I. Obtaining Information and Submitting Comments A. Obtaining Information

Please refer to Docket ID NRC-2020-0034 when contacting the NRC about the availability of information for this action. You may obtain publicly available information related to this action by any of the following methods:

• Federal Rulemaking Website: Go to https://www.regulations.gov and search for Docket ID NRC-2020-0034.

• NRC's Agencywide Documents Access and Management System (ADAMS): You may obtain publicly available documents online in the ADAMS Public Documents collection at https://www.nrc.gov/reading-rm/adams.html. To begin the search, select “Begin Web-based ADAMS Search.” For problems with ADAMS, please contact the NRC's Public Document Room (PDR) reference staff at 1-800-397-4209, 301-415-4737, or by email to PDR.Resource@nrc.gov. For the convenience of the reader, instructions about obtaining materials referenced in this document are provided in the “Availability of Documents” section.

• NRC's PDR: You may examine and purchase copies of public documents, by appointment, at the NRC's PDR, Room P1 B35, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852. To make an appointment to visit the PDR, please send an email to PDR.Resource@nrc.gov or call 1-800-397-4209 or 301-415-4737, between 8 a.m. and 4 p.m. eastern time (ET), Monday through Friday, except Federal holidays.

The NRC encourages electronic comment submission through the Federal rulemaking website ( https://www.regulations.gov ). Please include Docket ID NRC-2020-0034 in your comment submission.

The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at https://www.regulations.gov as well as enter the comment submissions into ADAMS. The NRC does not routinely edit comment submissions to remove identifying or contact information.

If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons to not include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment into ADAMS. Please note that the NRC will not provide formal written responses to each of the comments received on the regulatory basis.

The NRC is requesting comments on a regulatory basis to support a rulemaking that would amend the NRC's regulations to facilitate the use of light-water reactor fuel containing uranium enriched to greater than 5.0 weight percent uranium-235 (U-235) in part 50 of title 10 of the Code of Federal Regulations (10 CFR), “Domestic Licensing of Production and Utilization Facilities,” 10 CFR part 51, “Environmental Protection Regulations for Domestic Licensing and Related Regulatory Functions,” and 10 CFR part 71, “Packaging and Transportation of Radioactive Material.” This rulemaking would allow the NRC to prepare for the effective and efficient licensing of applications using fuels enriched to greater than 5.0 and less than 20.0 weight percent U-235 without compromising reasonable assurance of adequate protection of public health and safety, reduce the need for exemptions from existing regulations and license amendment requests, provide licensees operational flexibility and certainty in licensing of accident tolerant fuel, and support the principles of good regulation. The rule changes would apply to any light-water power reactor application submitted to the NRC under 10 CFR part 50 and part 52, “Licenses, Certifications, and Approvals for Nuclear Power Plants.”

On June 22, 2022, the NRC held a comment gathering public meeting to obtain feedback from external stakeholders on the development of the regulatory basis for this proposed rule. The NRC offered the opportunity for stakeholders to make presentations during this meeting. In addition, the NRC conducted a comment gathering session and provided three topics for discussion: (1) regulations and associated guidance documents that should be evaluated in this rulemaking, (2) regulations that would likely require a licensee to request an exemption if licensees chose to pursue fuel enriched above 5.0 weight percent U-235, and (3) rulemaking schedule and impact on stakeholders. Attendees at this meeting included nongovernmental organizations, licensees, nuclear power industry representatives, and other members of the public. The NRC staff has prepared a regulatory basis to describe and document the results of assessments performed by the NRC staff in support of this proposed rulemaking. This regulatory basis and the meeting summary, including transcript, are available as indicated in the “Availability of Documents” section of this document.

The staff determined that the following regulations would be directly or indirectly affected by an increase in fuel enrichment level to greater than 5.0 and less than 20.0 weight percent U-235:

• § 50.67, Accident source term

• § 50.68, Criticality accident requirements

• § 51.51(b), Uranium fuel cycle environmental data—Table S-3

• § 51.52, Environmental effects of transportation of fuel and waste—Table S-4

• § 71.55, General requirements for fissile material packages

In addition to amending the regulations listed, the Commission directed the staff in SRM-SECY-21-0109, “Staff Requirements—SECY-21-0109—Rulemaking Plan on Use of Increased Enrichment of Conventional and Accident Tolerant Fuel Designs for Light-Water Reactors,” to appropriately address and analyze fuel fragmentation, relocation, and dispersal (FFRD) issues relevant to fuels of higher enrichment and burnup levels in the regulatory basis.

In the regulatory basis, the NRC staff concludes that there is sufficient basis to proceed with rulemaking and guidance development to address the regulatory issues associated with the use of fuel enriched to greater than 5.0 and less than 20.0 weight percent U-235. However, there are specific regulatory areas that would benefit from additional input from stakeholders before the NRC staff makes a final recommendation to the Commission on rulemaking.

The Commission has not approved any specific recommendation in the regulatory basis at this time, and as such, any conclusions regarding the elements of the increased enrichment of conventional and accident tolerant fuel designs for light-water reactor rulemaking are subject to change.

The NRC is requesting comment on the regulatory basis. As you prepare your comments, consider the following general questions:

1. Is the NRC considering appropriate options for each regulatory area described in the regulatory basis? Please provide a basis for your response.

2. Are there additional factors that the NRC should consider in each regulatory area? What are these factors? Please provide a basis for your response.

3. Are there any additional options that the NRC should consider during development of the proposed rule? Please provide a basis for your response.

4. Is there additional information concerning regulatory impacts that the NRC should include in its regulatory analysis for this rulemaking? Please provide a basis for your response.

5. Discuss whether the proposed rule would present hardships to regulated small entities. How could rule provisions be modified to lessen these impacts? Please provide a basis for your response.

6. What opportunities are there to increase the beneficial impacts of the rule on small entities? Please provide a basis for your response.

In addition to the general questions, the NRC is requesting specific feedback from the public and has prepared specific questions related to control room design criteria; transportation of uranium hexafluoride; and FFRD.

The NRC is seeking comment on the alternatives proposed in Appendix A of the regulatory basis on control room design criteria.

1. Would the numerical selection of the control room design criteria be better aligned with regulations designed to limit occupational exposures during emergency conditions ( e.g., §§ 20.1206, “Planned special exposures,” and 50.54(x)) or regulations designed to limit annual occupational radiation exposures during normal operations ( e.g., § 20.1201, “Occupational dose limits for adults,” specifically the requirements in § 20.1201 (a)(1)(i))? Please provide a basis for your response.

2. Would a graded, risk-informed method, to demonstrate compliance with a range of acceptable control room design criterion values instead of a single selected value such as the current 5 rem (50 millisievert(mSv)) total effective dose equivalent (TEDE) provide the necessary flexibilities for current and future nuclear technologies up to but less than 20.0 weight percent U-235 enrichment? Please provide a basis for your response.

The NRC is seeking comment on the alternatives proposed in Appendix E of the regulatory basis on fissile material package requirements. To date, industry plans communicated to the NRC have not indicated that there will be enough requests for package approvals for transporting UF 6 enriched up to but less than 20.0 weight percent U-235 to conclude that rulemaking would be the most efficient or effective process to support package approvals. Further, all alternatives to rulemaking that the NRC considered are nearly cost neutral in terms of implementation; however, rulemaking shifts the cost burdens to the NRC disproportionally when compared to taking no rulemaking action.

1. Is there additional information that can be shared to augment comments made by the public in June 2022 regarding the need for rulemaking to support licensing new or existing UF 6 transportation package designs?

The NRC staff has identified that additional feedback from stakeholders would be beneficial before making a final recommendation on rulemaking on FFRD. The NRC is seeking comment on the alternatives proposed in Appendix F of the regulatory basis on FFRD.

1. Are there any other alternatives not described in Appendix F of the regulatory basis on FFRD that the NRC should consider? Are there elements of the alternatives presented or other alternatives that the NRC should consider? Please provide a basis for your response.

2. Stakeholders previously expressed concerns on the proposed § 50.46a rule when it was initially proposed in 2010. What concerns about § 50.46a ( i.e., Alternative 2) exist in today's landscape? Please provide a basis for your response.

3. Under Alternative 2, as currently proposed in the regulatory basis, the staff would apply the regulatory precedent under which fuel dispersal that would challenge current regulatory requirements would not be permitted under loss-of-coolant accident (LOCA) conditions. Would the increased flexibilities gained from best-estimate assumptions and methods employed during large-break LOCA analyses make this alternative reasonable? Please provide a basis for your response.

4. What changes to plant operations, fuel designs, or safety analysis tools and methods would be necessary under each proposed alternative? Please provide a basis for your response.

5. Provide any information that would be relevant to more accurately estimate costs associated with each proposed alternative. Please provide a basis for your response.

6. What are the pros and cons of each alternative, including the degree to which each alternative is consistent with the principles of good regulation?

The cumulative effects of regulation (CER) describe the challenges that licensees or other impacted entities (such as Agreement State agency partners) may face while implementing new regulatory positions, programs, and requirements ( e.g., rules, generic letters, backfits, inspections). The CER is an organizational effectiveness challenge that results from a licensee or impacted entity implementing a number of complex positions, programs, or requirements within a limited implementation period and with available resources (which may include limited available expertise to address a specific issue). The NRC has implemented CER enhancements to the rulemaking process to facilitate public involvement throughout the rulemaking process. Therefore, the NRC is specifically requesting comment on the cumulative effects that may result from this proposed rulemaking. In developing comments on the regulatory basis, consider the following questions:

1. In light of any current or projected CER challenges, how should the NRC provide sufficient time to implement the new proposed requirements, including changes to programs and procedures?

2. If CER challenges currently exist or are expected, what should be done to address them? For example, if more time is required for implementation of the new requirements, what period of time is sufficient?

3. What other (NRC or other agency) regulatory actions ( e.g., orders, generic communications, license amendment requests inspection findings of a generic nature) influence the implementation of the proposed rule's requirements?

4. What are the unintended consequences, and how should they be addressed?

5. Please comment on the NRC's cost and benefit estimates in the regulatory basis.

The Plain Writing Act of 2010 (Pub. L. 111-274) requires Federal agencies to write documents in a clear, concise, well-organized manner. The NRC has written this document to be consistent with the Plain Writing Act as well as the Presidential Memorandum, “Plain Language in Government Writing,” published in the Federal Register on June 10, 1998 (63 FR 31885). The NRC requests comment on this document with respect to the clarity and effectiveness of the language used.

The documents identified in the following table are available to interested persons through one or more of the methods, as indicated.

The NRC may post additional materials related to this rulemaking activity to the Federal rulemaking website at https://www.regulations.gov under Docket ID NRC-2020-0034. These documents will inform the public of the current status of this activity and/or provide additional material for use at future public meetings.

The Federal rulemaking website allows you to receive alerts when changes or additions occur in a docket folder. To subscribe: (1) navigate to the docket folder (NRC-2020-0034); (2) click the “Subscribe” link; and (3) enter your email address and click on the “Subscribe” link.

I. Obtaining Information and Submitting Comments A. Obtaining Information

Please refer to Docket ID NRC-2022-0073 when contacting the NRC about the availability of information for this action. You may obtain publicly available information related to this action by any of the following methods:

• Federal Rulemaking Website: Go to https://www.regulations.gov and search for Docket ID NRC-2022-0073.

• NRC's Agencywide Documents Access and Management System (ADAMS): You may obtain publicly available documents online in the ADAMS Public Documents collection at https://www.nrc.gov/reading-rm/adams.html. To begin the search, select “Begin Web-based ADAMS Search.” For problems with ADAMS, please contact the NRC's Public Document Room (PDR) reference staff at 1-800-397-4209, at 301-415-4737, or by email to PDR.Resource@nrc.gov. DG-1404, Revision 1, is available in ADAMS under Accession No. ML23194A194.

• NRC's PDR: The PDR, where you may examine and order copies of publicly available documents, is open by appointment. To make an appointment to visit the PDR, please send an email to PDR.Resource@nrc.gov or call 1-800-397-4209 or 301-415-4737, between 8 a.m. and 4 p.m. eastern time (ET), Monday through Friday, except Federal holidays.

The NRC encourages electronic comment submission through the Federal rulemaking website ( https://www.regulations.gov ). Please include Docket ID NRC-2022-0073 in your comment submission.

The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at https://www.regulations.gov as well as enter the comment submissions into ADAMS. The NRC does not routinely edit comment submissions to remove identifying or contact information.

If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.

The NRC is issuing for public comment a DG in the NRC's “Regulatory Guide” series. This series was developed to describe methods that are acceptable to the NRC staff for implementing specific parts of the agency's regulations, to explain techniques that the staff uses in evaluating specific issues or postulated events, and to describe information that the staff needs in its review of applications for permits and licenses.

The DG, entitled “Guidance for a Technology-Inclusive Content-of-Application Methodology to Inform the Licensing Basis and Content of Applications for Licenses, Certifications, and Approvals for Non-Light-Water Reactors,” is temporarily identified by its task number, DG-1404, Revision 1.

DG-1404, Revision 0, issued for public comment on May 25, 2023 (88 FR 33846), provides guidance to assist interested parties and prospective applicants for construction permits, operating licenses, combined licenses, manufacturing licenses, standard design approval, or design certifications in developing the content of applications using the LMP process. The guidance identifies an acceptable method for developing major portions of safety analysis reports in accordance with the LMP process to describe non-light-water reactor facility designs and to help ensure the minimum requirements are met for the type of application selected. Revision 1 to DG-1404 is now being issued for public comment as the NRC has completed its development of Appendix B and made conforming changes to the DG-1404. The newly added Appendix B provides additional guidance for the scope, level of detail, elements, and plant representation for a PRA supporting an LMP-based part 50 of title 10 of the Code of Federal Regulations (10 CFR) construction permit application. Conforming changes to the base document of DG-1404 Revision 0 (staff position C.3.d) and DG-1404 Appendix A Revision 0 (item 1) were made to reflect the addition of Appendix B. The changes to the DG-1404, Revision 0 base document and Appendix A are shown in strikeout so that these changes can be easily identified (ADAMS Accession No. ML23248A343).

As noted in the Federal Register on December 9, 2022 (87 FR 75671), this document is being published in the “Proposed Rules” section of the Federal Register to comply with publication requirements under 1 CFR chapter I.

DG-1404, Revision 1, if finalized, would not constitute backfitting as defined in 10 CFR 50.109, “Backfitting,” and as described in Management Directive (MD) 8.4, “Management of Backfitting, Forward Fitting, Issue Finality, and Information Requests”; constitute forward fitting as that term is defined and described in MD 8.4; or affect the issue finality of any approval issued under 10 CFR part 52. The guidance would not apply to any current licensees or applicants under 10 CFR parts 50 or 52 or existing or requested approvals under 10 CFR part 52, and therefore its issuance cannot be a backfit or forward fit or affect issue finality. Further, as explained in DG-1404, Revision 1, applicants and licensees would not be required to comply with the positions set forth in DG-1404, Revision 1.

A member of the public may, at any time, submit suggestions to the NRC for improvement of existing RGs or for the development of new RGs. Suggestions can be submitted on the NRC's public website at https://www.nrc.gov/reading-rm/doc-collections/reg-guides/contactus.html. Suggestions will be considered in future updates and enhancements to the “Regulatory Guide” series.

Comments Invited

The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2023-1822; Project Identifier MCAI-2023-00653-T” at the beginning of your comments. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this proposal because of those comments.

Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to regulations.gov, including any personal information you provide. The agency will also post a report summarizing each substantive verbal contact received about this NPRM.

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Dan Rodina, Aviation Safety Engineer, FAA, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 206-231-3225; email dan.rodina@faa.gov. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2023-0092, dated May 5, 2023 (EASA AD 2023-0092) (also referred to as the MCAI), to correct an unsafe condition on all Airbus SAS Model A310 series airplanes. The MCAI states that new or more restrictive airworthiness limitations have been developed.

EASA AD 2023-0092 specifies that it requires a task (limitation) already in Airbus A310 Airworthiness Limitations Section (ALS), Part 2, Damage Tolerant Airworthiness Limitation Items (DT-ALI), Revision 03, dated December 14, 2018, that is required by EASA AD 2019-0091, dated April 26, 2019 (which corresponds to FAA AD 2019-20-06, Amendment 39-19759 (84 FR 55859) (AD 2019-20-06)), and that incorporation of EASA AD 2023-0092 invalidates (terminates) prior instructions for that task. This proposed AD therefore would terminate the limitations for the corresponding tasks identified in the service information referenced in EASA AD 2023-0092 only, as required by paragraph (g) of AD 2019-20-06.

The FAA is proposing this AD to address fatigue cracking, damage, or corrosion in principal structural elements. The unsafe condition, if not addressed, could result in reduced structural integrity of the airplane. You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2023-1822.

The FAA reviewed EASA AD 2023-0092, which describes new or more restrictive airworthiness tasks for airplane structures. This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in ADDRESSES section.

This product has been approved by the aviation authority of another country and is approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI referenced above. The FAA is issuing this NPRM after determining that the unsafe condition described previously is likely to exist or develop in other products of the same type design.

This proposed AD would require revising the existing maintenance or inspection program, as applicable, to incorporate new or more restrictive airworthiness limitations, which are specified in EASA AD 2023-0092 described previously, as incorporated by reference. Any differences with EASA AD 2023-0092 are identified as exceptions in the regulatory text of this proposed AD.

This proposed AD would require revisions to certain operator maintenance documents to include new actions ( e.g., inspections). Compliance with these actions is required by 14 CFR 91.403(c). For airplanes that have been previously modified, altered, or repaired in the areas addressed by this proposed AD, the operator may not be able to accomplish the actions described in the revisions. In this situation, to comply with 14 CFR 91.403(c), the operator must request approval for an alternative method of compliance (AMOC) according to paragraph (k)(1) of this proposed AD.

In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA developed a process to use some civil aviation authority (CAA) ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has been coordinating this process with manufacturers and CAAs. As a result, the FAA proposes to incorporate EASA AD 2023-0092 by reference in the FAA final rule. This proposed AD would, therefore, require compliance with EASA AD 2023-0092 through that incorporation, except for any differences identified as exceptions in the regulatory text of this proposed AD. Using common terms that are the same as the heading of a particular section in EASA AD 2023-0092 does not mean that operators need comply only with that section. For example, where the AD requirement refers to “all required actions and compliance times,” compliance with this AD requirement is not limited to the section titled “Required Action(s) and Compliance Time(s)” in EASA AD 2023-0092. Service information required by EASA AD 2023-0092 for compliance will be available at regulations.gov by searching for and locating Docket No. FAA-2023-1822 after the FAA final rule is published.

The FAA's process of incorporating by reference MCAI ADs as the primary source of information for compliance with corresponding FAA ADs has been limited to certain MCAI ADs (primarily those with service bulletins as the primary source of information for accomplishing the actions required by the FAA AD). However, the FAA is now expanding the process to include MCAI ADs that require a change to airworthiness limitation documents, such as airworthiness limitation sections.

For these ADs that incorporate by reference an MCAI AD that changes airworthiness limitations, the FAA requirements are unchanged. Operators must revise the existing maintenance or inspection program, as applicable, to incorporate the information specified in the new airworthiness limitation document. The airworthiness limitations must be followed according to 14 CFR 91.403(c) and 91.409(e).

The previous format of the airworthiness limitation ADs included a paragraph that specified that no alternative actions ( e.g., inspections) or intervals may be used unless the actions and intervals are approved as an AMOC in accordance with the procedures specified in the AMOC paragraph under “Additional AD Provisions.” This new format includes a “New Provisions for Alternative Actions and Intervals” paragraph that does not specifically refer to AMOCs, but operators may still request an AMOC to use an alternative action or interval.

The FAA estimates that this AD, if adopted as proposed, would affect 1 airplane of U.S. registry. The FAA estimates the following costs to comply with this proposed AD:

The FAA has determined that revising the existing maintenance or inspection program takes an average of 90 work-hours per operator, although the FAA recognizes that this number may vary from operator to operator. In the past, the FAA has estimated that this action takes 1 work-hour per airplane. Since operators incorporate maintenance or inspection program changes for their affected fleet(s), the FAA has determined that a per-operator estimate is more accurate than a per-airplane estimate. Therefore, the FAA estimates the total cost per operator to be $7,650 (90 work-hours × $85 per work-hour).

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.

The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

The FAA has determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify this proposed regulation:

(1) Is not a “significant regulatory action” under Executive Order 12866,

(2) Would not affect intrastate aviation in Alaska, and

(3) Would not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

I. Background

The Department is proposing to amend ATF regulations to implement the provision of the Bipartisan Safer Communities Act, Public Law 117-159, sec. 12002, 136 Stat. 1313, 1324 (2022) (“BSCA”), that amended the definition of “engaged in the business” in the Gun Control Act of 1968 (“GCA”) at 18 U.S.C. 921(a)(21)(C), and to facilitate compliance with the statute.

The Attorney General is responsible for enforcing the GCA. This responsibility includes the authority to promulgate regulations necessary to enforce the provisions of the GCA. See 18 U.S.C. 926(a). Congress and the Attorney General have delegated the responsibility for administering and enforcing the GCA to the Director of ATF (“Director”), subject to the direction of the Attorney General and the Deputy Attorney General. See 28 U.S.C. 599A(b)(1)-(2), (c)(1); 28 CFR 0.130(a)(1) and (2); Treasury Department Order No. 221, sec. (2)(a), (d), 37 FR 11696, 11696-97 (June 10, 1972). Accordingly, the Department and ATF have promulgated regulations necessary to implement the GCA. See 27 CFR part 478.

The GCA, at 18 U.S.C. 922(a)(1)(A), makes it unlawful for any person, except a licensed dealer, to “engage in the business” of dealing in firearms. 1 The GCA further provides that no person shall engage in the business of dealing in firearms until the person has filed an application with and received a license to do so from the Attorney General (18 U.S.C. 923(a)), who has delegated that function to ATF (28 CFR 0.130(a)(1)). The application contains information necessary to determine eligibility for licensing and must include a photograph, fingerprints of the applicant, and a license application fee. The fee for dealers in firearms other than destructive devices is currently set by the GCA at $200 for the first three-year period and $90 for a renewal period of three years. 18 U.S.C. 923(a)(3)(B); 27 CFR 478.42(c)(2). The Application for Federal Firearms License, ATF Form 7(5310.12)/7CR (5310.16) (“Form 7”), requires the applicant to include a completed Federal Bureau of Investigation (“FBI”) Form FD-258 (“Fingerprint Card”) and a photograph for all responsible persons, including sole proprietors. See ATF Form 7, Instruction 6.

Significantly, under the GCA, once licensed, firearms dealers are required to conduct background checks through the FBI's National Instant Criminal Background Check System (“NICS”) on prospective firearm recipients to prevent prohibited persons from receiving firearms, and to maintain firearms transaction records for crime gun tracing purposes. See 18 U.S.C. 922(t); 923(g)(1)(A). Persons who willfully engage in the business of dealing in firearms without a license are subject to a term of imprisonment of up to five years, a fine of up to $250,000, or both. Id. 922(a)(1)(A); 924(a)(1)(D); 3571(b)(3).

The term “dealer” is defined by the GCA, 18 U.S.C. 921(a)(11)(A), and 27 CFR 478.11, to mean “any person engaged in the business of selling firearms at wholesale or retail.” However, as originally enacted, the GCA did not define the term “engaged in the business.”  2 Nor did ATF define the term “engaged in the business” in the original GCA implementing regulations. 3 Although courts had “continually found that the current situation” was “adequate for enforcement purposes,” ATF published an Advance Notice of Proposed Rulemaking (“ANPRM”) in the Federal Register in 1979 in an effort to “develop a workable, commonly understood definition of [‘engaged in the business’].” See 44 FR 75186, 75186-87 (Dec. 19, 1979) (“1979 ANPRM”); 45 FR 20930 (Mar. 31, 1980) (extending the comment period for 30 more days). The ANPRM referenced the lack of a common understanding of that term by the courts and requested comments from the public and industry on how the phrase should be defined and the feasibility and desirability of defining it.

ATF received 844 comments in response, of which approximately 551, or 65.3 percent, were in favor of ATF defining that term. 4 This included approximately 324 firearms dealers in favor of defining the term. However, none of the proposed definitions appeared “to be broad enough to cover all possible circumstances and still be narrow enough to be of real benefit in any particular case.”  5 One possible definition ATF considered would have established a threshold number of firearms sales per year to serve as a baseline for when a person would qualify as a dealer. The threshold numbers proposed ranged from “more than one” to “more than 100” per year. ATF did not adopt that proposal because it would have potentially interfered with tracing firearms by persons who avoided obtaining a license (and therefore kept no records) by selling firearms under the minimum threshold. 6 Ultimately, ATF decided not to proceed further with rulemaking at that time. Congress also had not yet acted on then-proposed legislation—the McClure-Volkmer bill (discussed below)—which, among other provisions, sought to define “engaged in the business.”  7 For additional reasons why ATF has not adopted a minimum number of sales, see Section II.D of this preamble.

Approximately six years later, the McClure-Volkmer bill was enacted as part of the Firearms Owners' Protection Act (“FOPA”), Public Law 99-308, 100 Stat. 449 (1986). With its passage, FOPA added a statutory definition of “engaged in the business” to the GCA. As applied to a person selling firearms at wholesale or retail, it defined the term “engaged in the business” in 18 U.S.C. 921(a)(21)(C) as “a person who devotes time, attention, and labor to dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms.”  8 The term excluded “a person who makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms.”  9 FOPA further defined the term “with the principal objective of livelihood and profit” to mean “that the intent underlying the sale or disposition of firearms is predominantly one of obtaining livelihood and pecuniary gain, as opposed to other intents, such as improving or liquidating a personal firearms collection.”  10 Congress amended FOPA a few months later, clarifying that “proof of profit” was not required “as to a person who engages in the regular and repetitive purchase and disposition of firearms for criminal purposes or terrorism.”  11

Consistent with their text, the definitions' purposes were to clarify that individuals not otherwise engaged in the business of dealing firearms who make only occasional firearms sales for a hobby are not required to obtain a license, and to benefit law enforcement “by establishing clearer standards for investigative officers and assisting in the prosecution of persons truly intending to flout the law.”  12 The legislative history also reveals that Congress did not intend to limit the license requirement to only persons for whom selling or disposing of firearms is a principal source of income or a principal business activity. The Committee Report stated, “[t]hus, this provision would not remove the necessity for licensing from part-time businesses or individuals whose principal income comes from sources other than firearms, but whose main objective with regard to firearm transfers is profit, rather than hobby.”  13

Two years after enactment, FOPA's definition of “engaged in the business” was incorporated into ATF's implementing regulations at 27 CFR 178.11 (now 478.11) in defining the term “Dealer in firearms other than a gunsmith or a pawnbroker.”  14 At the same time, consistent with the statutory text and legislative history, ATF amended the regulatory term “dealer” to clarify that the term includes “any person who engages in such business or occupation on a part-time basis.”  15

With respect to “personal collections,” FOPA included a provision, codified at 18 U.S.C. 923(c), that expressly authorized licensees to maintain and dispose of private firearms collections separately from their business operations. However, under FOPA, as amended, the “personal collection” provision was and remains subject to three limitations. 18 U.S.C. 923(c). First, if a licensee records the disposition ( i.e., transfer) of any firearm from their business inventory into a personal collection, that firearm legally remains part of the licensee's business inventory until one year has elapsed after the date of transfer. Should the licensee wish to sell or otherwise dispose of any such “personal” firearm during that one-year period, the licensee must re-transfer the applicable firearm back into the business inventory at the licensee's business premises “with appropriate recording.”  16 A subsequent transfer from the business inventory would then be subject to the recordkeeping and background-check requirements of the GCA applicable to all other firearms in the business inventory. Second, if a licensee acquires or disposes of any firearm for the purpose of willfully evading the restrictions placed upon licensees under the GCA, that firearm always legally remains part of the business inventory. Thus, “circuitous transfers are not exempt from otherwise applicable licensee requirements.”  17 Third, even when a licensee has made a bona fide transfer of a firearm from their personal collection, section 923(c) requires the licensee to record the description of the firearm in a bound volume along with the name, place of residence, and date of birth of an individual transferee, or if a corporation or other business entity, the transferee's identity and principal and local places of business. 18 ATF incorporated these provisions into its FOPA implementing regulations in 1988. 19

Courts interpreting the 1986 FOPA definition of “engaged in the business” found a number of factors relevant to assessing whether a person met that standard. For example, in one leading case, the U.S. Court of Appeals for the Third Circuit listed the following nonexclusive factors for consideration to determine whether the defendant's principal objective was livelihood and profit ( i.e., economic): (1) quantity and frequency of sales; (2) location of the sales; (3) conditions under which the sales occurred; (4) defendant's behavior before, during, and after the sales; (5) price charged for the weapons and the characteristics of the firearms sold; and (6) intent of the seller at the time of the sales. United States v. Tyson, 653 F.3d 192, 200-01 (3d Cir. 2011). The court expanded further that, “[a]s is often the case in such analyses, the importance of any one of these considerations is subject to the idiosyncratic nature of the fact pattern presented.” Id. at 201. In a separate case, the Third Circuit also stated, “[a]lthough the definition explicitly refers to economic interests as the principal purpose, and repetitiveness as the modus operandi, it does not establish a specific quantity or frequency requirement. In determining whether one is engaged in the business of dealing in firearms, the finder of fact must examine the intent of the actor and all circumstances surrounding the acts alleged to constitute engaging in business. This inquiry is not limited to the number of weapons sold or the timing of the sales.” United States v. Palmieri, 21 F.3d 1265, 1268 (3d Cir. 1994), vacated on other grounds, 513 U.S. 957 (1994). 20

On January 4, 2016, President Obama announced several executive actions to reduce gun violence and to make communities across the United States safer. Among them was a requirement that ATF clarify, in a manner consistent with court rulings on the issue: (1) that a person can be engaged in the business of dealing in firearms regardless of the location in which firearm transactions are conducted, and (2) that there is no specific threshold number of firearms purchased or sold that triggers the licensure requirement. 21 To provide this clarification, ATF published a guidance document entitled Do I Need a License to Buy and Sell Firearms?, ATF Publication 5310.2 (Jan. 2016), https://www.atf.gov/file/100871/download, which addressed these topics. The guidance was developed to assist unlicensed persons in understanding when they will likely need to obtain a license as a dealer in firearms. ATF is updating this guidance to conform with the “engaged in the business” definition as amended by the BSCA. Further, once a final rule is adopted based on this NPRM, ATF intends to update the guidance to include additional detail as needed to conform with the rule.

Over 35 years after FOPA's enactment, on June 25, 2022, President Biden signed into law the Bipartisan Safer Communities Act, Public Law 117-159, 136 Stat. 1313. Section 12002 of the BSCA broadened the definition of “engaged in the business” under 18 U.S.C. 921(a)(21)(C) to all persons who intend to “predominantly earn a profit” from wholesale or retail dealing in firearms by eliminating the requirement that a person's “principal objective” of purchasing and reselling firearms must include both “livelihood and profit.” The statute now provides that, as applied to a dealer in firearms, the term “engaged in the business” means “a person who devotes time, attention, and labor to dealing in firearms as a regular course of trade or business to predominantly earn a profit through the repetitive purchase and resale of firearms.” However, the BSCA definition does not include “a person who makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms.” 18 U.S.C. 921(a)(21)(C).

As now defined by the BSCA, the term “to predominantly earn a profit” means that the person who engages in selling or disposing of firearms has a predominant intent of obtaining pecuniary gain, as opposed to other intents, such as improving or liquidating a personal firearms collection. The statutory definition further provides that proof of profit is not required as to a person who engages in the regular and repetitive purchase and disposition of firearms for criminal purposes or terrorism. 18 U.S.C. 921(a)(22). According to the BSCA's sponsors, the BSCA's change to the definition was driven by “confusion about the GCA's definition of `engaged in the business,' as it pertained to individuals who bought and resold firearms repetitively for profit, but possibly not as the principal source of their livelihood.”  22 The sponsors “maintain[ed] that these changes clarify who should be licensed, eliminating a `gray' area in the law, ensuring that one aspect of firearms commerce is more adequately regulated.”  23 Congress did not make the same amendment to the various definitions of “engaged in the business” in 18 U.S.C. 921(a)(21) with respect to licensed gunsmiths, manufacturers, or importers. 24

On March 14, 2023, President Biden issued Executive Order 14092, “Reducing Gun Violence and Making Our Communities Safer.” That order requires the Attorney General to report actions taken to implement the BSCA and to develop and implement a plan to: (1) clarify the definition of who is engaged in the business of dealing in firearms, and thus required to become Federal firearms licensees (“FFLs”), in order to increase compliance with the Federal background check requirement for firearm sales, including by considering a rulemaking, as appropriate and consistent with applicable law; and (2) prevent former FFLs whose licenses have been revoked or surrendered from continuing to engage in the business of dealing in firearms. 25

This NPRM proposes to implement the “engaged in the business” provisions of the BSCA  26 and the Department's plan in response to Executive Order 14092 by making conforming changes to the new or amended definitions, by clarifying the updated BSCA definition of “engaged in the business,” and by preventing former FFLs whose licenses have been revoked or surrendered from continuing to engage in the business of dealing in firearms. The rule proposes to accomplish this clarity and deterrence by setting forth specific activities demonstrating when an unlicensed person's buying and selling of firearms presumptively rises to the level of being “engaged in the business,” thus requiring that person to obtain a dealer's license, conduct background checks, and abide by the other requirements set forth in the GCA. At the same time, it recognizes that individuals who purchase firearms for the enhancement of a personal collection or a legitimate hobby are permitted by the GCA to occasionally buy and sell firearms for those purposes without the need to obtain a license.

As stated previously, the BSCA revised 18 U.S.C. 921(a)(21)(C) to change part of the definition of persons “engaged in the business” of dealing in firearms. This amendment broadened the definition to reflect that it applies to persons who engage in the business of purchasing and selling firearms at wholesale or retail with the predominant purpose of earning a profit, rather than just to persons whose primary purpose is both livelihood and profit. This means “that the intent underlying the sale or disposition of firearms is predominantly one of obtaining pecuniary gain, as opposed to other intents, such as improving or liquidating a personal firearms collection.” 18 U.S.C. 921(a)(22). “As a result, the BSCA definitional changes could make some, but not all, intrastate, private firearm transfers subject to GCA recordkeeping and background check requirements” that previously were not subject to those requirements, “if those transfers are made by profit-oriented, repetitive firearms buyers and sellers.”  27

To implement the new statutory language, this proposed rule amends paragraph (c) of the regulatory definition of “engaged in the business,” in § 478.11, pertaining to a “dealer in firearms other than a gunsmith or pawnbroker,” to conform with 18 U.S.C. 921(a)(21)(C) by removing the phrase “with the principal objective of livelihood and profit” and replacing it with the phrase “to predominantly earn a profit.” This proposed rule also amends § 478.11 to conform with new 18 U.S.C. 921(a)(22) by adding the statutory definition of “predominantly earn a profit” as a new regulatory definition. Additionally, this rule proposes to move the regulatory definition of “terrorism,” which currently exists in the regulations under

Table of Contents I. Introduction II. Proposal Two, Order No. 6659, and Direction for Further Proceedings III. Notice and Comment IV. Ordering Paragraphs I. Introduction

On May 26, 2023, the Postal Service filed a petition pursuant to 39 CFR 3050.11 requesting that the Commission initiate a rulemaking proceeding to consider changes to analytical principles relating to periodic reports. 1 The Petition identified the proposed analytical changes as Proposal Two. In Order No. 6659 the Commission conditionally approved Proposal Two but directed the Postal Service to propose further changes to analytical principles relating to periodic reports to address what the Commission found to be outstanding issues with respect to cost identification and attribution for interagency agreements (IAAs). 2

Background. The Postal Service Reform Act of 2022  3 modified and expanded the Postal Service's ability to enter into IAAs to provide property and services to, or on behalf of, other government agencies. Specifically, 39 U.S.C. 3703 for the first time authorizes the Postal Service to enter into agreements with agencies of any state government, local government, or tribal government to provide property or nonpostal services to the public on behalf of such agencies for non-commercial purposes. At the same time, with respect to the Postal Service's pre-existing authority under 39 U.S.C. 411 to provide property and services to other Federal agencies, the PSRA specifies that “[t]he Postal Service may establish a program to provide property and nonpostal services to other Government [ i.e., federal] agencies within the meaning of section 411  4 , but only if such program provides a net contribution to the Postal Service, defined as reimbursement that covers at least 100 percent of the costs attributable . . ..” 39 U.S.C. 3704.

Under the PSRA, the Postal Service must submit a report to the Commission after the close of each fiscal year that “analyzes costs, revenues, rates, and quality of service for each agreement or substantially similar set of agreements for the provision of property or nonpostal services under section 3703 or the program as a whole under section 3704, . . . using such methodologies as the Commission may prescribe, and in sufficient detail to demonstrate compliance with the requirements of [Chapter 37 of Title 39 of the United States Code].” 39 U.S.C. 3705(a). Upon receiving the Postal Service's report and providing an opportunity for public comment, the Commission must make a written determination of compliance. 39 U.S.C. 3705(e).

In the Commission's FY 2022 Annual Compliance Determination, 5 the Commission directed the Postal Service to develop a proposed methodology (or methodologies) for calculating and attributing costs and revenue to IAAs authorized under 39 U.S.C. 3703 and 3704, and to initiate a rulemaking proceeding to establish such methodology (or methodologies) in accordance with 39 CFR 3050.11 by no later than May 31, 2023. Id. at 102. As directed, the Postal Service initiated the instant proceeding to propose a categorical approach to identifying costs and revenue for similar types, or groupings, of IAAs. Petition, Proposal Two at 2-3.

Order No. 6659 and direction for further proceedings. In Order No. 6659 the Commission conditionally approved Proposal Two, but directed the Postal Service to propose further changes to analytical principles relating to periodic reports to address specific issues that the Commission found remained unaddressed. First, the Commission directed the Postal Service to develop a proposed change in accepted analytical principles to develop a separate line item (or line items) in the Cost and Revenue Analysis (CRA) and related workbooks to enable the attribution of costs and related revenue to IAAs. Order No. 6659 at 16. Second, for agreements with government agencies that involve the provision of both postal services and property or nonpostal services, the Commission directed the Postal Service to develop a proposed change in analytical principles to separately account for the costs and revenue for those respective portions. Id. The Commission directed the Postal Service to file proposals related to these issues by September 29, 2023. Id. The Commission will then accept comments on the Postal Service's proposals until October 16, 2023. Id. at 18.

Docket No. RM2023-7 will remain open for consideration of matters raised in Order No. 6659. More information on this docket may be accessed via the Commission's website at http://www.prc.gov. Interested persons may submit comments on the Postal Service's proposals no later than October 16, 2023. Pursuant to 39 U.S.C. 505, Manon A. Boudreault shall continue to serve as an officer of the Commission (Public Representative) to represent the interests of the general public in this proceeding.

It is ordered:

1. For purposes of periodic reporting to the Commission, the Commission conditionally approves the changes in analytical principles proposed by the Postal Service in Proposal Two.

2. Docket No. RM2023-7 will remain open for consideration of the matters raised in Order No. 6659.

3. The Postal Service shall file information addressing the issues identified in the body of this Order by September 29, 2023.

4. Comments by interested persons on the Postal Service's proposals are due no later than October 16, 2023.

5. Pursuant to 39 U.S.C. 505, Manon A. Boudreault shall continue to serve as an officer of the Commission (Public Representative) to represent the interests of the general public in this docket.

6. The Secretary shall arrange for publication of this order in the Federal Register .

Table of Contents I. Introduction II. Proposal Four III. Notice and Comment IV. Ordering Paragraphs I. Introduction

On August 28, 2023, the Postal Service filed a petition pursuant to 39 CFR 3050.11 requesting that the Commission initiate a rulemaking proceeding to consider changes to analytical principles relating to periodic reports. 1 The Petition identifies the proposed analytical changes filed in this docket as Proposal Four.

Background. The Priority Mail Transportation Cost Model is used in financial projections of the expected cost coverage for negotiated service agreements (NSAs). Petition, Proposal Four at 1. The current model was introduced in Docket No. R2006-1 and is updated annually in the Annual Compliance Review (ACR), most recently in Docket No. ACR2022. 2 The Postal Service states that the model disaggregates the product-level transportation costs by zone and the resulting cost per cube and cost per pound by zone are applied to a customer's weight and zone profile in order to generate forward-looking cost projections for Priority Mail included in any NSA. Petition, Proposal Four at 1. These projections rely on prior fiscal year's costs with inflation factors applied to reflect the expected changes in costs due to broader economic conditions during the first full year of the NSA. Id. The Postal Service states that, however, these projections do not reflect expected changes in costs due to Postal Service's changing operational conditions during the first full year of the NSA. Id. Thus, the Postal Service proposes several changes to the Priority Mail Transportation Cost Model in Proposal Four to reflect these types of changes more accurately in Priority Mail transportation costs.

Proposal. The Postal Service proposes several changes to the Priority Mail Transportation Cost Model.

First, the Postal Service proposes a correction to the base year model to reflect that a portion of zone 6 pieces utilized distance-related surface transportation during fiscal year (FY) 2022. Id. at 2. The Postal Service states that the current model assumes that zone 6 pieces are transported entirely by air. Id. The Postal Service states that the correction is made by extending the existing methodology used for zones 1-5 up to zone 6. Id.

Second, once the correction to the base year model has been made, the Postal Service proposes the following sequence of actions to adjust the transportation costs by zone to reflect changes in the split between air and surface transportation occurring in the subsequent year due to Postal Service's network change. Id.

A. Collect the proportions of priority mail on air and surface transportation by zone from the Product Tracking and Reporting (PTR) system, for both the base year and the month most recently ended. Id .

B. Compare the base year's data with the most recent month's data and calculate the change in the percentage of Priority Mail transported on air vis-à-vis surface for each zone. Id. at 3.

1. If the absolute change from the base year percentage is less than five percentage points for a zone, then no adjustment to the base year costs is made. Id.

2. If the absolute change from the base year percentage is more than five percentage points for a zone, then the air and surface costs for that zone are adjusted by the following method:

a. The cube-related costs are divided into air-related, distance-related surface, and non-distance-related surface. Id. The Postal Service states that air-related costs include both the air costs and the surface costs associated with a connection to air. Id.

b. The weight-related costs are fully air-related. Id.

c. The non-distance-related surface costs are excluded from the adjustment and remain unchanged. Id. The Postal Service states that these are generally local transportation costs, which would not be affected by a change in the long-distance transportation costs. Id.

d. The air-related costs (for both cube-related and weight-related costs) are adjusted based on the percentage change in the proportion of Priority Mail transported on air for that zone. Id.

e. The distance-related surface costs are adjusted based on the percentage change in the proportion of Priority Mail transported on surface for that zone. Id. at 4.

The Postal Service states that this methodology can be updated and applied monthly to ensure that the transportation costs reflect the most recent operational conditions as operational changes occur throughout the year. Id.

The Postal Service also states that there are two exceptions to this methodology. First, for any NSAs filed during January, the transportation adjustment from November will be used instead of the adjustment from December. Id. The Postal Service explains that this is because the air and surface proportions during peak season are considerably different from the rest of the fiscal year and would not be predictive of the costs that would be incurred during the first full year of the NSA. Id. Second, for Priority Mail Non-Published Rates agreements filed in Docket No. CP2020-170, instead of applying the adjustment every month, the adjustment will only be applied when the price floors are updated every year. Id.

The Postal Service notes that this methodology would only be used for forward-looking financial projections, and NSA cost coverage reported during the ACR would still be calculated using the average costs for the FY. Id. at 4-5.

Rationale. The Postal Service explains that due to the changes in transportation network in FY 2023, the FY 2022 costs for Priority Mail may no longer be predictive of the expected costs for Priority Mail NSAs being negotiated through the end of calendar year 2023. Id. at 5. The Postal Service states that similarly, the FY 2023 costs may also not be predictive of the costs for Priority Mail NSAs being negotiated during calendar year 2024, because of network changes scheduled to take place throughout FY 2024. Id. The Postal Service asserts that Proposal Four provides a methodology that uses current census data from PTR to adjust the base FY transportation costs to reflect the most recent operational changes, which will be an improvement in the accuracy of the projected cost coverage of NSAs. Id.

Impact. According to the Postal Service, the proposed changes have no impact on any product-level costs such as those that would have been reported in the FY 2022 Public Cost and Revenue Analysis Report, because the proposal concerns only the reporting of Priority Mail transportation costs by zone. Id. at 5-6. The Postal Service provides the impact for each component by zone and the combined impact in Library Reference USPS-RM2023-9-NP1 under seal. Id. at 5.

The Commission establishes Docket No. RM2023-9 for consideration of matters raised by the Petition. More information on the Petition may be accessed via the Commission's website at http://www.prc.gov. Interested persons may submit comments on the Petition and Proposal Four no later than September 29, 2023. Pursuant to 39 U.S.C. 505, Madison Lichtenstein is designated as an officer of the Commission (Public Representative) to represent the interests of the general public in this proceeding.

It is ordered:

1. The Commission establishes Docket No. RM2023-9 for consideration of the matters raised by the Petition of the United States Postal Service for the Initiation of a Proceeding to Consider Proposed Changes in Analytical Principles (Proposal Four), filed August 28, 2023.

2. Comments by interested persons in this proceeding are due no later than September 29, 2023.

3. Pursuant to 39 U.S.C. 505, the Commission appoints Madison Lichtenstein to serve as an officer of the Commission (Public Representative) to represent the interests of the general public in this docket.

4. The Secretary shall arrange for publication of this order in the Federal Register .

I. Public Comment Procedures II. Background A. Introduction B. Brief Administrative History of the NPR-A C. Statutory Authority for Managing the NPR-A D. Current Conditions E. Need for the Rule III. Section-by-Section Discussion IV. Procedural Matters I. Public Comment Procedures

If you wish to comment on this proposed rule, you may submit your comments to the BLM by mail, personal or messenger delivery during regular hours (7:45 a.m. to 4:15 p.m.), Monday through Friday, except holidays, or through https://www.regulations.gov (see the ADDRESSES section).

Please make your comments on the proposed rule as specific as possible, confine them to issues pertinent to the proposed rule, explain the reason for any changes you recommend, and include any supporting documentation. Where possible, your comments should reference the specific section or paragraph of the proposal that you are addressing. The BLM is not obligated to consider or include in the Administrative Record for the proposed rule comments that we receive after the close of the comment period (see DATES ) or comments delivered to an address other than those listed earlier (see ADDRESSES ).

Comments, including names and street addresses of respondents, will be available for public review at the address listed under ADDRESSES . Before including your address, telephone number, email address, or other personal identifying information in your comment, be advised that your entire comment, including your personal identifying information, may be made publicly available at any time. While you can ask us in your comment to withhold from public review your personal identifying information, we cannot guarantee that we will be able to do so.

This proposed rule would revise the management framework for surface resources throughout the NPR-A and Special Areas in the NPR-A. The BLM has not updated this framework in the more than 45 years since the original and still current rule for management of NPR-A surface resources and Special Areas was promulgated in 1977. 42 FR 28721 (June 3, 1977). Currently, the legal standards and procedures that govern the NPR-A are scattered throughout several statutes, regulations, plans, and guidance documents. This proposed rule would provide a more comprehensive guide to managing the NPR-A. It would improve upon the existing regulations' standards and procedures to balance oil and gas activities with the protection of surface resources in the NPR-A; designate and assure maximum protection of Special Areas' significant resource values; and maintain and enhance access for long-standing subsistence activities. The proposed rule would also implement statutory provisions that post-date the current regulations, including the Department of the Interior Appropriations Act, Fiscal Year 1981, which directed the Secretary to “conduct an expeditious program of competitive leasing of oil and gas” in the NPR-A, while “provid[ing] for such conditions, restrictions, and prohibitions as the Secretary deems necessary or appropriate to mitigate reasonably foreseeable and significantly adverse effects on . . . surface resources . . . .” Public Law 96-514, 94 Stat. 2957 (1980). The proposed rule would not affect existing leases in the NPR-A.

In the early 20th century, the Federal government established several naval petroleum reserves on public land, including the NPR-A, which President Warren G. Harding designated in 1923. Exec. Order 3797-A. The NPR-A extends from the north slope of the Brooks Range to the Arctic Coast and encompasses approximately 23 million acres of public land.

In the decades that followed, the U.S. Navy began exploring for oil and gas in the NPR-A; however, by the 1970s, as Congress began debating the role of the naval petroleum reserves within the context of the nation's changing energy needs, the NPR-A remained “largely unexplored and almost completely undeveloped.” H.R. Rep. No. 94-156, at 3 (1975). In 1976, Congress passed the NPRPA, which transferred management of the NPR-A to the Department of the Interior (DOI) and directed the President to prepare a study to “determine the best overall procedures” for exploring, developing, and transporting the reserve's oil and gas resources. Public Law 94-258, section 105 (1976) (codified at 42 U.S.C. 6505(b)).

In the NPRPA, Congress sought to strike a balance between exploration and “the protection of environmental, fish and wildlife, and historical or scenic values” in the NPR-A. It did so by directing the Secretary to “promulgate such rules and regulations as he [or she] deems necessary and appropriate for the protection of such values within the reserve.” 42 U.S.C. 6503(b). The Conference Report explained that the Act would immediately vest responsibility for protection of the NPR-A's “natural, fish and wildlife, scenic and historical values . . . in the Secretary of the Interior . . . so that any activities which are or might be detrimental to such values will be carefully controlled.” H.R. Conf. Rep. No. 94-942 (1976). The report stated the Conference Committee's expectation “that the Secretary will take every precaution to avoid unnecessary surface damage and to minimize ecological disturbances throughout the reserve.” Id.

In the same Act, Congress directed that “[a]ny exploration within the Utukok River, the Teshekpuk Lake areas, and other areas designated by the Secretary of the Interior containing any significant subsistence, recreational, fish and wildlife, or historical or scenic value, shall be conducted in a manner which will assure the maximum protection of such surface values to the extent consistent with the requirements of this Act for the exploration of the reserve.” 42 U.S.C. 6504(a). The Conference Report elaborated that the Act would “immediately authorize the Secretary to require that the exploration activities within these designated areas be conducted in a manner designed to minimize adverse impacts on the values which these areas contain.” H.R. Conf. Rep. No. 94-942 (1976). The “maximum protection” standard is an unusually high protective bar in comparison to other statutes granting authority to the BLM. See, e.g., 43 U.S.C. 1632; 16 U.S.C. 7202(c)(2).

There are currently five Special Areas in the NPR-A that protect a wide range of significant subsistence, recreational, fish and wildlife, historical, and scenic values. Responding to the congressional mandate to protect the values of highly sensitive areas in the NPR-A, particularly Teshekpuk Lake and the Utukok River Uplands, which the NPRPA specifically identified for protection, the Secretary in 1977 delineated the boundaries of those two congressionally designated Special Areas and also designated a third: the Colville River Special Area. 42 FR 28723 (June 3, 1977). The Secretary specifically identified the significant resource values to be protected for each of the three Special Areas:

• Colville River: “The central Colville River and some of its tributaries provide critical nesting habitat for the Arctic peregrine falcon, an endangered species. The bluffs and cliffs along the Colville River provide nesting sites with the adjacent areas being utilized as food hunting areas. . . . A total area of approximately 2,300,000 acres within the reserve is identified for inclusion in the Colville River special area.” Id.

• Teshekpuk Lake: “The Teshekpuk Lake and its watershed are an important nesting, staging, and molting habitat for a large number of ducks, geese, and swans. Because of its importance to these migratory birds and numerous other waterbirds, a total of approximately 1,734,000 acres is identified as the Teshekpuk Lake special area.” Id.

• Utukok River Uplands: “The Utukok River Uplands special area contains critical habitat for caribou. The critical decline in the population level of the western Arctic caribou herd (from 70,000 in 1975 to 35,000 in 1976) necessitates maximum protection of this area, which is ordinarily the calving territory for this herd. . . . Because of the nomadic nature of the caribou, a large area encompassing approximately 4,032,000 acres is included within this area.” Id.

In 1999, the Secretary expanded the Colville River and Teshekpuk Lake Special Areas. The Secretary added “much of the Kikiakrorak and Kogosukruk Rivers and an area approximately two miles on either side of these rivers” to the Colville River Special Area, increasing its size to 2.44 million acres. 1 The Secretary also added the 10,000-acre Pik Dunes Land Use Emphasis Area to the Teshekpuk Lake Special Area. 2

In 2004, the Secretary designated a fourth Special Area, Kasegaluk Lagoon, which encompasses 97,000 acres. 70 FR 9096 (Feb. 24, 2005). The Kasegaluk Lagoon Special Area is located in the northwestern corner of the NPR-A and includes important habitat for marine mammals, among other values. 3

In 2013, the Secretary made several decisions concerning Special Areas. First, the Secretary designated a fifth Special Area: Peard Bay. The 107,000-acre area was designated to “protect haul-out areas and nearshore waters for marine mammals and a high use staging and migration area for shorebirds and waterbirds.”  4 Second, the Secretary expanded the Teshekpuk Lake Special Area by 2 million acres “to encompass all the roughly 30-to-50-mile band of land valuable for bird and caribou habitat between Native-owned lands near Barrow and Native-owned lands near Nuiqsut . . . .”  5 Third, the Secretary expanded the Utukok River Uplands Special Area to 7.1 million acres “to more fully encompass prime calving and insect-relief habitat within the NPR-A . . . .”  6 Finally, the Secretary broadened the purpose of the Colville River Special Area to include the “protect[ion of] all raptors, rather than the original intent of protection for arctic peregrine falcons.”  7

The BLM currently manages all five Special Areas in accordance with the NPR-A IAP Record of Decision (ROD) of April 2022. The IAP provides for the management of the NPR-A, designates areas within the NPR-A for oil and gas leasing, infrastructure, and special protections, and identifies stipulations and required operating procedures to mitigate the impact of oil and gas and other permitted activities. 8 The first IAP, which the BLM finalized in 1998, addressed management of the northeast NPR-A. This IAP superseded a 1983 oil and gas leasing environmental impact statement (EIS), which, until 1998, controlled leasing decisions throughout the NPR-A. In 2004 the BLM issued a separate IAP for the northwest NPR-A, and in 2013, the BLM approved an IAP that addressed activities and resources throughout the NPR-A.

The current IAP, adopted in April 2022, was informed by a Final EIS issued by the agency in 2020. The EIS evaluated a range of alternatives for managing oil and gas activities and resources in the NPR-A. These alternatives were informed and shaped by extensive outreach efforts with the public and stakeholders, including:

• 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.

• 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.

• 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, Iñupiat 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:

• Tribes as required by a Presidential Executive Memorandum dated April 29, 1994;

• Communities, Tribal organizations, and Native corporations on the North Slope;

• The U.S. Fish and Wildlife Service and the National Oceanic and Atmospheric Administration— Fisheries pursuant to the Endangered Species Act; and

• 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.

In 1980, Congress authorized competitive leasing of Federal oil and gas resources in the NPR-A. Public Law 96-514 (1980) (codified at 42 U.S.C. 6506a(a)). The BLM held two NPR-A lease sales in 1982 and one each in 1983 and 1984. 9 After receiving no bids during the 1984 lease sale and determining that the oil and gas industry had “little interest in another lease sale,” the BLM discontinued sales in the NPR-A for the next 15 years. 10

In the 1990s, following technological advances and successful development on nearby State lands, industry expressed a desire to resume leasing in the NPR-A. 11 The BLM restarted lease sales in 1999 and, over the next 2 decades, held a total of 15 sales for the NPR-A. These sales initially generated considerable bonus bid revenue for the Federal government and the State of Alaska, as the BLM collected an average of $74 million in bonus bids at sales held in 1999, 2002, and 2004. 12 However, bid revenue dropped off significantly as lands in the NPR-A with the highest potential for development were leased. Between 2006 and 2019, the BLM received an average of just $6 million in bonus bids per sale, and millions of acres offered for lease went unsold. Between 1999 and 2019, the BLM offered nearly 60 million acres of leases in the NPR-A but received bids on just 12 percent of that acreage. 13

The NPRPA is the primary source of management authority for the NPR-A. Under the NPRPA, the Secretary must “assume all responsibilities” for “any activities related to the protection of environmental, fish and wildlife, and historical or scenic values” and “promulgate such rules and regulations as he [or she] deems necessary and appropriate for the protection of such values within the reserve.” 42 U.S.C. 6503(b).

Congress has also directed the Secretary to “conduct an expeditious program of competitive leasing of oil and gas” in the NPR-A. Id. at 6506a(a). But the Secretary must ensure that all activities taken pursuant to the NPRPA “include or provide for such conditions, restrictions, and prohibitions as the Secretary deems necessary or appropriate to mitigate reasonably foreseeable and significantly adverse effects on the surface resources” throughout the NPR-A. Id. at 6506a(b).

The NPRPA also authorizes the Secretary to designate Special Areas to protect “significant subsistence, recreational, fish and wildlife, or historical or scenic value[s]” in the NPR-A and provides that any “exploration” in Special Areas “shall be conducted in a manner which will assure the maximum protection of such surface values to the extent consistent with the requirements of this Act for the exploration of the reserve.” Id. at 6504(a). Congress enacted that provision in 1976, prior to its authorization of competitive leasing in 1980. As a result, that provision expressly references only “exploration” and not leasing or other oil and gas activities. Nonetheless, the BLM has long interpreted that language to require maximum protection of Special Areas' significant resource values from the impacts of all oil and gas activities. 14 In 1980, when Congress authorized the Secretary to lease oil and gas in the NPR-A, it expressly required the BLM to “mitigate reasonably foreseeable and significantly adverse effects on surface resources” throughout the NPR-A. 42 U.S.C. 6506a(b). That mandate mirrored the 1976 Conference Committee's statement that “it . . . expected . . . the Secretary will take every precaution to avoid unnecessary surface damage and to minimize ecological disturbances throughout the reserve” and not solely in Special Areas. H.R. Rep. 94-942, at 21 (1976). The 1980 Act also provided that “any exploration or production undertaken pursuant to this section be in accordance with section 104(b) of the Naval Petroleum Reserves Production Act of 1976.” 90 Stat. 2965. The referenced section of the NPRPA is the maximum protection provision codified at section 6504(a), and thus the maximum protection provision applies to production activities as well as exploration. In any event, it would make little sense for Congress to require maximum protection of surface values from exploration while requiring lesser protection from the greater impacts of oil and gas development. Accordingly, in the BLM's longstanding view, reading those two provisions (42 U.S.C. 6504(a) and 6506a(b)) together, Congress intended that BLM would provide for heightened ( i.e., maximum) protection from the impacts of all oil and gas activities in Special Areas, but provide for lesser protection (mitigating reasonably foreseeable significant impacts) elsewhere throughout the Reserve. Interpreting the special areas provision (6504(a)) to apply only to exploration activities—when Congress chose not to repeal that provision when it authorized leasing,—would lead to the illogical result that BLM is required to apply a higher standard of protection for exploration, only to allow the greater impacts of oil and gas development to harm those same resources. That is, in the BLM's longstanding view, inconsistent with Congressional intent.

Other authorities that guide management of the NPR-A include FLPMA and the ANILCA. Although Congress in 1980 exempted the NPR-A from FLPMA's land use planning and wilderness study requirements, 42 U.S.C. 6506a(c), it did not exempt the NPR-A from FLPMA's other mandates. Hence, the BLM must still “take any action necessary to prevent unnecessary or undue degradation” of all BLM-administered public lands, including within the NPR-A. 43 U.S.C. 1732(b).

Under section 810 of ANILCA, the BLM must “evaluate the effect” of proposed oil and gas activities “on subsistence uses and needs . . . .” 16 U.S.C. 3120(a). If such activities will “significantly restrict subsistence uses,” then the BLM must hold hearings in affected communities, limit activities to “the minimal amount of public lands necessary,” and take “reasonable steps . . . to minimize adverse impacts upon subsistence uses and resources . . . .” Id. Fulfilling section 810's requirements is of crucial importance for the NPR-A, as over 40 communities utilize its resources for subsistence purposes. 15

Conditions in the NPR-A are changing rapidly, as the Arctic continues to warm more than twice as fast as the rest of the Earth. 16 This is causing disruptions to natural ecosystems, Native communities, and subsistence use patterns throughout the NPR-A. Notable changes include accelerating permafrost degradation; impairment of sensitive wildlife habitat and movement corridors, particularly for caribou; alterations in plant communities; and impacts on subsistence activities. 17 From a management standpoint, climate change is “introduc[ing] substantial uncertainty,” particularly “in predicting demographic trends of species in the area[,] and will make the predicted impacts of development more difficult to accurately assess.”  18

At the same time, oil and gas development is continuing in the NPR-A, and this proposed rule would have no effect on existing activities. Approximately 2.5 million acres of the NPR-A are currently leased. The bulk of existing leases are clustered within an area of high development potential between Teshekpuk Lake and the Colville River. 19 Outside of this area, the NPR-A's development potential is medium and low. 20 Production is occurring on two pads in the Greater Mooses Tooth (GMT) Unit immediately west of the community of Nuiqsut. Additional development is planned in the Beartooth Unit, including under the Willow Master Development Plan (MDP), which the BLM approved on March 12, 2023. When fully built out, the Willow project will include three pads with up to 199 wells, a network of roads and pipelines, a central processing facility, and an operations center. 21 In conjunction with the approval of the Willow MDP, the project proponent voluntarily agreed to relinquish approximately 68,000 acres of leases in the NPR-A, including approximately 60,000 acres in the Teshekpuk Lake Special Area. 22 This relinquishment, along with additional provisions adopted in the Willow MDP ROD, will create an additional buffer from exploration and development activities near the calving grounds and migratory routes for the Teshekpuk Lake caribou herd, an important subsistence resource for nearby Alaska Native communities. 23 Significant surface resources are found throughout the NPR-A, but are concentrated in the Teshekpuk Lake Special Area and the other Special Areas. These resources include:

• Caribou: Because caribou exhibit high fidelity to calving grounds, herds are identified based on the location of those grounds. 24 The NPR-A contains extensive calving grounds for two herds: the Teshekpuk Caribou Herd and the Western Arctic Caribou Herd. 25 During most years, the highest density of calving and post-calving use for the Teshekpuk herd occurs southeast of Teshekpuk Lake. Based on the results of a 2022 photo-census, the Teshekpuk herd population appears stable in spite of low birth rates and high harvest levels. 26 The principal calving grounds of the Western Arctic herd are located in the Utukok River Uplands Special Area. After reaching a recorded peak population of 243,000 animals in the 1970s, the Western Arctic herd has declined in recent years. 27 According to the Alaska Department of Fish & Game, the Western Arctic herd population now stands at roughly 164,000 animals. For this reason, the Western Arctic Caribou Herd Working Group recently designated the herd as “Preservative, Declining”—a management designation that triggers harvest and other restrictions—and recommended strengthening protections for the Western Arctic's calving grounds in the NPR-A. 28

• Birds: Concentrations of shore and waterbirds in the NPR-A are among the highest in the Arctic coastal plain. In recognition of this, the National Audubon Society has identified seven Important Bird Areas in the NPR-A, including three within the Colville River, Kasegaluk Lagoon, and Teshekpuk Lake Special Areas. The East Asian-Australasian Flyway Partnership (EAAFP) has also designated the Qupałuk EAAFP Flyway Network Site within the Teshekpuk Lake Special Area. 29 The lake contains an “exceptional” breeding and molting ground for geese and other waterfowl, as an estimated 573,000 birds breed at the lake. The NPR-A also provides habitat for two threatened species—the spectacled eider and the Alaska breeding population of Steller's eider—and 11 BLM Alaska special status species. Many of the bird populations breeding in the Arctic have been in decline since the 1980s; shorebirds as a group have declined by about half and land-birds by about 20 percent. 30

• Fish: Fish are widely distributed in the NPR-A's extensive network of lakes, ponds, alluvial and beaded streams, and adjacent wetlands. The most common fish species are Arctic grayling, broad whitefish, burbot, least cisco, Arctic cisco, Arctic flounder, round whitefish, humpback whitefish, and ninespine stickleback. The NPR-A also provides “essential” habitat for several species of Pacific salmon. 31 Many fish species, particularly anadromous species, migrate both locally and extensively between major drainages to access habitats that support various life history stages. 32 Most of these habitats currently exhibit few, if any, impacts from human activities. 33

• Marine mammals: Eleven species of marine mammals are found in or near the NPR-A, including six cetaceans (bowhead whales, minke whales, gray whales, killer whales, beluga whales, and narwhals), four pinnipeds (pacific walrus, bearded seals, spotted seals, and ringed seals), and the polar bear; four of these species are listed as threatened or endangered under the ESA. Special Areas provide important habitat for many marine mammals, including spotted seals and walruses, which utilize haul-out areas in the Kasegaluk Lagoon and Peard Bay Special Areas, and polar bears, which are increasingly using terrestrial habitats in the Teshekpuk Lake Special Area due to receding sea ice. Overall, the implications of climate change for marine mammals in the Arctic are substantial. Continued arctic warming and the resulting deterioration of sea ice pose a major threat to marine mammals and their prey in the Arctic. 34

• Cultural resources: Although less than 3 percent of the NPR-A has been surveyed for cultural resources, nearly 2,000 sites have been identified. Additionally, there are 925 documented Traditional Land Use Inventory sites in the NPR-A, which are important place names, landmarks, traditional land use sites, travel routes, and other places of cultural importance to the North Slope Iñupiat. These sites have ongoing spiritual and cultural importance to residents of the North Slope. Protecting cultural resources sites, both documented and undocumented, is of concern to the Iñupiat. However, early exploration and development projects on the North Slope had a greater potential to affect cultural resources due to the less stringent regulations and identification requirements than those in place today. For example, oil exploration trails have been associated with some damage to the Qalluvuk site, a traditional fishing and hunting area that also served as a trading station in the 1930s. Other observations, testimony, and traditional knowledge from local residents have documented experiences associated with cultural resource impacts, including the potential disturbance of gravesites and camps from winter seismic exploration activities. 35

• Recreation resources: The NPR-A offers numerous unique and primitive recreational opportunities, including backpacking, boating, sight-seeing, hunting, fishing, tourism, and off-highway vehicle use. Because most of the NPR-A is considered an unmodified natural environment, individual users rarely, if ever, encounter other recreationists. Guided expeditions for backpacking, sight-seeing, and hunting primarily occur in the Utukok River Uplands. Similar recreational activities also occur in the vicinity of Teshekpuk Lake and Umiat. 36

Over 40 communities harvest subsistence resources from the NPR-A, including many of the resources described earlier. Six communities in particular—Anaktuvuk Pass, Atqasuk, Nuiqsut, Point Lay, Utqiagvik, and Wainwright—harvest all or nearly all of their subsistence resources from the NPR-A, including large land mammals (primarily caribou or moose), furbearers and small land mammals, non-salmon fish, waterfowl, upland game birds, and vegetation. Marine mammals and salmon harvesting is less common in the NPR-A; instead, they are harvested in nearshore areas, such as Peard Bay, Elson Lagoon, and Kasegaluk Lagoon. 37

Subsistence harvesting is the cornerstone of the traditional relationship of the Iñupiat people with their environment. Residents of communities in and around the NPR-A rely on subsistence harvests of plant and animal resources for nutrition and their cultural, economic, and social well-being. Activities associated with subsistence—processing; sharing; redistribution networks; cooperative and individual hunting, fishing, whaling, and gathering; and ceremonial activities—strengthen community and family social ties, reinforce community and individual cultural identity, and provide a link between contemporary Alaska Natives and their ancestors. These activities are guided by traditional knowledge based on a long-standing relationship with the environment.

Traditional Iñupiaq values remain strong on the North Slope and include respect for nature, humility, love and respect for elders, cooperation, hunting traditions, knowledge of language, and family and kinship. These values are embedded within all facets of Iñupiaq society, including subsistence hunting and harvesting traditions. The ability to pass on these values through the continuation of traditional subsistence activities in traditional places is critical to maintaining Iñupiat cultural identity. Sharing is one of the core values of Iñupiaq society and culture, which serves to maintain and strengthen familial and social ties both within and between communities on the North Slope. Traditional feasts such as Nalukataq (the spring Whale Festival) and Kivgiq (the Messenger Feast) revolve around the bringing together of communities and the distribution of subsistence foods throughout the community and region. Extensive sharing networks exist between North Slope communities, and between the North Slope and other regions in Alaska. Iñupiaq people continue to identify with the places of their ancestors and return to these places to hunt, fish, camp, gather, and process wild foods. Subsistence activities help maintain the relationship between Iñupiaq people and the land, as do stories, Iñupiaq place names, trails and travel routes, and landmarks. Thus, to the Iñupiat, protection of traditional lands, waters, and the wild resources that inhabit them is essential to maintaining cultural traditions, traditional knowledge, and identity. 38

Impacts on subsistence are occurring on the North Slope with greater frequency as development expands across the region. Nuiqsut, the community closest to current oil and gas development on the North Slope, has experienced the most impacts. Subsistence impacts and concerns have also been documented for Point Lay, Wainwright, Utqiagvik, Atqasuk, and Anaktuvuk Pass. Many of these concerns are related to effects of development, including seismic activity and oil and gas-related research, pipelines, and traffic, on caribou and other terrestrial species.

Overall, future infrastructure, oil and gas development, and other activities in the NPR-A area could have lasting effects on cultural practices, values, and beliefs. The potential impacts of development could result in reduced harvests, changes in uses of traditional lands, and decreased community participation in subsistence harvesting, processing, consuming, sharing, and associated rituals and feasts. Because of this, communities could experience a loss of cultural and individual identity associated with subsistence, a loss of traditional knowledge about the land, damaged social and kinship ties, and effects on spirituality associated with degradation of the NPR-A. 39

The BLM solicits comments on this section. Specifically, BLM welcomes comment from the regulated community including industry, residents of communities in and around the NPR-A, and Alaskan natives and indigenous Tribes who may benefit or bear costs from this proposed rule.

The BLM is proposing this revision because the regulatory framework governing the management and protection of surface resources and Special Areas in the NPR-A needs updating. Conditions throughout the Arctic have changed dramatically since 1977, when the BLM issued the current regulations for management of surface resources and Special Areas in the NPR-A. As discussed in greater detail in Section II.D, the impacts of climate change on the NPR-A's natural environment and Native communities are intensifying. Conditions are changing rapidly in the Arctic, making it necessary and appropriate for the BLM to develop new regulations that account for and respond to these changing conditions. Thus, the proposed rule would direct the BLM to regularly address changing conditions. Among other things, it would require the BLM to conduct an evaluation of Special Areas at least once every 5 years and update Special Area designations to include new resource values. It also would require the BLM to account for any uncertainty concerning the effects of proposed activities.

New and revised standards and procedures are also needed to ensure that the BLM is fulfilling its statutory duties under the NPRPA, FLPMA, and other authorities to the best of its ability. For example, the BLM has a responsibility to “provide for such conditions, restrictions, and prohibitions as the Secretary deems necessary or appropriate to mitigate reasonably foreseeable and significantly adverse effects [of oil and gas activities] on the surface resources” throughout the NPR-A.” 42 U.S.C. 6506a(b). The current regulations, however, provide little detail on the standards and procedures the BLM should use to implement these important requirements.

The BLM also has an obligation to “assure the maximum protection of . . . surface values” within Special Areas “to the extent consistent with the requirements of [the NPRPA] for the exploration of the reserve.” 42 U.S.C. 6504(a). The proposed rule would improve upon the standards and procedures that implement this requirement. For example, the current regulations identify specific measures the BLM may take to assure maximum protection but provide no further guidance on the evaluation and selection of such measures.

In addition, the current regulations do not reflect the full management regime for the NPR-A. This proposed rule would provide a more comprehensive guide to managing the NPR-A. Currently, the applicable legal standards and procedures are scattered throughout several statutes, regulations, plans, and guidance documents. For example, the existing regulations do not integrate with the use of IAPs, which BLM has used either on a regional or area wide basis for the NPR-A for over two decades. Although the BLM is not required to plan for the use of the NPR-A, see 42 U.S.C. 6506a(c), it has chosen to produce the IAP through a public process and has analyzed it in an Environmental Impact Statement. The IAP allocates land uses in the NPR-A and details oil and gas lease stipulations and infrastructure restrictions for Special Areas. The overlay of a regulatory regime to govern the NPR-A, including the development and use of IAPs, would enhance consistency and certainty, particularly with respect to protection of surface resources and Special Areas.

The proposed rule would change the section designations from the current regulations to implement Office of the Federal Register requirements. Some provisions of the existing regulations would not change; we do not discuss those provisions here.

Section 2361.0-1 would be redesignated to § 2361.1. The existing provision states that the purpose of the regulations is “to provide procedures for the protection and control of environmental, fish and wildlife, and historical or scenic values” in the NPR-A. As proposed, § 2361.1 would establish a two-part purpose for the rule to more accurately and completely reflect the scope of the regulations. The first purpose would be to provide standards and procedures to implement 42 U.S.C. 6506a(b), which requires the Secretary to ensure that “[a]ctivities undertaken pursuant to this Act include or provide for such conditions, restrictions, and prohibitions as [she] deems necessary or appropriate to mitigate reasonably foreseeable and significantly adverse effects on the surface resources of the [NPR-A].”

The second purpose outlined in this section would be to provide standards and procedures to implement 42 U.S.C. 6504(a), under which any exploration in Special Areas “shall be conducted in a manner which will assure the maximum protection of such surface values to the extent consistent with the requirements of this Act for the exploration of the [NPR-A].” The standards and procedures to implement these two provisions would also fulfill BLM's mandate to take action necessary to prevent unnecessary or undue degradation under FLPMA, 43 U.S.C. 1732(b).

The existing § 2361.0-2 states the objectives of the regulations. We propose to remove this section because our proposed revision of § 2361.1 would make it redundant.

Section 2361.0-3 would be redesignated to § 2361.3. The existing provision lists the NPRPA as the statutory authority for the regulations. We propose to add the Department of the Interior Appropriations Act, Fiscal Year 1981 (Pub. L. 96-514), which amended the NPRPA and instructed the Secretary to mitigate reasonably foreseeable and significantly adverse effects on the surface resources in the NPR-A.

Section 2361.0-4 would be redesignated to § 2361.4. This section would modify the existing statement that, under the NPRPA, the BLM is responsible for managing surface resources in the NPR-A to add that BLM is now also responsible for managing the subsurface mineral resources in the NPR-A. It would also add that the BLM is responsible for assuring maximum protection of Special Areas' significant resource values. Paragraph (b) would be deleted because the U.S. Geological Survey is no longer responsible for managing exploration in the NPR-A. Secretarial Order 3071, 47 FR 4751 (Feb. 2, 1982); Secretarial Order 3087, 48 FR 8982-83 (Mar. 2, 1983).

Section 2361.0-5 would be redesignated to § 2361.5. In this section, the BLM would update the definition for “exploration” to ensure consistency with NPRPA's definition of “petroleum.” 42 U.S.C. 6501. The BLM would also update the definition of “Special Areas” for consistency with other proposed changes to the regulations. Finally, the BLM would also incorporate a new definition for “Indigenous Knowledge,” consistent with the guidance set forth in the Memorandum issued by the Council on Environmental Quality's Office of Science and Technology Policy on November 30, 2022. 40 New definitions would also be added for “Integrated Activity Plan,” “infrastructure,” and “significant resource value.”

Section 2361.0-7 would be redesignated to § 2361.6. The BLM is proposing to update this section to conform to existing legal authorities, including adding provisions to implement the Department of the Interior Appropriations Act, Fiscal Year 1981, Public Law 96-514 (Dec. 12, 1980), 94 Stat. 2957, 2964, in revised paragraph (a), and the Barrow Gas Field Transfer Act of 1984, Public Law 98-366 (July 17, 1984), 98 Stat. 468, 470, in new paragraph (b)(4).

This proposed new section would establish that if any provision of part 2360 is invalidated, then all remaining provisions would remain in effect. The various components of the proposed rule are distinct. For example, many of the proposed provisions would simply update the regulations to bring them more into line with the BLM's statutory duties. Those updates would function independently of the rest of the proposed rule. The procedural requirements in proposed § 2361.10(b) for protecting surface resources in the NPR-A also would stand alone, as would the codification of existing Special Areas in § 2361.20, the procedural requirements in § 2361.30, and other provisions.

Section 2361.1 would be redesignated to § 2361.10, and the title would be changed from “protection of the environment” to “protection of surface resources” to more closely track with the BLM's statutory authority under 42 U.S.C. 6506a(b), which directs the BLM to “provide for such conditions, restrictions, and prohibitions as the Secretary deems necessary or appropriate to mitigate reasonably foreseeable and significantly adverse effects on the surface resources of the [NPR-A].”

The proposed rule would establish new standards and procedures for managing and protecting surface resources in the NPR-A from the reasonably foreseeable and significantly adverse effects of oil and gas activities. In 1980, Congress authorized the Secretary to mitigate those effects through “necessary or appropriate” “conditions, restrictions, and prohibitions.” 42 U.S.C. 6506a(b). Existing paragraph (a) requires the authorized officer to take action “to mitigate or avoid unnecessary surface damage and to minimize ecological disturbance throughout the reserve to the extent consistent with the requirements of the Act for the exploration of the reserve.” We propose to amend paragraph (a) to mirror the statutory language. As amended, paragraph (a) also would provide further clarification by recognizing that, in some circumstances, the BLM may delay or deny proposed activities that would cause reasonably foreseeable and significantly adverse effects on surface resources.

Existing paragraph (b) would be deleted. It concerns coordination between the BLM and the U.S. Geological Survey, which is no longer relevant because the Geological Survey is no longer responsible for managing exploration in the NPR-A.

Paragraph (b) in the proposed rule would spell out new procedures for protecting surface resources in the NPR-A. As explained above, Congress assigned the BLM the duty to protect the surface resources in the NPR-A, but BLM regulations do not fully explain the scope of that duty. The proposed rule would fill that gap.

In paragraph (b)(1), the proposed rule would direct the BLM to manage oil and gas activities in accordance with the IAP. In doing so, the proposed rule would enshrine longstanding BLM practice into regulations. As explained above, the NPR-A is exempt from FLPMA's planning requirements. Nonetheless, since 1998, the BLM has prepared several IAPs to primarily govern oil and gas activities in the NPR-A. The IAP is a form of land use plan that “addresses a narrower range of multiple use management than a resource management plan.”  41 In the BLM's experience, the IAP provides an invaluable means of evaluating management options, engaging the public, and guiding decision-making, consistent with the BLM's duties under NPRPA and the National Environmental Policy Act. Accordingly, the proposed rule would require the BLM to maintain an IAP, which would help guide BLM use authorizations in the NPR-A but would give way to the regulations in the event of a conflict.

Paragraph (b)(2) would require the BLM, in each decision concerning oil and gas activity in the NPR-A, to adopt measures to mitigate the reasonably foreseeable and significantly adverse effects on surface resources, taking particular care with surface resources that support subsistence. The BLM would do so by documenting for each decision its consideration of effects and how those effects informed the choice of mitigation measures. Paragraphs (b)(3) and (4) would specify that the BLM's effects analysis would include any reasonably foreseeable effects, including indirect effects (those that are “later in time or farther removed in distance”), cumulative effects (those “that result from the incremental effects of proposed activities when added to the effects of other past, present, and reasonably foreseeable actions”), and “any uncertainty concerning the nature, scope, and duration of potential effects.” For example, if the BLM determined that a proposed lease sale's effects on subsistence resources—when added to the effects of other past, present, and reasonably foreseeable actions—could be significantly adverse, then under this proposed section, the BLM would need to adopt measures to mitigate those effects.

Existing paragraphs (c) and (d) would be deleted. Existing paragraph (c) requires the BLM to take maximum protection measures on all actions within Special Areas and identify the boundaries of Special Areas on maps. It also describes some requirements that may constitute “maximum protection measures.” Existing paragraph (d) concerns designation of new Special Areas. This material would be addressed in §§ 2361.20, 2361.30, and 2361.40. Moving this material to those new sections would provide clarification by focusing § 2361.10 on protection of surface resources throughout the NPR-A.

Proposed new paragraph (c) would clarify that for surface resources in Special Areas, the BLM also would have to comply with the provisions governing Special Areas in §§ 2361.20 through 2361.60. Moving the provisions concerning Special Areas to different sections makes that cross-reference necessary.

Proposed new paragraph (d) would require the BLM to include in each oil- and gas-related decision or authorization, “such terms and conditions that provide the Bureau with sufficient authority to fully implement the requirements of this subpart.” That provision would ensure that the BLM incorporates into decision documents whatever language is necessary to enable it to implement any final rule.

Existing paragraph (e)(1) provides that “the authorized officer may limit, restrict, or prohibit use of and access to lands within the Reserve, including special areas.” The existing rule conditions that authority by requiring it to be exercised “consistent with the requirements of the Act and after consultation with appropriate Federal, State, and local agencies and Native organizations.” The proposed rule would specify that the authorized officer has that authority “regardless of any existing authorization.” That added language would clarify that existing authorizations would not prevent the BLM from limiting, restricting, or prohibiting access to the NPR-A consistent with the requirements of the Act. The proposed rule would retain the condition that exercises of that authority must be consistent with the NPRPA, and it would add “and applicable law” to clarify that the authorized officer cannot contradict other legal requirements. Instead of requiring the authorized officer to consult with “Native organizations,” the proposed rule would provide more specificity by requiring consultation with federally recognized Tribes and Alaska Native Claims Settlement Act corporations. Consistent with the BLM's duty under NPRPA and ANILCA, paragraph (e)(1) would also be amended to allow the authorized officer to limit, restrict, or prohibit use of and access to the NPR-A to protect subsistence uses and resources.

Existing paragraph (f) would be amended to recognize the breadth of Federal laws that apply to the management and protection of historical, cultural, and paleontological resources in the NPR-A.

The existing regulations only identify the Colville River, Teshekpuk Lake, and Utukok River Uplands Special Areas by name (43 CFR 2361.1(c)); they do not account for the Kasegaluk Lagoon and Peard Bay Special Areas. Further, the current regulations do not identify or describe the significant resource values associated with each Special Area. Under the NPRPA, the BLM must assure maximum protection of each of these values consistent with exploration of the Reserve. In pursuit of that obligation, this new § 2361.20 would incorporate all five of the existing Special Areas into part 2360 and would identify the significant subsistence, recreational, fish and wildlife, historical, and scenic values that are associated with each of them. The proposed rule would require any lands designated as a Special Area to continue to be managed as such for the already-identified values and any additional values identified through the process set forth in new § 2361.30. The existing regulations (43 CFR 2361.1(c)) require the boundaries of the Special Areas to be depicted on maps available for public inspection in the BLM's Fairbanks District Office. New § 2361.20 would specify that a map of each Special Area is available at the Arctic District Office, which is now the BLM office that oversees the NPR-A. The BLM would also publish and maintain copies of these maps on its website.

The following briefly summarizes the existing Special Areas:

• Colville River Special Area: The Colville River Special Area covers 2.44 million acres along the southeastern boundary of the NPR-A. The Special Area encompasses the Colville River and two of its main tributaries—the Kogosukruk and Kikiakrorak rivers—which collectively provide “one of the most significant regional habitats for raptors in North America” and “the North Slope's single most important area of raptor nesting habitat.”  42 Many other bird species utilize the river corridors, including shorebirds, loons, waterfowl, inland dwelling sea birds, and several unique trans-Beringian migrant passerines. 43 The Special Area also “support[s] the highest concentration of . . . moose on Alaska's North Slope,”  44 “contains world-class paleontological deposits[,] and is an important corridor for subsistence and recreational activities.”  45 Finally, the Special Area includes “numerous sites from prehistoric and historic era human activity.”  46

• Kasegaluk Lagoon Special Area: The Kasegaluk Lagoon Special Area, which encompasses approximately 97,000 acres, borders the Chukchi Sea in the northwestern corner of the NPR-A. It is “rich in wildlife, including migratory birds” and has especially “high values for marine mammals.”  47 The Special Area also “features tidal flats that are rare on the North Slope.”  48 These natural resources contribute to an ecosystem that is “unique . . . for the arctic coast.”  49 Subsistence activities take place in the lagoon, which also “offer[s] primitive recreation experiences, including kayak and small boat paddling along the coast.”  50

• Peard Bay Special Area: The Peard Bay Special Area also borders the Chukchi Sea along the northern boundary of the NPR-A. The Special Area covers 107,000 acres and includes “haul-out areas and nearshore waters for marine mammals and a high use staging and migration area for shorebirds and waterbirds.”  51

• Teshekpuk Lake Special Area: The Teshekpuk Lake Special Area includes 3.65 million acres in the northeastern corner of the NPR-A. Teshekpuk Lake provides “important nesting, staging, and molting habitat for a large number of ducks, geese, and swans,” “prime calving and insect-relief habitat” for the Teshekpuk Caribou Herd, and “overwintering habitat for fish.”  52 “Of particular sensitivity are lands nearest Teshekpuk Lake that are the most heavily used by calving caribou and molting geese. . . .”  53 The Special Areas “is of special importance to subsistence users because of the caribou and fish resources in the area and long-standing subsistence use of the area.”  54 Additionally, the Special Area includes the Pik Dunes—“an unusual geologic feature” that “provide (1) insect-relief habitat for caribou, (2) habitat for several uncommon plant species, and (3) data critical to understanding major climatic fluctuations over the last 12,000 years.”  55

• Utukok River Uplands Special Area: The Utukok River Uplands encompasses 7.1 million acres in the southwestern corner of the NPR-A. The Special Area includes “prime calving and insect-relief habitat” and “the most intensely used summer movement area” for the Western Arctic Caribou Herd. 56 “This large herd disperses widely in the winter, wandering within reach of subsistence hunters from over forty villages in northwest Alaska.”  57 The Special Area also includes “grizzly bear habitat” and “important wilderness characteristics.”  58

While the existing regulations anticipate that the Secretary may identify new Special Areas, they do not specify procedures for designating and amending Special Areas. In the past, the BLM has typically designated Special Areas, and received Special Area recommendations from the public and stakeholders, through the IAP revision and amendment process. Enumerating procedures for designating and amending Special Areas in the regulations would provide clarity for stakeholders and ensure that the BLM fulfills its statutory obligation to assure maximum protection of Special Areas' significant resource values.

This proposed new section would, for the first time, provide standards and procedures for designating and amending Special Areas. Paragraph (a) would require the BLM, at least once every 5 years, to evaluate lands in the NPR-A for significant resource values and designate new Special Areas or update existing Special Areas by expanding their boundaries, recognizing the presence of additional significant resource values, or requiring additional measures to assure maximum protection of significant resource values. The BLM believes that a 5-year timeframe is reasonable considering how rapidly conditions across the Arctic are changing; it is also consistent with the agency's timeframe for similar land use planning evaluations. 59 Paragraph (a)(2) would allow, but not require, the BLM to conduct this evaluation through the IAP amendment process. Paragraph (a)(3) would require the BLM to rely on the best available scientific information, including Indigenous Knowledge, and the best available information concerning subsistence uses and resources. Paragraph (a)(4) would require the BLM to provide meaningful opportunities for public participation in the evaluation process, including review and comment periods and, as appropriate, public meetings.

Existing § 2361.1(d) concerns the submission, content, and public review of recommendations for additional Special Areas. Proposed paragraph (a)(4) would retain the basic contours of that provision but provide additional specificity. It would allow the public to participate in the evaluation process, including by recommending new Special Areas, new significant resource values for existing Special Areas, and measures to assure maximum protection of Special Areas' significant resource values. The proposed rule would require the BLM to evaluate and respond to such recommendations. Similar to existing § 2361.1, proposed paragraph (a)(4) would specify that Special Area recommendations should describe the size and location of the lands, significant resource values, and measures necessary to assure maximum protection of those values.

Paragraph (a)(5) would allow the authorized officer to implement interim measures to assure maximum protection of significant resource values in lands under consideration for designation as a Special Area. This provision would assist the BLM in fulfilling its statutory duty to protect Special Areas.

Paragraph (a)(6) would require that the BLM base decisions to designate Special Areas solely on whether significant resource values are present and would prohibit the BLM from considering the existence of measures to protect or otherwise administer those values. For example, if lands not within a Special Area contained important caribou calving habitat and those lands were already subject to certain protections under the IAP, the BLM would not be permitted to consider those protections during the decision-making process for the proposed designation or update. This change is needed to align the regulations with the NPRPA, which authorizes the Secretary to designate Special Areas based on the presence of “any significant subsistence, recreational, fish and wildlife, or historical or scenic value . . . .” 42 U.S.C. 6504(a).

Paragraph (a)(7) would require the BLM, when designating a Special Area or recognizing the presence of additional significant resource values in an existing Special Area, to adopt measures to assure maximum protection of significant resource values. That provision mirrors the BLM's statutory responsibility under the NPRPA. 42 U.S.C. 6504(a). Paragraph (a)(7) would provide needed clarification by specifying that those measures would supersede any inconsistent provisions in the IAP.

Paragraph (a)(8) would incorporate the requirement of existing § 2361.1(c) that the BLM publish in the Federal Register a legal description of any new Special Area. The proposed rule also would require the BLM to publish in the Federal Register a summary of the significant resource values supporting the Special Area designation. Rather than requiring publication in local newspapers as the current regulations require, the proposed rule would require the BLM to maintain maps of the Special Areas on its website. We believe those proposals would provide more effective public notice.

Section 2361.30(b) would establish a framework for removing lands from Special Area designations. Because Congress identified the Utukok River Uplands and Teshekpuk Lake Special Areas in the NPRPA and required them to be managed to protect surface resources, the BLM cannot remove lands from those Special Area designations absent statutory authorization. See Public Law 94-258, sec. 104(b), 90 Stat. 304 (1976). For other Special Areas, the proposed rule would allow the BLM to remove lands from a Special Area designation only when the significant resource values that supported the designation are no longer present ( e.g., if important wildlife habitat that supported the designation was no longer present). That provision is consistent with the BLM's statutory duty to “assure the maximum protection of such surface values consistent with the requirements of [the NPRPA] for the exploration of the reserve.” Id.

Before removing lands from a Special Area designation, paragraph (b) would require the BLM to provide the public with the opportunity to review and comment on its proposed decision and consult with federally recognized Tribes and Alaska Native Claims Settlement Act corporations. Finally, the proposed rule would require the BLM to document its consideration of those comments. Those requirements would assure public participation in the de-designation process.

As noted above, the proposed rule would enhance the specificity of the current regulations on the mechanisms for assuring maximum protection of significant resource values in Special Areas. The current regulations paraphrase the maximum protection requirement of the NPRPA and provide examples of measures that the BLM could potentially take to assure maximum protection. See 43 CFR 2361.1(c). This proposed new section would establish new standards and procedures for achieving maximum protection of Special Areas' significant resource values, with a specific focus on addressing the impacts of oil and gas activities. Of note, this section would affirmatively establish that assuring maximum protection of significant resource values is the management priority for Special Areas. Under proposed paragraph (a), the BLM would need to comply with this standard and adopt maximum protection measures for each significant resource value associated with a Special Area. Paragraph (b) would require the BLM take such steps to avoid the adverse effects of proposed oil and gas activities on the significant resource values of Special Areas, including by conditioning, delaying action on, or denying proposals for activities.

Paragraph (c) of this section would require oil and gas leasing and new infrastructure to conform to the land use allocations and restrictions identified on maps 2 and 4 of the 2022 IAP ROD that are published along with the final rule, unless the BLM makes revisions in accordance with § 2361.30 of these regulations. Map 2 shows the areas of the NPR-A that are open and closed to oil and gas leasing. The map reflects that approximately 11.8 million acres are open to leasing subject to the terms and conditions detailed in the IAP, while approximately 11 million acres are closed, including most of the Teshekpuk Lake and Utukok River Uplands Special Areas. The map also shows areas that are open to leasing, but subject to no surface occupancy and areas that are outside the BLM's subsurface authority.

Map 4 shows the areas of the NPR-A that are available and unavailable for new infrastructure. The map shows that new infrastructure is prohibited on approximately 8.3 million acres of the NPR-A, limited to “essential” infrastructure on approximately 3.3 million acres, and permitted on approximately 10.8 million acres. The BLM is considering including in the final rule the following definition for the term “essential,” which resembles provisions of Lease Stipulation K-12 from the 2022 IAP ROD: “ Essential means the proposed infrastructure is necessary for development and production on a valid existing onshore or offshore lease and no other feasible and prudent option is available.” The BLM requests feedback on this approach, as well as any additional recommendations on defining this term.

The restrictions identified on Maps 2 and 4 that would apply to new oil and gas leases and infrastructure are detailed in the 2022 IAP ROD and summarized in the following table. 60

Several of the restrictions utilize the term “permanent oil and gas facilities,” which is defined on page A-3 of the 2022 IAP ROD to mean:

The BLM is considering incorporating this definition into the rule and requests feedback on this approach.

The purpose of requiring leasing and infrastructure in Special Areas to conform to IAP maps 2 and 4 is to codify the existing protections and restrictions from the 2022 IAP ROD. As explained above, the BLM developed that land use plan through a lengthy public planning process involving all stakeholders, which stretches back to the development of the 2013 IAP ROD. The 2022 IAP ROD, which is based in large part on the framework set forth in the 2013 IAP ROD, incorporates aspects of the 2020 IAP ROD, and reflects now-settled expectations about the use of the NPR-A. It also reflects what the BLM views as the floor of protections for the NPR-A that grew out of the public planning process. By incorporating the two maps into any final rule, the BLM intends to incorporate the land use allocations, restrictions, and stipulations from the 2022 IAP ROD into the rule without reprinting a lengthy text. We seek public comment in particular on whether this approach accomplishes that goal effectively and efficiently. Do the maps convey sufficient information? Are there additional definitions that should be included in the rule? Is there a better way to accomplish our goal?

Paragraph (c) also would establish a presumption against leasing and new infrastructure on lands in Special Areas that are allocated as available for those activities. That presumption could be overcome if specific information is available to the BLM that clearly demonstrates that those activities can be conducted with no or minimal adverse effects on the significant resource values of the Special Area. The intensive process that led to the IAP resulted in a comprehensive plan for protection of the Special Areas in the NPR-A. To fulfill the BLM's statutory duty to assure maximum protection for those areas' significant resource values, the BLM believes that plan should be treated as a regulatory floor, and additional activities should only be allowed when maximum protection is assured.

The proposed definition of “infrastructure” in § 2361.5(g) would exclude “exploratory wells that are drilled in a single season; infrastructure in support of science and public safety; and construction, renovation, or replacement of facilities on existing gravel pads at previously disturbed sites where the facilities will promote safety and environmental protection.” These exceptions were specifically analyzed and adopted in the 2022 IAP ROD. Proposed § 2361.40(d) would establish three additional exceptions to the oil and gas leasing and new infrastructure prohibitions in paragraph (c). The first exception would permit leasing and infrastructure solely to address drainage of Federal oil and gas resources. Drainage occurs “when a well that is drilled or is in production adjacent to Federal or Indian leases or unleased lands is potentially draining Federal or Indian oil and gas resources.” BLM MS-3160. Surface disturbing activities would be prohibited on any lease tract issued for this purpose. The exception for drainage of Federal oil and gas resources is included because the regulations expressly provide for leasing of tracts that are subject to drainage in order to prevent loss of United States oil and gas resources and potential royalties. See 43 CFR 3130.3. No-surface-occupancy leases are an option the BLM may elect to use when the surface management agency has determined that surface oil and gas facilities and operations would pose an unacceptable risk to the surface resources. The second exception would permit the construction of new infrastructure, including roads, transmission lines, and pipelines, that would primarily benefit communities in and around the NPR-A or would support subsistence activities. The BLM would still need to adopt measures to assure maximum protection of any significant resource values affected by that infrastructure. We propose to include that exception because communities in and around the NPR-A must have some infrastructure to survive and thrive. The third exception would allow the BLM to approve new infrastructure if essential to support exploration or development of a valid existing lease and no practicable alternatives exist that would have less adverse impact on significant resource values of the Special Area. That exception is necessary to accommodate the rights of current leaseholders.

Proposed paragraph (e) would require the BLM to document and consider any uncertainty regarding potential adverse effects on Special Areas and ensure that its actions account for such uncertainty. That provision will help fulfill the BLM's statutory mandate to assure maximum protection for Special Areas' significant resource values.

Proposed paragraph (f) would require the BLM to prepare a Statement of Adverse Effect whenever it cannot avoid adverse effects on a Special Area. In each statement, the BLM would need to describe the significant resource values that may be affected; the nature, scope, and duration of the effects; measures the BLM evaluated to avoid those effects; a justification for not requiring those measures; and measures it would require to minimize and mitigate the adverse effects on significant resource values. The BLM will require mitigation of adverse effects on significant resource values of Special Areas that cannot be avoided or minimized. Measures the BLM may require include compensatory mitigation. Such measures will be developed, evaluated, and, as necessary, adopted in project-specific analyses. Proposed paragraphs (g) and (h) would require the BLM to provide the public with an opportunity to review and comment on any Statement of Adverse Effect and consult with federally recognized Tribes and Alaska Native Claims Settlement Act corporations that have ties to the area.

Finally, proposed paragraph (i) would require the BLM to include in each oil- and gas-related decision or authorization “terms and conditions that provide the Bureau with sufficient authority to fully implement the requirements of this section.” That provision would ensure that the BLM incorporates into decision documents the necessary language to implement any final rule.

The BLM seeks feedback on whether this proposed rule would “assure the maximum protection” of significant resource values in Special Areas “to the extent consistent with the requirements of [the NPRPA] for the exploration of the reserve.” See 42 U.S.C. 6504(a).

The BLM recognizes the overriding importance of subsistence resources to communities in and around the NPR-A. There are over 40 communities that use the NPR-A or the resources it supports for subsistence purposes, including six with significant connections: Anaktuvuk Pass, Atqasuk, Nuiqsut, Point Lay, Utqiagvik, and Wainwright. 61 All of these communities “rely on . . . subsistence resources for their physical, traditional, and social existence,” and many of these resources, including caribou, fish, and waterfowl, are concentrated in Special Areas. 62

Accordingly, this new section would require the BLM to manage Special Areas to protect and support fish and wildlife and their habitats and the associated subsistence use of those areas by rural residents as defined in 50 CFR 100.4, the Department of the Interior's subsistence management regulations for public lands in Alaska. Additionally, this section would require the BLM to provide appropriate access to and within Special Areas for subsistence purposes while still assuring maximum protection of the significant resource values of the Special Areas.

This proposed new section would encourage the BLM to explore co-stewardship opportunities for Special Areas, including co-management, collaborative and cooperative management, and Tribally led stewardship. This provision would advance the Federal government's commitment to strengthening the role of Tribal governments in Federal land management. (Presidential Memorandum on Tribal Consultation and Strengthening Nation-to-Nation Relationships, January 26, 2021; Joint Secretarial Order on Fulfilling the Trust Responsibility to Indian Tribes in the Stewardship of Federal Lands and Waters, Order No. 3403, November 15, 2021.)

Section 2361.2 would be redesignated to § 2361.70. Existing paragraph (a) states that all use authorizations require approval from the authorized officer “[e]xcept for petroleum exploration which has been authorized by the Act.” The proposed rule would omit that exception. The NPRPA of 1976 authorized the Federal government to conduct exploration activities; those activities did not require approval by an authorized officer. Since the 1980 amendments initiated a competitive oil and gas leasing program, all oil and gas activities are conducted by oil and gas companies and require authorization from a BLM authorized officer.

No substantive changes are proposed to § 2361.70(b). The BLM would modify § 2361.70(c) for clarity purposes, and would update § 2361.70(d) to recognize its duties to protect surfaces resources and assure maximum protection of Special Areas' significant resource values in the NPR-A.

Section 2361.3 would be redesignated to § 2361.80. No substantive changes would be made to this section.

E.O. 12866, as amended by E.O. 14094, provides that the Office of Information and Regulatory Affairs (OIRA) within the OMB will review all significant regulatory actions. OIRA has determined that this proposed rule is significant.

E.O. 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the Nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The Executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this proposed rule in a manner consistent with these requirements.

This proposed rule will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). The BLM is not required to prepare an Initial Regulatory Flexibility Analysis with this proposed rule. The BLM welcomes public comments on the impact of this proposed rule on small businesses.

The Small Business Administration (SBA) has developed size standards to carry out the purposes of the Regulatory Flexibility Act, as amended by the Small Business Regulatory Enforcement Fairness Act. The size standards can be found in 13 CFR 121.201. For a specific industry identified by the North American Industry Classification System (NAICS), small entities are defined by the SBA as an individual, limited partnership, or small company considered at “arm's length” from the control of any parent company, which meet certain size standards.

The proposed rule is most likely to affect business currently operating in the oil and gas sector in the NPR-A. There are eight active lessees in NPR-A. SBA size standards identify small business in the crude petroleum extraction (NAICS 211120) and natural gas extraction (NAICS 211130) industries to be those with 1,250 or fewer employees. Some of the eight active lessees meet the SBA criteria for small businesses, which is less than a substantial number of small entities potentially affected. Further, the proposed rule will not affect existing leases and therefore would not have a significant economic impact on small businesses holding these leases.

The proposed rule would not have a significant or unique effect on State, local, or Tribal governments or the private sector. The proposed rule contains no requirements that would apply to State, local, or Tribal governments. The costs that the proposed rule would impose on the private sector are below the monetary threshold established at 2 U.S.C. 1532(a). A statement containing the information required by the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1531 et seq. ) is therefore not required for the proposed rule. This proposed rule is also not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments, because it contains no requirements that apply to such governments, nor does it impose obligations upon them.

This proposed rule would not affect a taking of private property or otherwise having taking implications under E.O. 12630, as it recognizes and is consistent with valid existing rights, including oil and gas leases. This proposed rule would revise the BLM's current management framework for surface resources and Special Areas in the NPR-A. The BLM has not substantially updated this framework since the early 1980s. A takings implication assessment is not required.

Under the criteria in section 1 of Executive Order 13132, this proposed rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. A federalism impact statement is not required. We welcome public comments on the impact this proposed rule could have on the State of Alaska.

The proposed rule would not have a substantial direct effect on the States, on the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the levels of government. It would not apply to States or local governments or State or local governmental entities. The proposed rule would affect the relationship between operators, lessees, and the BLM, but it does not directly impact the States. Therefore, in accordance with Executive Order 13132, the BLM has determined that this proposed rule does not have sufficient federalism implications to warrant preparation of a Federalism Assessment.

This proposed rule complies with the requirements of E.O. 12988. More specifically, this proposed rule meets the criteria of section 3(a), which requires agencies to review all regulations to eliminate errors and ambiguity and to write all regulations to minimize litigation. This proposed rule also meets the criteria of section 3(b)(2), which requires agencies to write all regulations in clear language with clear legal standards.

The Department strives to strengthen its government-to-government relationship with Indian Tribes through a commitment to consultation with Indian Tribes and recognition of their right to self-governance and Tribal sovereignty.

The BLM evaluated this proposed rule under the Department's consultation policy and under the criteria in E.O. Order 13175 to identify possible effects of the rule on federally recognized Indian Tribes. Since the BLM is responsible for balancing the reserve's oil and gas resources with the protection of surface resources in the NPR-A, the proposed rule may have significance to Alaska Native Tribes and Alaska Native Claims Settlement Corporations.

On August 25, 2023, the BLM sent a letter to each federally registered Alaska Tribe and Alaska Native Corporation informing them of the rulemaking effort. The letter recognized the unique and vital input of Alaska Natives and offered opportunities for participation throughout the rulemaking process. The BLM will continue to engage in outreach efforts to ensure Alaska Natives are advised of the mechanisms by which they can participate, including opportunities for individual government-to-government consultation regarding the proposed rule.

The Paperwork Reduction Act (PRA) (44 U.S.C. 3501-3521) generally provides that an agency may not conduct or sponsor, and notwithstanding any other provision of law, a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. Collections of information include requests and requirements that an individual, partnership, or corporation obtain information, and report it to a Federal agency. See 44 U.S.C. 3502(3); 5 CFR 1320.3(c) and (k).

This proposed rule contains an information collection requirement that is subject to review by OMB under the PRA. This information collection is located in § 2361.30(a)(4). One of the key principles of the proposed rule is the inclusion of stakeholder and public notice and participation in the designation and removal of lands to be included in a Special Area. To help ensure that the BLM receives the information needed to inform its decision to include lands in a Special Area, § 2361.30(a)(4) includes a list of criteria that should be addressed when a member of the public recommends lands for such a designation. This information includes the following:

• The size and location of the recommended lands;

• The significant subsistence, recreational, fish and wildlife, historical, or scenic resource values that are present within or supported by the recommended lands;

• Measures that may be necessary to assure maximum protection of those values; and

• Any other pertinent information.

The BLM has submitted a request to OMB for this information collection requirement under the requirements of 5 CFR 1320.11, Clearance of collections of information in proposed rules. The estimated burden associated with this information-collection is outlined as follows.

OMB Control Number: 1004-XXXX.

Title of Collection: Management and Protection of the National Petroleum Reserve in Alaska—Recommendations for Special Reserve Areas (43 CFR 2361.30).

Form Number: None.

Type of Review: New collection (Request for new OMB Control Number).

Respondents/Affected Public: Persons who wish to recommend lands to be designated as a SA in the NPR-A.

Respondent's Obligation: Voluntary.

Frequency of Collection: On occasion; at least once every 5 years.

Number of Respondents: 100.

Annual Responses: 100.

Estimated Average Response time: 15 hours.

Annual Burden Hours: 1,500.

Annual Burden Cost: None. If you want to comment on the information-collection requirements of this proposed rule, please send your comments and suggestions on this information collection by the date indicated in the DATES and ADDRESSES sections as previously described.

This proposed rule meets the criteria set forth at 43 CFR 46.210(i) for a Departmental categorical exclusion in that this proposed rule is “of an administrative, financial, legal, technical, or procedural nature.” They do not involve any of the extraordinary circumstances listed in 43 CFR 46.215.

Under Executive Order 13211, agencies are required to prepare and submit to OMB a Statement of Energy Effects for significant energy actions. This statement is to include a detailed statement of “any adverse effects on energy supply, distribution, or use (including a shortfall in supply, price increases, and increase use of foreign supplies)” for the action and reasonable alternatives and their effects.

Section 4(b) of Executive Order 13211 defines a “significant energy action” as “any action by an agency (normally published in the Federal Register ) that promulgates or is expected to lead to the promulgation of a final rule or regulation, including notices of inquiry, advance notices of proposed rulemaking, and notices of proposed rulemaking: (1)(i) that is a significant regulatory action under E.O. 12866 or any successor order, and (ii) is likely to have a significant adverse effect on the supply, distribution, or use of energy; or (2) that is designated by OIRA as a significant energy action.”

This proposed rule would not have a significant effect on the Nation's energy supply. It would restate existing statutory standards and establish a procedural framework for ensuring that the BLM meets those standards. It also would codify land use restrictions that already are legally binding in the 2022 IAP ROD. Further, the proposed rule would presume, in proposed § 2361.40(c), that oil and gas leasing or infrastructure on lands allocated as available for such activities “should not be permitted unless specific information available to the Bureau clearly demonstrates that those activities can be conducted with no or minimal adverse effects on significant resource values.” That presumption merely implements the BLM's existing statutory duty to assure maximum protection of the significant resource values in Special Areas. 42 U.S.C. 6504(a). Therefore, the proposed rule would not change the supply, distribution, or use of energy. The BLM welcomes public comments on the impact of this proposed rule on future energy production.

We are required by E.O.s 12866 (section 1(b)(12)), 12988 (section 3(b)(1)(B)), and 13563 (section 1(a)), and by the Presidential Memorandum of June 1, 1988, to write all rules in plain language. This means that each rule must:

(a) Be logically organized;

(b) Use the active voice to address readers directly;

(c) Use common, everyday words and clear language rather than jargon;

(d) Be divided into short sections and sentences; and

(e) Use lists and tables wherever possible.

If you feel that we have not met these requirements, send us comments by one of the methods listed in the ADDRESSES section. To better help the BLM revise the proposed rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that you find unclear, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc.