requirements of the NEPA process
and other aspects of the regulation.
Comment: Commenters recommended adding a new Sec. 2361.10(b)(5)
that states: In assessing effects of a decision concerning proposed
activity in the Reserve, the Bureau will identify and evaluate any
significantly adverse effects of its decision, including any effects on
environmental, fish and wildlife, and historical or scenic values that
are individually or collectively significant and any impacts associated
with greenhouse gas emissions.
BLM Response: The BLM declines this request. The first part of the
proposed requirement is duplicative with the BLM's NEPA process and the
requirement in the NPRPA to mitigate significantly adverse effects.
Further, analyzing the climate impacts of oil and gas development is
not part of this rule, which is focused on addressing impacts to
significant resource values of Special Areas and surface resources in
the Reserve. The BLM analyzes climate impacts as part of NEPA analysis
when evaluating potential projects, including leasing and development
decisions.
Comment: Commenters expressed concern with limiting consultation in
paragraph (e)(1) to federally recognized Tribes and ANCSA corporations
and requested that BLM consultation be more inclusive than just those
two groups. Commenters requested the BLM add a requirement to engage in
meaningful communication and consultation with local villages and
Tribes to ensure the new regulations meet the needs and concerns of the
communities who rely on the Reserve.
BLM Response: The BLM did not consider a broader approach to
consultation in the proposed rule, and so the final rule does not adopt
such an approach. The BLM works closely with local communities when
making management decisions for the Reserve and will continue to engage
and communicate with local communities in implementing the rule,
independent of formal consultation efforts.
While not considered government-to-government consultation, per 512
DM 6, it is the policy of the Department to recognize and fulfill its
legal obligations to consult with ANCSA Corporations on the same basis
as Alaska Native Tribes. Native organizations are always invited to
participate in the public-involvement periods of NEPA projects and lend
their voices to management actions within the Reserve or on any BLM-
managed public lands.
Comment: Commenters recommended the BLM define the role of the
North Slope Science Initiative (NSSI) with respect to surveys and
monitoring, the evaluation of effects, recommendations for modified
protections and restrictions, and mitigation measures.
BLM Response: The NSSI is an advisory body that is intended to
coordinate inventories, monitoring, and research for a better
understanding of terrestrial, aquatic, and marine ecosystems of the
North Slope of Alaska, and was established by the Secretary pursuant to
section 348 of the Energy Policy Act of 2005, Public Law 109-58, 119
Stat. 594, 708 (2005) (codified at 42 U.S.C. 15906). While the NSSI
provides valuable information, the BLM does not believe it is
appropriate for these regulations that apply only to BLM-managed public
lands in the Reserve to define NSSI's role. The NSSI is a body that
coordinates scientific efforts between agencies and provides guidance
and recommendations to the Secretary, the BLM, and other agencies
within the Department.
Comment: Commenters recommended the BLM include a presumption
against all oil and gas activities in Sec. 2361.10 similar to the
presumption proposed in Sec. 2361.40(c) to ensure protection against
significantly adverse effects.
BLM Response: A presumption against all oil and gas activities in
the Reserve would not be consistent with the NPRPA, which requires the
BLM to conduct an oil and gas leasing program in the Reserve. The NPRPA
imposes special requirements on the BLM to protect significant resource
values within Special Areas, which is why the presumption is only
included in Sec. 2361.40. We note the final rule provides
opportunities for the BLM to avoid and mitigate adverse impacts on
surface resources generally. For example, Sec. 2361.10(a) requires the
BLM to 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 oil and gas activities, including conditioning, delaying
action on, or denying some or all aspects of proposed oil and gas
activities.
[[Page 38735]]
Comment: Commenters recommended the final rule stipulate that the
BLM will not waive lease stipulations or mitigation provided by
Required Operating Procedures (ROPs) unless the threats to the
resources that supported the ROPs no longer exist.
BLM Response: We decline that suggestion. ROPs are a standard
practice across the BLM and describe the protective measures that the
BLM will impose on applicants during the permitting process. Similar to
lease stipulations, the objective of a ROP must be met in order for
exceptions, modifications, or waivers to be granted under the 2022 IAP.
At the permitting stage, the BLM authorized officer will not include
those ROPs that, because of their location or other inapplicability,
are not relevant to a specific permit application. We also note that at
the permit stage, the BLM may establish additional requirements as
warranted to protect the land, resources, and uses in accordance with
the BLM's responsibilities under relevant laws and regulations.
Comment: Commenters recommended the rule require the BLM to
consider and adopt as necessary measures to specify the rates of
development and production in the public interest. Commenters
recommended the rule include a provision that the BLM may specify the
rate of production and limit or suspend activity on leases. Commenters
also requested that the rule update the pricing of bonds or schemes
that standardize financial health requirements for lessees (such as
those found in the Surface Mining Control and Reclamation Act) and
reflect the true cost of development and the increased risk of
abandonment for oil and gas projects in the Reserve.
BLM Response: The BLM declines this request. Regulations for oil
and gas leasing and production within the Reserve are covered in 43 CFR
part 3130, which the BLM is not revising in this rule. The standard
lease terms and conditions also provide for the BLM to provide
conditions on production.
Comment: Commenters recommended the BLM recognize and enforce water
quality standards identified by Native landowners near Utqiagvik and
Nuiqsut to protect watersheds that extend beyond Special Areas.
BLM Response: We decline that suggestion. While the BLM requires
compliance with applicable laws, this addition would be outside the
scope of this rulemaking.
Comment: Commenters asked for clarification in Sec. 2361.10 about
subsistence use under ANILCA section 811, and recreational shooting
under the Dingell Act.
BLM Response: We decline that suggestion. The proposed rule
addresses oil and gas activities and does not limit subsistence use
access or preclude recreational shooting.
Comment: Commenters requested increased protections for vegetation,
as regeneration of vegetation is dependent on environmental conditions.
BLM Response: We decline this suggestion. Vegetation is included
because it is encompassed by ``the environmental, fish and wildlife,
and historical and scenic values of the National Petroleum Reserve in
Alaska.''
Comment: Commenters expressed concern about the ability to
challenge the BLM's oil and gas related decisions.
BLM Response: The regulation does not change procedural
requirements for public participation in the BLM's decision-making
processes.
Comment: Commenters asked the BLM to include burying pipelines in
lease requirements.
BLM Response: This issue is addressed at the project level, as a
mitigation measure or design feature associated with a specific
development proposal. The BLM declines to include this requirement in
this regulation.
Comment: Commenters expressed support for the BLM's integration of
the IAP into the proposed rule, including in sections pertaining to
protection of surface resources and designation and management of
Special Areas, regarding the obligation that the BLM must consult
specifically with ``federally recognized Tribes'' not ``Native
organizations.''
BLM Response: We appreciate the support.
Comment: Commenters requested that the BLM analyze future
development on a case-by-case basis prioritizing consultation and
coordination with those people who are directly impacted.
BLM Response: The BLM analyzes specific development proposals on a
case-by-case basis through the NEPA process, and that process is
unchanged by this regulation. The BLM will continue to consult with
appropriate Federal, State, and local agencies, and with federally
recognized Tribes, and Alaska Native Claims Settlement Act corporations
as required by laws, regulations, and policies governing government-to-
government consultation. The BLM also made minor edits to the language
of this section for clarity. The BLM will also continue to engage
stakeholders, local communities, and the general public in decision-
making processes for development projects.
Description of the Final Rule
In response to comments, the BLM removed paragraph (b)(3) from the
final rule because it is duplicative of environmental analysis
requirements under NEPA. The BLM also added ``oil and gas'' before the
word ``activities'' throughout the section to clarify that the
requirements of this rule only apply to oil and gas activities. The
final rule clarifies that new use authorizations must conform to any
designation or modifications of Special Areas that have occurred
outside of the IAP.
The final rule replaces ``Bureau'' with ``authorized officer'' to
provide clarity about the BLM official responsible for implementing
requirements in the rule. The final rule defines authorized officer as
``any employee of the Bureau of Land Management who has been delegated
the authority to perform the duties of this subpart.'' This term refers
to an employee that carries out duties that are carefully circumscribed
by this rule, other relevant regulations, and Bureau policy, such as
the BLM delegation of authority manual. This employee's duties are also
subject to the control or direction of other executives including the
BLM Director, the Assistant Secretary for Land and Minerals Management,
the Deputy Secretary, and the Secretary, all of whom are officers of
the United States, appointed by the President and confirmed by the
Senate. The remainder of the section is unchanged from the proposed
rule.
Section 2361.20--Existing Special Areas
Existing and Proposed Regulations
The existing regulations only identify the Colville River,
Teshekpuk Lake, and Utukok River Uplands Special Areas by name (Sec.
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, the proposed rule established new Sec. 2361.20 to
incorporate all five of the existing Special Areas into part 2360 and
identify the significant subsistence, recreational, fish and wildlife,
historical, and scenic values that are associated with each of them.
The proposed rule required 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
[[Page 38736]]
regulations (Sec. 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. Proposed Sec. 2361.20 specified that
a map of each Special Area would be available at the Arctic District
Office, which is now the BLM office that oversees the Reserve. The BLM
would also publish and maintain copies of these maps on its website.
Public Comments on Sec. 2361.20
Comment: The BLM received comments expressing support of the
existing Special Areas section, stating appreciation for proposing to
recognize all five of the existing Special Areas and their significant
resource values in regulations. Commenters believe that this
establishes management priorities against which development proposals
can be evaluated and mitigated.
BLM Response: We agree recognizing all existing Special Areas in
the regulation will provide increased transparency and clarity for
managing these areas and their significant resource values.
Comment: Commenters recommended changes to management of existing
Special Areas, such as by closing them to oil and gas leasing and
development and strengthening prohibitions against oil and gas
infrastructure or development impacts.
BLM Response: The BLM is not changing the specific management
prescriptions for existing Special Areas as part of this rulemaking
process, as those decisions were most recently identified in the 2022
IAP. The rule codifies the existing Special Areas and their significant
resource values as currently established in Secretarial decisions. The
final rule establishes a process in Sec. 2361.30 for designating,
amending, and de-designating Special Areas. Changes to management of
existing Special Areas will follow that process.
Comment: Commenters recommended changes to the boundaries of
existing Special Areas and specified additional values associated with
existing Special Areas and recommended the BLM add those values to the
final rule.
Comments specific to the Teshekpuk Lake Special Area include:
<bullet> Polar bears have begun inhabiting the Teshekpuk Lake area
due to the receding sea ice and should be identified as a significant
resource value;
<bullet> Pik Dunes has unique geologic character,
insect[hyphen]relief habitat for caribou, rare endemic plant
populations, use by various water and shorebirds, and scenic and
recreational value, and should be closed to fluid mineral leasing, new
infrastructure, and other activities including sand and gravel mining;
<bullet> The Special Area should be expanded to include the area
between the Teshekpuk Lake Special Area western boundary and the
village of Atqasuk, which has high density of Yellow[hyphen]billed
loons, Red-throated Loons, King Eider, raptor nests, and caribou
calving sites;
<bullet> The Qupaluk Flyway Network Site be reviewed to ensure that
it is not available for leasing or infrastructure; and
<bullet> The Special Area is unnecessarily large, and the BLM
should re[hyphen]analyze the Teshekpuk Lake Special Area boundaries
before finalizing the rule.
Comments specific to the Colville River Special Area include:
<bullet> The final rule should be updated to reflect the following
special resource values are present in the Special Area: caribou summer
range, winter range, and migratory connectivity; suitable Wild and
Scenic Rivers; Yellow-billed loons; raptors; and moose;
<bullet> The Colville River Delta is particularly important for
birds and should be closed to all to oil and gas leasing;
<bullet> The Arctic peregrine falcon has been delisted, so the
Special Area should be decreased or eliminated;
<bullet> The Special Area should be considered critical habitat for
the Arctic peregrine falcon; and
<bullet> Parts of the Special Area, specifically Ocean Point, are
important for subsistence, yet heavy traffic and long[hyphen]term
impacts from development threaten caribou migration and subsistence
hunting.
Comments specific to the Kasegaluk Lagoon Special Area include:
<bullet> The Special Area is important for brants, shorebird
migration, Red[hyphen]throated and Yellow[hyphen]billed loons, and the
significant resource values for the Special Area should include
high[hyphen]use staging and migration area for waterfowl, shorebirds,
loons, and other waterbirds.
Comments specific to the Utukok River Uplands Special Area include:
<bullet> The final rule should be updated to reflect that suitable
Wild and Scenic Rivers are special resource values in the Special Area;
<bullet> The final rule should designate an area north and west of
the Kokolik River near the west boundary of the Reserve as part of the
Utukok River Uplands Special Area to help avoid river crossings of the
Kokolik River to access potential development areas and better protect
the Kokolik River; and
<bullet> The final rule should move the northern border of the area
unavailable for leasing and new infrastructure to cover all of the
Utukok River Upland Special Area as this area was not included in the
area made unavailable for leasing and infrastructure in the 2013 IAP.
Commenters state that the reasons for excluding it no longer exist and
failing to make this area unavailable for leasing infrastructure may
lead to Western Arctic Caribou Herd calving habitat loss under possible
future developments.
BLM Response: The BLM did not amend the rule in response to
specific comments regarding the significant resource values or
boundaries of existing Special Areas. The rule merely codifies the
existing Special Areas and their significant resource values as
currently identified by Secretarial decisions designating or amending
the Special Areas. The final rule establishes a process in Sec.
2361.30 for designating, amending, and de-designating Special Areas.
Changes to existing Special Areas, including identifying additional
values and changing management, will follow that process, recognizing
that the BLM may not remove lands from the Teshekpuk Lake and Utukok
River Uplands Special Areas unless directed to do so by statute. The
protections for a surface value in a Special Area are not limited to
those protections in the IAP or other Secretarial decisions relating to
the establishment of Special Areas. For example, polar bears are
protected by the Marine Mammal Protection Act, 16 U.S.C. 1531 et seq.,
and the Endangered Species Act, 16 U.S.C. 1531-1544. Indeed, as shown
in the 2013 IAP map 3.3.8-6, a significant portion of polar bear
denning critical habitat in the Reserve and a number of identified dens
are located within the Teshekpuk Lake Special Area, which provides an
additional layer of protection for that species.
Description of the Final Rule
The BLM did not change this section of the proposed rule in the
final rule. The following existing Special Areas are codified in the
final rule:
<bullet> Colville River Special Area, which has important habitat
for raptor and other bird species, including the Arctic peregrine
falcon; important habitat for moose; important habitat for fish;
important subsistence activities; important recreational activities;
world-class paleontological deposits; and significant cultural
resources;
<bullet> Kasegaluk Lagoon Special Area, which has important habitat
for marine mammals; unique ecosystem for the Arctic Coast;
opportunities for primitive
[[Page 38737]]
recreational experiences; important habitat for migratory birds; and
important subsistence activities;
<bullet> Peard Bay Special Area, which has haul-out areas and
nearshore waters for marine mammals; and high-use staging and migration
areas for shorebirds and waterbirds;
<bullet> Teshekpuk Lake Special Area, which has important habitat
for a large number of migratory and other waterbirds; important caribou
habitat; important shorebird habitat; subsistence hunting and fishing
activities; Pik Dunes; and overwintering habitat for fish; and
<bullet> Utukok River Uplands Special Area, which has important
habitat for the Western Arctic Caribou Herd; subsistence hunting
activities; grizzly bear habitat; and important wilderness values.
Additional details on the significant resource values of each
Special Area are found in the preamble to the proposed rule.
Section 2361.30--Special Areas Designation and Amendment Process
Existing and Proposed Regulations
The existing regulations provide general direction for recommending
and considering additional Special Areas in Sec. 2361.1(d). 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 will provide
clarity for stakeholders and ensure that the BLM fulfills its statutory
obligation to assure maximum protection of Special Areas' significant
resource values.
The proposed rule added a new section to provide standards and
procedures for designating and amending Special Areas. Paragraph (a)
required the BLM, at least once every 5 years, to evaluate lands in the
Reserve 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. Paragraph (a)(2) allowed, but did not
require, the BLM to conduct this evaluation through the IAP amendment
process. Paragraph (a)(3) required 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) required the BLM to provide meaningful
opportunities for public participation in the evaluation process,
including review and comment periods and, as appropriate, public
meetings. Existing Sec. 2361.1(d) concerns the submission, content,
and public review of recommendations for additional Special Areas.
Proposed paragraph (a)(4) retained the basic contours of that provision
but provided additional specificity. The proposed language allowed 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 required
the BLM to evaluate and respond to such recommendations. Similar to
existing Sec. 2361.1, proposed paragraph (a)(4) specified 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.
Proposed paragraph (a)(5) allowed 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 was designed to assist the BLM in
fulfilling its statutory duty to protect Special Areas.
Paragraph (a)(6) required that the BLM base decisions to designate
Special Areas solely on whether significant resource values are present
and prohibited 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. The
proposed rule explained that 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).
Proposed paragraph (a)(7) required 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) was designed to provide needed
clarification by specifying that those measures would supersede any
inconsistent provisions in the IAP.
Proposed paragraph (a)(8) incorporated 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 required
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 required the BLM to maintain maps of the
Special Areas on its website. Those proposals were designed to provide
more effective public notice.
Proposed Sec. 2361.30(b) established 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 permitted 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 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, proposed
paragraph (b) required 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 required the BLM to
document its consideration of those comments. Those requirements would
assure public participation in the de-designation process.
Public Comments on Sec. 2361.30
Comment: Commenters requested the BLM explain how new and
additional procedural requirements would integrate with the
environmental
[[Page 38738]]
analysis that the BLM already conducts under NEPA for proposed Federal
actions. Commenters recommended the BLM ensure the new procedures are
not duplicative of NEPA obligations. Commenters expressed their concern
that if they are separate and distinct from each other, it could
increase the number of procedural steps, time, and risk for proposed
activities in the Reserve.
Commenters recommended that the BLM continue to use the IAP for
management of the Reserve including adding, revising, or removing
Special Areas. Commenters suggested that requiring a separate 5-year
cycle for Special Area review and evaluation may establish a different
management framework applicable only to Special Areas which would be
separate from the review and management of the entire Reserve through
IAP/EIS processes.
Commenters expressed concern that mechanisms provided in the
proposed rule that could be used to manage lands as Special Areas could
preclude a rigorous public process pursuant to NEPA.
Commenters expressed concern that there is an over-reliance on
public participation in the contraction and expansion processes
outlined in the proposed rule, and suggested this may allow the Reserve
to be managed by outside interest groups instead of prioritizing Native
communities and local stakeholders.
BLM Response: The new procedures outlined in Sec. 2361.30 are
intended to ensure that the BLM regularly reviews the surface values
and environmental conditions in the Reserve specifically for the
purpose of managing Special Areas with significant subsistence,
recreational, fish and wildlife, historical, and scenic values to
assure their maximum protection, as directed by the NPRPA. These
procedures will support other NEPA processes by ensuring the BLM has
up-to-date baseline conditions for surface values within the Reserve
and will specifically support oil- and gas-related NEPA analyses by
ensuring necessary measures are in place to protect important
resources. It is anticipated that the BLM will often incorporate these
procedures into IAP revisions and amendments; however, rapidly changing
conditions in the Arctic require that the BLM has the ability to
conduct this review and decision-making process outside of an IAP
process when necessary.
The final rule has been updated from the proposed rule to ensure
that robust public part
[…truncated; see source link]Indexed from Federal Register on May 7, 2024.
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.