[Federal Register Volume 89, Number 89 (Tuesday, May 7, 2024)]
[Rules and Regulations]
[Pages 38712-38760]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-08585]



[[Page 38711]]

Vol. 89

Tuesday,

No. 89

May 7, 2024

Part VII





Department of the Interior





-----------------------------------------------------------------------





Bureau of Land Management





-----------------------------------------------------------------------





43 CFR Part 2360





Management and Protection of the National Petroleum Reserve in Alaska; 
Final Rule

  Federal Register / Vol. 89, No. 89 / Tuesday, May 7, 2024 / Rules and 
Regulations  

[[Page 38712]]


-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Bureau of Land Management

43 CFR Part 2360

[BLM_HQ_FRN_MO4500177994]
RIN 1004-AE95


Management and Protection of the National Petroleum Reserve in 
Alaska

AGENCY: Bureau of Land Management, Interior.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This rule governs the management of surface resources and 
Special Areas in the National Petroleum Reserve in Alaska (Reserve or 
NPR-A). The Bureau of Land Management (BLM) manages the NPR-A 
consistent with its duties under the Naval Petroleum Reserves 
Production Act, as amended (NPRPA), Federal Land Policy and Management 
Act, as amended, (FLPMA), and other authorities. The rule revises the 
framework for designating and assuring maximum protection of Special 
Areas' significant resource values and protects and enhances access for 
subsistence activities throughout the NPR-A. It also incorporates 
aspects of the NPR-A Integrated Activity Plan (IAP) approved in April 
2022.

DATES: This rule is effective on June 6, 2024.

FOR FURTHER INFORMATION CONTACT: James Tichenor, Advisor--Office of the 
Director, at 202-573-0536 or [email protected] with a subject line of 
``RIN 1004-AE95.'' For questions relating to regulatory process issues, 
contact Faith Bremner at [email protected].
    Individuals in the United States who are deaf, deafblind, hard of 
hearing, or have a speech disability may dial 711 (TTY, TDD, or 
TeleBraille) to access telecommunications relay services. Individuals 
outside the United States should use the relay services offered within 
their country to make international calls to the point-of-contact in 
the United States. For a summary of the rule, please see the rule 
summary document in docket BLM-2023-0006 on www.regulations.gov.

SUPPLEMENTARY INFORMATION:

I. List of Acronyms and Abbreviations
II. Executive Summary
III. Background
IV. Section-by-Section Discussion
V. Procedural Matters

I. List of Acronyms and Abbreviations

    To ease the reading of this preamble and for reference purposes, 
the following acronyms and abbreviations are used in the preamble:

ANILCA (Alaska National Interest Lands Conservation Act of 1980)
BLM (Bureau of Land Management)
ASRC (Arctic Slope Regional Corporation)
FLPMA (Federal Land Policy and Management Act of 1976)
IAP (Integrated Activity Plan)
ICAS (I[ntilde]upiat Community of the Arctic Slope)
NPR-A or Reserve (National Petroleum Reserve in Alaska)
NPRPA or the Act (Naval Petroleum Reserves Production Act of 1976)
UIC (Ukpea[gdot]vik I[ntilde]upiat Corporation)

II. Executive Summary

    The Naval Petroleum Reserves Production Act of 1976 (NPRPA) gives 
the BLM three overarching mandates for managing the Reserve: (1) 
conduct an oil and gas exploration, leasing, and production program; 
(2) protect environmental, fish and wildlife, historical, and scenic 
surface resources from the impacts of that program through mitigation 
of reasonably foreseeable and significantly adverse effects; and (3) 
assure maximum protection for significant surface values from the 
impacts of the oil and gas program, including subsistence use, within 
Special Areas. Through this rulemaking process, the BLM is developing a 
more cohesive framework for these three mandates by establishing 
requirements and procedures for protecting the surface values of the 
Reserve while conducting the oil and gas program.
    The final rule implements the critical components of the statutory 
framework described above, establishing procedures for the BLM to 
mitigate reasonably foreseeable and significantly adverse effects of 
proposed oil and gas activities on the surface resources of the Reserve 
and to provide maximum protection for surface values within Special 
Areas for proposed oil and gas activities. The BLM will continue to 
follow the part 3130 regulations for managing oil and gas leasing and 
production in the Reserve.
    The rule updates the purpose of the subpart 2361 regulations to 
more accurately and completely reflect the scope of the regulations. 
The purpose of the updated regulations is to provide standards and 
procedures to implement 42 U.S.C. 6506a(b), which requires the 
Secretary to ensure that ``[a]ctivities undertaken pursuant to this Act 
include or provide for such conditions, restrictions, and prohibitions 
as [she] deems necessary or appropriate to mitigate reasonably 
foreseeable and significantly adverse effects on the surface resources 
of the [NPR-A],'' and to provide standards and procedures to implement 
42 U.S.C. 6504(a), under which any exploration in Special Areas ``shall 
be conducted in a manner which will assure the maximum protection of 
such surface values to the extent consistent with the requirements of 
this Act for the exploration of the [NPR-A].''
    The rule establishes new standards and procedures for managing and 
protecting surface resources in the Reserve from the reasonably 
foreseeable and significantly adverse effects of oil and gas 
activities. It requires the BLM, in each decision concerning oil and 
gas activity in the Reserve, to adopt measures to mitigate the 
reasonably foreseeable and significantly adverse effects on surface 
resources, taking particular care with surface resources that support 
subsistence. The rule requires the BLM to manage oil and gas activities 
in accordance with the IAP, enshrining longstanding BLM practice into 
regulations. In the BLM's experience, the IAP provides an invaluable 
means of evaluating management options, engaging the public, and 
guiding decision-making, consistent with the BLM's duties under NPRPA 
and the National Environmental Policy Act (NEPA).
    The rule codifies the five existing Special Areas and their 
significant resource values and management as currently established in 
Secretarial decisions and the 2022 IAP, and it establishes a process 
for designating, amending, and de-designating Special Areas in the 
future. The rule sets forth standards and procedures for managing oil 
and gas activities within Special Areas, confirming that the management 
priority within Special Areas is to assure maximum protection of 
significant resource values consistent with the requirements of the 
NPRPA for exploration of and production from the Reserve. The 
procedures detail requirements for analyzing proposed oil and gas 
leasing, exploration, development, or new infrastructure in Special 
Areas, including providing opportunities for public participation and 
consulting with federally recognized Tribes and Alaska Native Claims 
Settlement Act (ANCSA) corporations that use the affected Special Area 
for subsistence purposes or have historic, cultural, or economic ties 
to the Special Area. The BLM must evaluate potential adverse effects on 
significant resource values and consider measures to avoid, minimize, 
or otherwise mitigate adverse effects to achieve maximum protection of 
significant resource values.
    The rule requires the BLM to manage Special Areas to protect and 
support

[[Page 38713]]

fish and wildlife and their habitats and the associated subsistence use 
of those areas by rural residents, and it requires the BLM to provide 
reasonable access to and within Special Areas for subsistence purposes. 
The rule encourages the BLM to explore co-stewardship opportunities for 
Special Areas, including co-management, collaborative and cooperative 
management, and tribally led stewardship, fulfilling the special trust 
relationship that the Department of the Interior has with Tribes.

III. Background

A. The Need for the Rule

    The BLM is promulgating this final rule because the regulatory 
framework governing the management and protection of environmental, 
fish and wildlife, other surface resources, and Special Areas in the 
Reserve needs updating. Conditions throughout the Arctic have changed 
dramatically since 1977, when the BLM issued the current regulations 
for management of surface resources and Special Areas in the Reserve. 
Rapidly changing conditions, including the intensifying impacts of 
climate change on the Reserve's natural environment and Native 
communities, make it necessary and appropriate for the BLM to develop 
new regulations that account for and respond to these changing 
conditions and that require the BLM to regularly address changing 
conditions.
    In addition, the current regulations do not reflect the full 
management regime for the Reserve. This rule will provide a framework 
for management to protect Special Areas and surface resources in the 
Reserve, which requires a delicate balance between exploration for and 
development of oil and gas resources and protecting subsistence, 
recreational, fish and wildlife, historical, scenic, and other values. 
The applicable legal standards and procedures for management of the 
Reserve are currently scattered throughout several statutes and BLM 
regulations, plans, and guidance documents. For example, the existing 
regulations do not integrate with the BLM's development and use of 
IAPs, which have been used for more than two decades to guide 
management of lands within the Reserve. Although the BLM is not 
required to prepare a resource management plan for the Reserve under 
FLPMA, see 42 U.S.C. 6506a(c), it has chosen to produce and update the 
IAP through a public process and supported by analysis in an 
Environmental Impact Statement (EIS). The IAP allocates land uses in 
the Reserve and includes oil and gas lease stipulations and 
infrastructure restrictions that apply to BLM authorizations in Special 
Areas and other areas throughout the Reserve. The overlay of an updated 
regulatory regime to govern the Reserve, including the requirement to 
develop future IAPs to direct management of the lands and resources in 
the Reserve, will enhance consistency and certainty, particularly with 
respect to protection of surface resources and Special Areas.
    Through the NPRPA, as amended, Congress has given the BLM three 
overarching mandates for managing the Reserve: (1) conduct an oil and 
gas exploration, leasing and production program; (2) protect 
environmental, fish and wildlife, historical, and scenic surface 
resources from the impacts of that program through mitigation of 
reasonably foreseeable adverse effects; and (3) assure maximum 
protection for significant surface values from the impacts of the oil 
and gas program, including subsistence use, within Special Areas. 
Through this rulemaking process, the BLM is developing a more cohesive 
framework for these three mandates by establishing requirements and 
procedures for protecting the surface values of the Reserve while 
conducting the oil and gas program, as discussed in more detail below.
1. Conduct an Oil and Gas Leasing, Exploration, and Production Program
    The NPRPA directs the Secretary of the Interior to ``conduct an 
expeditious program of competitive leasing of oil and gas in the 
Reserve in accordance with this Act.'' In response to this mandate, in 
1981 the BLM developed regulations establishing the procedures for 
administering a competitive leasing program for oil and gas within the 
Reserve. Those regulations are set forth in 43 CFR part 3130, and they 
are not being amended in this rulemaking process. Following 
promulgation of the part 3130 regulations, the BLM held two lease sales 
in the Reserve in 1982 and one each in 1983 and 1984.\1\ After 
receiving no bids during the 1984 lease sale and determining that the 
oil and gas industry had ``little interest in another lease sale,'' the 
BLM discontinued sales in the Reserve for the next 15 years.\2\ The BLM 
restarted lease sales in 1999 and, over the next 2 decades, held a 
total of 15 sales for the Reserve. These sales initially generated 
considerable bonus bid revenue for the Federal Government and the State 
of Alaska; however, bid revenue dropped off significantly as lands in 
the Reserve with the highest potential for development were leased. 
Between 1999 and 2019, the BLM offered nearly 60 million acres of 
leases in the Reserve but received bids on just 12 percent of that 
acreage.\3\
---------------------------------------------------------------------------

    \1\ U.S. Geological Survey, The NPR-A Data Archive 2 (Mar. 
2001), available at https://pubs.usgs.gov/fs/fs024-01/fs024-01.pdf.
    \2\ BLM, Northeast NPR-A Final IAP/EIS (Aug. 1998), available at 
https://web.archive.org/web/20001018022001/http:/aurora.ak.blm.gov/npra/final/html/contents_vol1.html.
    \3\ BLM, NPR-A Sale Statistics 1999 to Present, available at 
https://www.blm.gov/sites/blm.gov/files/documents/files/Oil_Gas_Alaska_NPR-A_LeaseSale_Statistics_1999toPresent.pdf.
---------------------------------------------------------------------------

    The BLM continues to authorize oil and gas leasing and production 
in the Reserve. The most recent oil and gas lease sale in the Reserve 
occurred in 2019. Under the 2022 IAP, approximately 11.8 million acres 
of the Reserve's subsurface estate are available for oil and gas 
leasing. In March 2023, the BLM approved the Willow Master Development 
Plan Project for construction and operation of new infrastructure in 
the Bear Tooth Unit within the Reserve. The approved Willow project 
incorporates substantial resource protection measures, such as reducing 
the number of proposed drill sites, while authorizing the production 
and transportation to market of Federal oil and gas resources within 
the Reserve, consistent with the BLM's statutory directives.
2. Protect Environmental, Fish and Wildlife, Historical, and Scenic 
Values
    Under the NPRPA, the Secretary of the Interior assumes all 
responsibilities for the protection of environmental, fish and 
wildlife, and historical or scenic values. The Act authorizes the 
Secretary to ``promulgate such rules and regulations as [she] deems 
necessary and appropriate for the protection of such values within the 
reserve.'' 42 U.S.C. 6503(b). The BLM additionally has a responsibility 
to ``provide for such conditions, restrictions, and prohibitions as the 
Secretary deems necessary or appropriate to mitigate reasonably 
foreseeable and significantly adverse effects [of oil and gas 
activities] on the surface resources'' throughout the Reserve. 42 
U.S.C. 6506a(b). The current regulations, however, provide little 
detail on the standards and procedures the BLM should use to implement 
these important requirements. New and revised standards and procedures 
are needed to ensure that the BLM is fulfilling its statutory duties 
under the NPRPA, FLPMA, and other authorities to the best of its 
ability.
    The many important surface resources of the Reserve are described 
in detail in

[[Page 38714]]

the preamble to the proposed rule. These include extensive calving 
grounds for the Teshekpuk Caribou Herd and the Western Arctic Caribou 
Herd; threatened and sensitive bird species and the Qupa[lstrok]uk 
Flyway Network Site; marine mammals including polar bears, six whale 
species, spotted seals, and walruses; and abundant fish species 
including Pacific salmon. Overall, the implications of climate change 
for wildlife in the Arctic are substantial, particularly for marine 
mammals that are threatened by continued Arctic warming and the 
resulting deterioration of sea ice. The final rule better supports the 
BLM's ability to manage impacts to surface resources resulting from 
climate change and to respond to changing conditions more rapidly.
3. Assure Maximum Protection for Significant Surface Values, Including 
Subsistence Use, Within Specially Designated Areas
    The NPRPA requires the BLM to ``assure the maximum protection of 
[significant subsistence, recreational, fish and wildlife, or 
historical or scenic] values'' within Special Areas ``to the extent 
consistent with the requirements of [the NPRPA] for the exploration of 
the reserve.'' 42 U.S.C. 6504(a). This requirement applies to the 
impacts of all oil and gas activities. 42 U.S.C. 6504(a); 6506a(n)(2). 
The final rule improves upon the standards and procedures that 
implement this requirement. For example, the current regulations 
identify specific measures the BLM may take to assure maximum 
protection but provide no further guidance on the evaluation and 
selection of such measures.
    The final rule also maintains and enhances access for long-standing 
subsistence activities in the Reserve. The importance of subsistence 
harvesting to the I[ntilde]upiat people and residents of communities in 
and around the Reserve is discussed in depth in the preamble to the 
proposed rule. Impacts on subsistence are occurring on the North Slope 
with greater frequency as development expands across the region. 
Nuiqsut, the community closest to current oil and gas development on 
the North Slope, has experienced the most impacts. Effects on 
subsistence and concerns for ongoing subsistence activities have also 
been documented for Point Lay, Wainwright, Utqiagvik, Atqasuk, and 
Anaktuvuk Pass. Many of these effects are related to oil and gas 
exploration and development--including seismic activity and oil and 
gas-related research, pipelines, and traffic--on caribou and other 
terrestrial species. Provisions of the rule for management of 
subsistence uses within Special Areas and co-stewardship opportunities 
in management of Special Areas and subsistence fulfill the special 
trust relationship that the Department of the Interior has with Tribes.
    In sum, this rule implements the critical components of the 
statutory framework described above, establishing procedures for the 
BLM to mitigate reasonably foreseeable and significantly adverse 
effects of proposed oil and gas activities on the surface resources of 
the Reserve and to provide maximum protection for surface values within 
Special Areas for proposed oil and gas activities, consistent with the 
requirements of the Act related to conducting oil and gas exploration 
and production--all as explicitly required by the NPRPA. The BLM will 
continue to follow the part 3130 regulations for managing oil and gas 
leasing and production in the Reserve. The BLM will also continue to 
maintain an IAP for the Reserve per the final rule. The IAP addresses 
management of the Reserve more broadly than oil and gas activities, 
whereas this rule and the codification of the 2022 IAP in provisions of 
this rule apply only to oil and gas activities.
Public Comments on the Need for the Rule
    During the public comment period, the BLM received approximately 
89,000 comments on regulations.gov from Tribes, Alaska Native 
Corporations, State and local governments, organizations, businesses, 
and individuals. Among them were comments from the Arctic Slope 
Regional Corporation, Doyon Limited, I[ntilde]upiat Community of the 
Arctic Slope, Kuukpik, Native Village of Kotzebue, and Village of 
Wainwright.
    This preamble responds to comments in the relevant part of the 
discussion. For example, the following addresses comments on the need 
for the rule.
    Comment: Commenters stated that the Reserve was set aside for the 
purposes of energy resource development and security in the United 
States and that they do not think that the BLM should promote any 
regulations that would slow, deter, or counter these purposes.
    BLM Response: The rule implements express statutory direction in 
the NPRPA, which requires authorizations for oil and gas activities to 
``include or provide for such conditions, restrictions, and 
prohibitions . . . necessary or appropriate to mitigate reasonably 
foreseeable and significantly adverse effects on the surface 
resources'' throughout the Reserve. The NPRPA also requires the BLM to 
ensure maximum protection of Special Areas' significant resource values 
from oil and gas activities. Please see the Brief Administrative 
History of the Reserve discussion below for more details.
    Comment: The BLM received comments requesting that it remove the 
climate change justification from the Need for the Rule discussion. The 
BLM also received comments that balancing oil and gas activities with 
the protection of surface resources is not enough to address the 
climate change concerns raised in section II(E), Need for the Rule.
    BLM Response: Intensifying impacts from climate change are 
particularly affecting North Slope I[ntilde]upiaq communities and 
creating substantial uncertainty for managing surface resources in the 
Reserve. Changes in native plant communities, wildlife habitat, and 
migration corridors, particularly for caribou, are affecting the 
availability of and access to subsistence resources. Climate change is 
also affecting things like permafrost stability and creating 
engineering challenges for infrastructure. Promulgating this rule now 
provides industry with assurances regarding management of the Reserve 
and allows it to better plan for future exploration and development. 
Updating the regulatory framework will improve the BLM's ability to 
respond to changing conditions in the Arctic while providing 
transparency in conservation and development decisions.
    Comment: The BLM received comments espousing the position that 
there is not a need for additional rules to manage the Reserve because 
the IAP already provides stringent requirements for environmental 
protection and designates specific areas for oil and gas development.
    BLM Response: The 2022 IAP Record of Decision (ROD) provides broad 
management direction for uses and activities allowed within the 
Reserve, including requirements for environmentally and socially 
responsible resource development. The BLM is seeking to codify the 2022 
IAP development process and management framework for oil and gas 
activity into regulations, which currently are over 40 years old and 
outdated. Additionally, this final rule consolidates the provisions 
governing the BLM's management of oil and gas activity while mitigating 
adverse effects on surface resources and managing Special Areas for 
maximum protection of significant resource values in the Reserve.
    Comment: Commenters requested that the BLM cite the need to protect 
wildlife species, including those with declining

[[Page 38715]]

populations like the Arctic peregrine falcon and caribou, in the Need 
for the Rule.
    BLM Response: The concerns raised in this comment are encompassed 
in the proposed and final rule with references to ``protection and 
control of the environmental, fish and wildlife, and historical and 
scenic values of the National Petroleum Reserve in Alaska.''

B. Brief Administrative History of the Reserve

    Designated by President Warren G. Harding in 1923 as Naval 
Petroleum Reserve No. 4, E.O. 3797-A, the Reserve is one of several 
naval petroleum reserves established on public land in the early part 
of the 20th Century to serve as an emergency oil reserve for the U.S. 
Navy. The Reserve extends from the north slope of the Brooks Range to 
the Arctic Coast and encompasses approximately 23 million acres of 
public land.
    The U.S. Navy explored for oil and gas in the Reserve from 1944 to 
1953, resulting in the discovery of two small oil fields (Simpson and 
Umiat), one prospective oil field (Fish Creek), a gas field (South 
Barrow), and four prospective gas fields (Meade, Square Lake, Titaluk, 
and Wolf Creek). The Navy also pioneered numerous methods for oil 
exploration in the Arctic and collected a tremendous amount of 
scientific information concerning northern Alaska. By the 1970s, when 
Congress began debating the role of the naval petroleum reserves in the 
context of the nation's changing energy needs, the Reserve remained 
``largely unexplored and almost completely undeveloped.'' H.R. Rep. No. 
94-156, at 3 (1975). In 1976, Congress passed the NPRPA, which 
transferred administrative jurisdiction over the Reserve from the 
Secretary of the Navy to the Secretary of the Interior and redesignated 
the ``Naval Petroleum Reserve Numbered 4, Alaska'' as the ``National 
Petroleum Reserve in Alaska'' in 1977. Public Law 94-258 (1976) 
(codified at 42 U.S.C. 6502). It also directed the President to prepare 
a study to ``determine the best overall procedures'' for exploring, 
developing, and transporting the reserve's oil and gas resources. Id. 
section 105(b)(1) (codified at 42 U.S.C. 6505(b)).
    In the NPRPA, Congress sought to strike a balance between oil and 
gas exploration and ``the protection of environmental, fish and 
wildlife, and historical or scenic values'' in the Reserve. It did so 
by directing the Secretary to ``promulgate such rules and regulations 
as he [or she] deems necessary and appropriate for the protection of 
such values within the reserve.'' 42 U.S.C. 6503(b). The Conference 
Report explained that the Act would immediately vest responsibility for 
protection of the Reserve's ``natural, fish and wildlife, scenic and 
historical values . . . in the Secretary of the Interior . . . so that 
any activities which are or might be detrimental to such values will be 
carefully controlled.'' H.R. Conf. Rep. No. 94-942 (1976). The report 
stated the Conference Committee's expectation ``that the Secretary will 
take every precaution to avoid unnecessary surface damage and to 
minimize ecological disturbances throughout the reserve.'' Id.
    Congress further directed that ``[a]ny exploration within the 
Utukok River, the Teshekpuk Lake areas, and other areas designated by 
the Secretary of the Interior containing any significant subsistence, 
recreational, fish and wildlife, or historical or scenic value, shall 
be conducted in a manner which will assure the maximum protection of 
such surface values to the extent consistent with the requirements of 
this Act for the exploration of the reserve.'' 42 U.S.C. 6504(a). The 
Conference Report elaborated that the Act would ``immediately authorize 
the Secretary to require that the exploration activities within these 
designated areas be conducted in a manner designed to minimize adverse 
impacts on the values which these areas contain.'' H.R. Conf. Rep. No. 
94-942 (1976).
    To implement the NPRPA, the BLM developed regulations in 1977 to 
govern management and protection of the Reserve. Those regulations, 
which have remained unchanged since their original promulgation, are 
set forth at 43 CFR part 2360, subpart 2361. The regulations provide a 
purpose and objectives for the protection of the environmental, fish 
and wildlife, and historical or scenic values of the Reserve and 
require the BLM to take such action as is necessary to mitigate or 
avoid unnecessary surface damage and to minimize ecological disturbance 
throughout the Reserve to the extent consistent with the requirements 
of the NPRPA for the exploration of the Reserve. Among other 
provisions, the regulations identify examples of maximum protection 
measures that may be implemented to protect significant resource values 
and provide guidance for designating additional Special Areas within 
the Reserve.
    Three years after the BLM developed regulations to govern 
management of the Reserve, the Department of the Interior 
Appropriations Act, Fiscal Year 1981, directed the Secretary to 
``conduct an expeditious program of competitive leasing of oil and 
gas'' in the Reserve, while ``provid[ing] for such conditions, 
restrictions, and prohibitions as the Secretary deems necessary or 
appropriate to mitigate reasonably foreseeable and significantly 
adverse effects on . . . surface resources . . . .'' Public Law 96-514, 
94 Stat. 2957 (1980). The BLM subsequently developed a new set of 
regulations to govern the oil and gas leasing program in the Reserve, 
which were promulgated in 1981 and are set forth at 43 CFR part 3130. 
The part 3130 regulations did not amend the subpart 2361 regulations, 
and, as a result, the BLM currently follows two sets of regulations 
located in different parts of the code governing management of the 
Reserve.
    The Fiscal Year 1981 Appropriations Act also exempted the Reserve 
from the requirement to prepare land use plans under section 202 of 
FLPMA. However, the BLM has found that planning is beneficial to ensure 
compliance with the statutory and regulatory framework governing the 
Reserve and since 1998 has maintained an IAP for the Reserve. Because 
planning in the Reserve is exempted from FLPMA section 202, the IAP is 
not developed as a resource management plan and does not implement 
multiple use and sustained yield. Instead, the IAP focuses possible 
future BLM management practices on those uses that are allowable under 
the NPRPA for the Reserve, and consistent with NEPA regulations at 40 
CFR parts 1500 through 1508, the IAP is developed through an EIS 
process.
    The BLM first developed an IAP for the Northeast portion of the 
Reserve, which was finalized in 1998, and established initial surface 
protections relevant to the Teshekpuk Lake and Colville River Special 
Areas. Upon signing the 1998 ROD, the Secretary approved the addition 
of ``much of the Kikiakrorak and Kogosukruk Rivers and an area 
approximately two miles on either side of these rivers'' to the 
Colville River Special Area, thus increasing its size to 2.44 million 
acres, and the addition of the Pik Dunes to the Teshekpuk Lake Special 
Area. 64 FR 16747 (April 6, 1999). The 2003 Northwest NPR-A IAP 
proposed the new Kasegaluk Lagoon Special Area, which the Secretary 
approved in a ROD in 2004. See 70 FR 9096 (Feb. 24, 2005). The 
Kasegaluk Lagoon Special Area is located in the northwestern corner of 
the Reserve and includes important habitat for marine mammals, among 
other values.
    The BLM developed the first IAP for the full Reserve in 2013. 
Through the 2013 IAP, the Secretary made several

[[Page 38716]]

decisions concerning Special Areas. First, the Secretary designated a 
fifth Special Area: Peard Bay. The 107,000-acre area was designated to 
``protect haul-out areas and nearshore waters for marine mammals and a 
high use staging and migration area for shorebirds and waterbirds.'' 
(BLM, NPR-A IAP ROD 4 (Feb. 2013), available at https://eplanning.blm.gov/public_projects/nepa/5251/42462/45213/NPR-A_FINAL_ROD_2-21-13.pdf.) Second, the Secretary expanded the Teshekpuk 
Lake Special Area by 2 million acres ``to encompass all the roughly 30-
to-50-mile band of land valuable for bird and caribou habitat between 
Native-owned lands near Barrow and Native-owned lands near Nuiqsut . . 
. .'' (Id. at 19.) Third, the Secretary expanded the Utukok River 
Uplands Special Area to 7.1 million acres ``to more fully encompass 
prime calving and insect-relief habitat within the NPR-A . . . .'' (Id. 
at 4.) Finally, the Secretary broadened the purpose of the Colville 
River Special Area to include the ``protect[ion of] all raptors, rather 
than the original intent of protection for arctic peregrine falcons.'' 
(Id.)
    The current IAP, adopted in April 2022, was informed by a Final EIS 
issued by the agency in 2020. The EIS evaluated a range of alternatives 
for managing oil and gas activities and resources in the Reserve. (BLM, 
NPR-A Final IAP/EIS (June 2020), available at https://eplanning.blm.gov/eplanning-ui/project/117408/570.) 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, 
I[ntilde]upiat Community of the Arctic Slope, National Park Service, 
North Slope Borough, State of Alaska, and U.S. Fish and Wildlife 
Service. During the IAP/EIS process, the BLM consulted with:
     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. Section 3.6 of the 2022 IAP details the BLM's process for 
evaluating impacts to subsistence use and findings based on that 
evaluation.
    The 2022 IAP makes approximately 11.8 million acres (52 percent) of 
the Reserve's subsurface estate available for oil and gas leasing. The 
remaining approximately 11 million acres (48 percent) of the Reserve, 
including the majority of lands within Special Areas and much of the 
coastal area of the Reserve along the Beaufort Sea, are closed to oil 
and gas leasing to protect and conserve important surface resources and 
uses in these areas. The majority of the area closed to oil and gas 
leasing was determined to be medium or low potential for discovery or 
development of oil and gas resources in the Reasonably Foreseeable 
Development Scenario in the 2020 NPR-A Final IAP/EIS. (BLM, NPR-A Final 
IAP/EIS at B-1 (June 2020), available athttps://eplanning.blm.gov/public_projects/117408/200284263/20020421/250026625/Volume%202_Appendices%20B-Y.pdf.) The IAP makes lands available for 
application for oil and gas infrastructure, including pipelines and 
other infrastructure necessary for owners of any offshore leases in the 
State or Federal waters of the Chukchi and Beaufort Seas to bring oil 
and gas across the Reserve to the Trans-Alaska Pipeline System, while 
also prohibiting new infrastructure on lands containing habitat of 
special importance to nesting, breeding, and molting waterfowl as well 
as those with critical calving and insect relief areas for the 
Teshekpuk Lake and Western Arctic Caribou Herds. (BLM, NPR-A IAP ROD 1-
2 (Apr. 2022))

C. Statutory Authority

    The NPRPA is the primary source of management authority for the 
Reserve. Under the NPRPA, the Secretary must ``assume all 
responsibilities'' for ``any activities related to the protection of 
environmental, fish and wildlife, and historical or scenic values'' and 
``promulgate such rules and regulations as he [or she] deems necessary 
and appropriate for the protection of such values within the reserve.'' 
42 U.S.C. 6503(b).
    Congress has also directed the Secretary to ``conduct an 
expeditious program of competitive leasing of oil and gas'' in the NPR-
A. Id. However, the NPRPA also requires the Secretary to ensure all oil 
and gas activities within the Reserve ``include or provide for such 
conditions, restrictions, and prohibitions as the Secretary deems 
necessary or appropriate to mitigate reasonably foreseeable and 
significantly adverse effects on the surface resources'' throughout the 
NPR-A. Id. at 6506a(b).
    The NPRPA also authorizes the Secretary to designate Special Areas 
to protect ``significant subsistence, recreational, fish and wildlife, 
or historical or scenic value[s]'' in the NPR-A and provides that any 
``exploration'' in Special Areas ``shall be conducted in a manner which 
will assure the maximum protection of such surface values to the extent 
consistent with the requirements of this Act for the exploration of the 
reserve.'' Id. at 6504(a).
    Other authorities that guide management of the NPR-A include FLPMA 
and the Alaska National Interest Lands Conservation Act of 1980 
(ANILCA). Although Congress in 1980 exempted the NPR-A from FLPMA's 
land use planning and wilderness study requirements, 42 U.S.C. 
6506a(c), it did not exempt the NPR-A from FLPMA's other provisions. 
Hence, the BLM must ``take any action necessary to prevent unnecessary 
or undue degradation'' of all BLM-administered public lands, including 
within the NPR-A. 43 U.S.C. 1732(b).
    Similarly, certain portions of ANILCA apply within the Reserve. Of 
particular importance for this rule, section 810 of ANILCA, which 
governs subsistence

[[Page 38717]]

uses within the Reserve, requires the BLM to ``evaluate the effect'' of 
proposed activities ``on subsistence uses and needs . . . .'' 16 U.S.C. 
3120(a). If such activities will ``significantly restrict subsistence 
uses,'' then the BLM must hold hearings in affected communities, limit 
activities to ``the minimal amount of public lands necessary,'' and 
take ``reasonable steps . . . to minimize adverse impacts upon 
subsistence uses and resources . . . .'' Id. Fulfilling section 810's 
requirements is of crucial importance for the NPR-A, as more than 40 
communities utilize its resources for subsistence purposes.
Public Comments on Statutory Authority
    Comments: Some commenters asserted that the proposed rule conflicts 
with the plain language and congressional intent of the NPRPA, as 
amended by Public Law 96-514 (codified at 42 U.S.C. 6506a). Other 
commenters raised concerns that the proposed rule ignores that the 
NPRPA exempted the Reserve from certain provisions of FLPMA. Others 
commented that the proposed rule violates the plain language and 
congressional intent of FLPMA and the application in the rule is 
therefore inappropriate. Commenters further stated that Congress 
designated the Reserve to be developed in balance with conservation and 
that the proposed rule aims to align management of the Reserve with 
FLPMA in a manner that ignores the unique considerations identified in 
the NPRPA and would inappropriately restrict oil and gas development 
and decrease domestic oil supply.
    BLM Response: The BLM disagrees with commenters' assertions that 
the rule conflicts with the NPRPA or FLPMA. This rule appropriately 
implements the statutory framework in the NPRPA, as amended, to provide 
for oil and gas exploration and development in the Reserve while 
ensuring the protection of environmental, fish and wildlife, and 
historical or scenic values across the Reserve; and specifically within 
Special Areas to ensure that any oil and gas activity is undertaken in 
a manner that provides for the maximum protection of surface values to 
the extent consistent with the requirements of the NPRPA.
    Similarly, this rule appropriately implements the applicable 
provisions of FLPMA to the management of the Reserve. The Department of 
the Interior and Related Agencies' Fiscal Year (FY) 1981 Appropriations 
Act (Pub. L. 96-514) exempted management of the Reserve from only two 
sections of FLPMA: section 202 (43 U.S.C. 1712), which requires the BLM 
to prepare resource management plans to guide management of public 
lands; and section 603 (43 U.S.C. 1782), which required the BLM to 
complete wilderness reviews and describes the procedures for managing 
any lands recommended to Congress for wilderness designation pending 
congressional action. The BLM is otherwise obligated to manage public 
lands within the Reserve pursuant to FLPMA, where consistent with the 
NPRPA, as amended. Under FLPMA, the BLM has broad authority to regulate 
the use, occupancy, and development of public lands within the Reserve 
and must take action ``to prevent unnecessary or undue degradation of 
the lands'' (43 U.S.C. 1732(b)).
    Comments: Other comments suggested that the BLM add a specific 
reference to ANILCA in Sec.  2361.3.
    BLM Response: The BLM agrees with this suggestion and has added a 
discussion of ANILCA to that section of the final rule.

D. Public Engagement

    The BLM published the proposed rule in the Federal Register on 
September 8, 2023 (88 FR 62025), for a 60-day comment period ending on 
November 7, 2023. In response to public requests for an extension, the 
BLM extended the comment period for 10 days (88 FR 72985) and then 
again for 20 days (88 FR 80237). The resulting 90-day comment period 
closed on December 7, 2023.
    During the comment period, the BLM hosted a variety of public 
outreach activities. The BLM held two virtual public meetings on 
October 6 and November 6, 2023. Presentation slides and video 
recordings of the virtual meetings were made available on the BLM 
website for the rulemaking (https://www.blm.gov/about/laws-and-regulations/NPR-A-Rule). The BLM held three in-person meetings in 
Anchorage (October 10, 2023), Nuiqsut (November 1, 2023), and Utqiagvik 
(November 2, 2023) to provide an overview of the proposed rule and 
answer questions from the public. The BLM also held one hybrid meeting 
in Wainwright on December 4, 2023. A court reporter was present at the 
Nuiqsut and Utqiagvik meetings to transcribe all comments and 
questions. The hybrid meeting in Wainwright was recorded via the Zoom 
platform, and those comments were collected by the BLM on behalf of the 
commenters and submitted as comments to the rulemaking docket on 
regulations.gov (https://www.regulations.gov/docket/BLM-2023-0006). 
Additionally, the BLM posted transcripts from the meetings as 
supporting and related materials to the rulemaking docket on 
regulations.gov.
    The BLM also posted a fact sheet, a frequently-asked-questions 
document, a side-by-side comparison of the proposed rule with the 
existing regulation, and other background information on the BLM 
website to further public understanding of the proposed rule (https://www.blm.gov/about/laws-and-regulations/NPR-A-Rule).
    In addition, during the comment period, the BLM conducted external 
outreach and participated in meetings to discuss the content of the 
proposed rule, including congressional briefings; meetings with the 
State of Alaska; and meetings with industry and other stakeholder 
interest groups.
Public Comments on Public Engagement
    Comments on scope of outreach:
    Commenters noted their perception that the BLM did not seek the 
input of those likely to be affected by the rulemaking prior to issuing 
the Notice of Intent in the Federal Register, as they stated is 
required by Executive Order (E.O.) 13563. Specifically, commenters 
stated their position that the BLM did not conduct outreach or 
engagement with the eight active lessees in the Reserve, State and 
national trade associations (American Petroleum Institute and Alaska 
Oil and Gas Association), and numerous Tribal and local government 
entities including the North Slope Borough, to ``seek their views on 
the scope or merits of the contemplated proposed rulemaking.''
    Commenters also provided input on outreach methods. Commenters 
suggested that the BLM utilize KBRW as local residents often listen to 
that station for important announcements including meetings. Commenters 
also suggested that the BLM reach out to local search and rescue 
offices in villages because those volunteers directly interact with 
subsistence users. Comments emphasized that many Tribes and allotment 
owners do not have cell phones, utilize social media, or own computers; 
many do not have internet access, and if they do, it is limited and 
unreliable.
    BLM Response: The BLM's intention to initiate this rulemaking was 
announced in March 2023. On August 25, 2023, the BLM mailed a formal 
offer for consultation to 45 Tribes and 30 Alaska Native Corporations 
to engage in consultation on the proposed rule. The BLM did not receive 
a response to these invitations from any of the Tribes or Alaska Native 
Corporations. Since the announcement of the proposed rule on

[[Page 38718]]

September 8, 2023, the BLM has continued to offer consultation via 
phone, email, and in-person invitations to Tribes and Alaska Native 
Corporations that it determined would be most likely to have 
substantial direct effects from the rule, including the Native Village 
of Atqasuk; Atqasuk Corporation; Village of Wainwright; Olgoonik 
Corporation; Native Village of Nuiqsut; Kuupik Corporation; Native 
Village of Barrow; Ukpea[gdot]vik I[ntilde]upiat Corporation (UIC); 
Arctic Slope Regional Corporation (ASRC); and I[ntilde]upiat Community 
of the Arctic Slope (ICAS). On September 6th, 2023, agency staff called 
State and local governments to ensure they were aware of the upcoming 
publication of the proposed rule and to offer opportunities to discuss 
the rule language.
    For some proposed rules, the BLM chose to engage with stakeholders 
about the broader topic earlier in the rulemaking process. In this 
instance, however, we believed it would be more productive to engage in 
more in-depth discussion regarding the content of the proposed changes 
to the rule with the benefit of the actual proposal for review and 
discussion.
    The BLM worked with communities within the Reserve to host in-
person public comment meetings, including posting meeting flyers, 
amplifying meetings on social media, and announcing the meetings on 
local CB radios. We always appreciate suggestions on outreach methods 
and how we might better reach audiences. We note the commenters' 
specific outreach suggestions for future efforts in the North Slope 
region.
    Comments on timing:
    Commenters expressed their concerns that the timeline for review of 
the rule directly conflicted with hunting and fall subsistence whaling 
activities. Commenters also noted their perception that the BLM is 
ignoring local circumstances such as the North Slope Borough's mayoral 
elections, which they stated prevented meaningful input on the proposed 
rule from North Slope communities. Comments expressed the opinion that 
the public comment timeline was inadequate, noting that 60 days was 
insufficient, and that the additional 30 days of extensions still did 
not allow North Slope organizations to diligently prepare comments on 
the rule and to weigh-in to the fullest extent possible. Commenters 
requested additional time to allow the public to have meaningful 
opportunity to review the necessary information and provide substantive 
comments.
    Commenters expressed concern that the comment period for the rule 
overlapped with the comment period for the Coastal Plain Oil and Gas 
Leasing Program Supplemental EIS comment period.
    Commenters emphasized the importance of working with the NPR-A 
Working Group, as the group consists of important local leaders and 
provides a forum for discussion of the rule including recommendations. 
Commenters suggested that certain group members (specifically 
Utqiagvik) did not receive notification of the meetings and that they 
should be involved in the discussion.
    Commenters noted their opinion that the schedule for in-person and 
virtual public meetings for the rule did not provide sufficient notice 
to allow the public to meaningfully participate, nor the opportunity to 
adjust schedules so as to attend in person. Commenters also noted their 
opinion that the meetings were hastily scheduled, with only a few days' 
notice, and that meetings were canceled with little or no notice and 
often not rescheduled. Commenters requested additional public meetings 
and requested that those additional meetings be adequately noticed to 
facilitate public participation and local engagement.
    Commenters noted that there is no reason the proposed rule should 
have substantially less public participation than other, less 
significant actions that have dictated management of the Reserve as 
both have been subject to the Administrative Procedure Act (APA). 
Commenters noted that the APA ensures that BLM rulemaking is a 
transparent and regular process.
    BLM Response: BLM agrees that the timing for the public comment 
period was difficult and not ideal. Whaling is an incredibly important 
subsistence activity for North Slope communities, and fall is one of 
two key times to harvest. While the comment period for the proposed 
rule was during the fall whaling season, the BLM took steps to ensure 
that North Slope communities were given the opportunity to provide 
comments on the proposed rule and engage in the process in a meaningful 
way. First, the BLM conducted extensive outreach to Reserve 
communities, holding in-person public meetings in Nuiqsut, Utqiagvik, 
and Wainwright. Further, we recognize that submitting public comments 
online or through the mail might pose a challenge to these communities. 
To facilitate greater participation, we offered opportunities for 
community members at these sessions to submit their comments for the 
record through comment cards or through a court reporter. In addition, 
the agency met with the NPR-A Working Group three times during the 
public comment period. The NPR-A Working Group is comprised of 
representatives from North Slope local governments, Alaska Native 
Corporations, and tribal entities. It is intended to provide a forum 
for North Slope communities to provide input to management of the 
Reserve (https://www.blm.gov/programs/energy-and-minerals/oil-and-gas/about/alaska/NPR-A/npr-a_working_group). For each meeting in Reserve 
communities, the BLM coordinated meeting dates, times, and locations 
with local entities, although some changes still resulted due to 
unforeseen events or weather. Regarding the comment received specially 
addressing the November 2 meeting in Utqiagvik, meeting details were 
finalized in mid-October 2023 and advertised to the community via 
social media and flyers, in addition to notification to the NPR-A 
Working Group and posting on the project website.
    The BLM received requests to extend the public comment period for 
the proposed rule; specifically, we were asked to extend the comment 
period for an additional 90 days, which would have made for a 150-day 
(5-month) comment period. A 5-month comment period far exceeds the 
typical duration for rulemaking comment periods. While we were unable 
to grant the requested extension, the BLM did extend the comment period 
for 30 days, resulting in a 90-day comment period for the proposed 
rule. While the comment period for the proposed rule overlapped with 
the comment period on the Draft Supplemental EIS for the Coastal Plain, 
the Coastal Plain comment period was 60-days and ended one month before 
the close of the comment period on the proposed rule.\4\ Throughout the 
comment period and since, the BLM has continued to engage with Reserve 
region Tribes and Alaska Native Corporations on the rule.
---------------------------------------------------------------------------

    \4\ The Coastal Plain of the Arctic National Wildlife Refuge is 
approximately 50 miles east of the NPR-A. The 2017 Tax Act (Pub. L. 
115-97) directed the BLM to conduct two sales in the Coastal Plain 
offering at least 400,000 acres of high-potential hydrocarbon lands 
for bid by 2024. More information on the supplemental environmental 
impact statement for the Coastal Plain Oil and Gas Leasing Program 
can be found on that project's website at https://eplanning.blm.gov/eplanning-ui/project/2015144/570.
---------------------------------------------------------------------------

    Comments on meeting format:
    Commenters provided input on the format of both the in-person and 
virtual meetings. Commenters noted that public comment and testimony 
was not part of the meetings, which, in their opinion, confirmed the 
BLM's ``limited intention to actually gather knowledge or data, or

[[Page 38719]]

to collaborate.'' Commenters also noted their perception that the BLM 
limited questions from the public and only answered select written 
questions submitted in English and then did not read them verbatim but 
instead paraphrased them. Some commenters stated concern over the 
format of the virtual meetings and noted that they did not think the 
meetings were long enough in duration and that they prefer a townhall 
format over the webinar format that was utilized. Commenters further 
noted that they would have liked to interact with each other and/or the 
BLM. Commenters expressed their opinion that the BLM's comment process 
does not provide special considerations that account for Indigenous 
groups' understanding of Western institutional public processes, which 
makes the process less transparent to Indigenous peoples.
    Some commenters noted that, in their opinion, the BLM should 
``reset the process to allow more public engagement and to receive the 
benefit of comment from informed stakeholders who can contribute to a 
better and more durable final rule.''
    BLM Response: All members of the public were invited to submit 
comments to the BLM electronically at Regulations.gov or by mail, 
personal delivery, or messenger delivery. The BLM uploaded comments 
received by mail, personal delivery, or messenger delivery to 
Regulations.gov. As the official repository of comments, 
Regulations.gov is available to the public, allows the agency to better 
track and make more effective use of comments, and allows the public to 
review submissions from other commenters. For public meetings, the 
agency hosted virtual and in-person informational sessions along with 
in-person public comment meetings for communities located within the 
Reserve.
    The informational sessions were designed to help the interested 
public understand the proposed rule and provide a forum to answer 
questions. The BLM communicated with attendees that comments would not 
be collected at the informational sessions due to the logistical 
feasibility of accurately and comprehensively recording comments in 
those venues. Participants were given both the Regulations.gov website 
and the mailing address for comment submission, and BLM representatives 
were available to answer questions about how to submit comments. The 
agency did not receive any questions during information sessions that 
were not written in English.
    The BLM worked with communities within the Reserve to host in-
person public comment meetings. We have heard on numerous occasions 
through other project outreach efforts that submitting public comments 
online or through the mail often poses a challenge to these 
communities. To facilitate greater participation, we offered 
opportunities for community members at these meetings to submit their 
comments to the record through comment cards or orally through a 
transcriber.
    Comments on public engagement for the 2022 IAP:
    Commenters expressed their opinion that the BLM incorrectly relied 
on the public comment process that informed the 2020 IAP ROD and noted 
that the BLM should have conducted NEPA review for the proposed rule. 
Commenters noted their opinion that the BLM streamlined the public 
involvement process and the actual impacts of the rule by claiming that 
it is administrative in nature, thus dismissing the need for additional 
stakeholder input. Commenters also noted their opinion that the rule 
vastly alters major Federal planning processes and land management 
standards that were developed using robust public input and that if the 
BLM wants to move forward with a rule that alters existing Federal land 
management, then the agency must acknowledge the public involvement 
process requirements at a minimum.
    The BLM received comments stating that ``The State [of Alaska] 
strongly opposes and finds it disingenuous for BLM to consider and 
describe stakeholder engagement during the NPR-A IAP relevant 
stakeholder engagement and as justification for the need of the 
proposed rule.''
    BLM Response: The BLM did not rely on the IAP public comment 
process as the public comment for this rule. Rather, the BLM provided 
for public comment on the proposed rule as required by the APA. With 
respect to NEPA compliance for this rulemaking, it is relevant that the 
current IAP was supported by an extensive NEPA analysis--including 
preparation of an EIS. The final rule does not alter any current on-
the-ground management, and it meets the criteria set forth at 43 CFR 
46.210(i) for a Departmental categorical exclusion in that this rule is 
``of an administrative, financial, legal, technical, or procedural 
nature.'' Additionally, the final rule does not involve any of the 
extraordinary circumstances listed in 43 CFR 46.215 that would preclude 
the application of the categorical exclusion. As such, the BLM has 
complied with NEPA by relying on this categorical exclusion.

E. Tribal Consultation

    On August 25, 2023, the BLM invited via mail 45 Tribes and 30 
Alaska Native Corporations to engage in consultation regarding the 
proposed NPR-A rule. Since the announcement of the proposed rule, we 
have continued to offer consultation to Native Village of Atqasuk, 
Atqasuk Corporation, Village of Wainwright, Olgoonik Corporation, 
Native Village of Nuiqsut, Kuupik Corporation, Native Village of 
Barrow, UIC, ICAS, and ASRC. We met with the Mayor of Atqasuk on 
October 31, Native Village of Nuiqsut on November 1, ICAS on November 3 
and February 6, Village of Wainwright on November 21, Olgoonik 
Corporation on December 19, ASRC on December 21, and Kuukpik on 
February 1. In addition, staff met and discussed the proposed rule with 
the NPR-A Working Group (consisting of representatives from North Slope 
local governments, Native corporations, and Tribal entities, https://www.blm.gov/programs/energy-and-minerals/oil-and-gas/about/alaska/NPR-A/npr-a_working_group) on September 26, October 17, and December 1. We 
also held in-person public meetings in Nuiqsut, Utqiagvik and 
Wainwright where verbal comment was recorded, along with three 
informational sessions--one in Anchorage and two virtual. The BLM will 
continue to engage in consultation with Tribes and Alaska Native 
Corporations after the final rule is published.
Public Comments on Tribal Consultation
    Commenters expressed their opinion that the Alaska Native 
Corporations and the federally Recognized Tribes of Alaska were not 
properly consulted during the rulemaking process. Commenters expressed 
their opinion that the BLM did not comply with E.O. 13175, Secretary's 
Order 3043, President Biden's ``Memorandum on Tribal Consultation and 
Strengthening Nation-to-Nation Relationships'' and ``Memorandum on 
Uniform Standards for Tribal Consultation,'' and the DOI Policy Manual 
512 DM 4 and 5. Comments stated that the BLM letter to Alaska Tribes 
and Alaska Native Corporations was sent 7 business days before the 
proposed rule's publication which ``fails to meet the numerous 
consultation requirements detailed at length'' in the Executive order 
and Memoranda listed above.
    Commenters expressed that because the rule was published during 
fall whaling season, ``What little

[[Page 38720]]

consultation or public meeting process did occur was hastily convened 
with little to no opportunity for local communities to receive timely 
notice.''
    Commenters requested that the BLM engage in meaningful 
communication and consultation with local villages and Tribes to ensure 
the new regulations meet the needs and concerns of the communities who 
rely on the Reserve. Comments requested that the BLM consultation be 
more inclusive than just the federally recognized Tribes and ANSCA 
corporations. One commenter stated: ``Also, the rule seems to treat 
ANCSA corporations the same as Tribes which needs further 
clarification.''
    Another commenter stated: ``BLM's efforts to avoid working with 
local stakeholders of the NPR-A is almost impressive in its breadth. 
Not only has the State been excluded, but also leaders from impacted 
NPR-A Alaska Native communities, the North Slope Borough, the BLM-
created NPR-A Working Group, the congressionally established ASRC, the 
tribal representatives from the ICAS, the Voice of the Arctic Inupiat 
(VOICE), and the general public of Alaska and residents of the NPR-A. 
These process deficiencies are especially stark after so many prior 
NPR-A-focused planning and permitting efforts featured comprehensive 
consultation and process. Conversely, this may be the North Slope's 
most disconnected and disingenuous public process in the modern era.''
    BLM Response: Please see our response to similar comments in the 
discussion of Public Engagement above. We understand that some 
commenters found the public comment period dissatisfying. We received 
very helpful input and our outreach complied fully with applicable law 
and policy.
    In addition, 512 DM 6 (https://doi.gov/sites/doi.gov/files/elips/documents/512-dm-6.pdf) outlines requirements for consultation between 
appropriate ANCSA Corporation officials and Department officials. While 
not considered government-to-government consultation, it is the policy 
of the Department to recognize and fulfill its legal obligations to 
consult with ANCSA Corporations on the same basis as Alaska Native 
Tribes. To the extent that concerns expressed by a federally recognized 
Tribe and an ANCSA Corporation substantively differ, officials shall 
give due consideration to the rights of sovereignty and self-government 
of the Tribe, and to the unique legal status and rights of the ANCSA 
Corporation.
    In its many years of engaging with North Slope communities, the BLM 
has gained a deep understanding of the connection those communities 
have with the NPR-A. For example, for the I[ntilde]upiat of the North 
Slope, ``cultural resources are not merely places or things but also 
provide a link between North Slope history, I[ntilde]upiat culture and 
values, subsistence activities, and the biological and physical 
environment. These resources have spiritual and cultural importance to 
residents of the North Slope, and their protection is of utmost 
importance to the I[ntilde]upiat.'' \5\ Contemporary I[ntilde]upiaq 
values, including respect for nature, hunting traditions, and family 
and kinship, are ``inextricably linked with all facets of 
I[ntilde]upiaq life,'' but ``none more so than subsistence hunting and 
harvesting traditions. Maintaining and passing down cultural values, 
including knowledge of subsistence hunting and harvesting methods, 
traditions, and places, is of utmost importance to North Slope 
residents.'' \6\ ``The I[ntilde]upiaq people's relationship to the land 
is characterized by . . . subsistence traditions . . . ; thus, to the 
I[ntilde]upiat, protecting traditional lands and waters and the wild 
resources that inhabit them is essential to maintaining cultural 
traditions, knowledge, and identity. Today, the I[ntilde]upiat are 
continuously adapting and responding to various forces of change that 
challenge their ability to protect these lands and waters and that 
contribute to social stress within communities.'' \7\ Among those 
forces of change is oil and gas development. ``Given the historical and 
unique nature of the economic, social, and cultural value Alaska 
Natives place on subsistence resources in the planning area and the 
importance of these resources to the nutritional health and food 
security of Alaska Natives,'' the adverse impacts of oil and gas 
development are predominately borne by Alaska Natives residing in 
communities that utilize subsistence resources from the NPR-A.\8\
---------------------------------------------------------------------------

    \5\ BLM, NPR-A Final IAP/EIS (June 2020), section 3.4.2., 
available at https://eplanning.blm.gov/public_projects/117408/200284263/20020342/250026546/Volume%201_ExecSummary_Ch1-3_References_Glossary.pdf.
    \6\ Id. section 3.4.4.
    \7\ Id.
    \8\ Id. section 3.4.5.
---------------------------------------------------------------------------

F. General Public Comments

General Comments About the Rule
    Comments: Commenters expressed support that the proposed rule would 
provide enhanced protection for natural resources for future 
generations, including wildlife and biodiversity, fragile Arctic 
environments, and Alaska's unique ecosystem. Commenters believed that 
the proposed rule would help the BLM address changing conditions, 
including climate change, improve upon standards and procedures to 
protect surface values and significant resource values, promote 
transparency and inclusivity, and would overall result in a more 
comprehensive plan to manage the Reserve.
    BLM Response: We appreciate the recognition of these goals of the 
proposed rule, and we agree the proposed rule would advance these 
outcomes. The BLM made changes in the final rule to strengthen resource 
protection measures and clarify standards and procedures for 
implementing the rule with transparency and community engagement.
    Comments: The BLM received comments expressing concerns that the 
proposed rule would restrict oil and gas development and could harm 
local economies that are reliant on oil and gas revenue. Commenters 
expressed concern that the proposed rule may be contrary to 
congressional direction set forth in the NPRPA and may not fulfill the 
purposes of the Reserve. We appreciate commenters raising these 
concerns through the rulemaking process, and the final rule 
incorporates changes to clarify the BLM's statutory mandate under the 
NPRPA for managing the Reserve.
    BLM Response: As detailed in discussion and comment responses 
throughout this preamble to the final rule, the BLM believes managing 
oil and gas leasing and production under this regulatory framework will 
best enable the BLM to meet its requirements to ensure protection of 
environmental, fish and wildlife, historical, and scenic values in the 
Reserve and will benefit local communities. This rule balances all 
aspects of the BLM's statutory mandate for managing the NPR-A.
    Comments: The BLM also received comments generally addressing 
recreation in the Reserve and requesting more discussion on how 
recreation activities and experiences would be affected by the rule.
    BLM Response: We did not address recreation directly under the 
framework of the rule because the rule only addresses management of oil 
and gas activities in the Reserve. As the BLM implements the rule, 
there may be indirect effects on recreation activities in the Reserve, 
such as fewer impacts on recreation experiences associated with oil and 
gas production due to decisions that minimize and mitigate those 
impacts on surface resources in the Reserve.

[[Page 38721]]

Comments About Climate Change
    Comments: The BLM received comments discussing the impacts of 
climate change already being realized in the Reserve, such as impacts 
to wildlife habitat and permafrost and the potential loss of associated 
subsistence food sources. Commenters urged the development of a 
comprehensive analysis of the climate impacts of Western Arctic oil and 
gas production. Commenters recommended that an updated climate analysis 
should incorporate adaptive management practices, which would allow the 
BLM to manage the Reserve for improved climate resiliency.
    Commenters requested that the BLM ensure decisions are consistent 
with Council on Environmental Quality (CEQ) guidance, Environmental 
Protection Agency (EPA) guidance, and Secretarial Order 3399 regarding 
addressing climate impacts. In particular, commenters recommended that 
the BLM include a requirement in the rule to analyze the social cost of 
carbon, consider the reasonably foreseeable effects of climate change 
on infrastructure, and model greenhouse gas emissions. Commenters 
proposed various frameworks and approaches for incorporating climate 
analysis and emissions management into the rule.
    BLM Response: This rule is focused on impacts to surface values of 
the Reserve and implementing the BLM's statutory obligation to protect 
those values when authorizing oil and gas leasing and production. Thus, 
the BLM is not analyzing or specifically considering the climate 
impacts of oil and gas development as part of the rulemaking process. 
We recognize that the changing conditions of surface values in the 
Reserve are being driven in a significant way by climate change and 
that changes due to climate change are occurring at an accelerated rate 
in the Arctic compared to other parts of the planet. Because of the 
dynamic nature of those impacts on surface resources, however, the BLM 
must consider and address climate impacts during the implementation of 
the rule. For example, the BLM will analyze the condition of surface 
resources, including changing conditions caused by climate impacts, 
when determining when to update the IAP. We further note that the BLM 
must analyze and consider greenhouse gas emissions, and climate impacts 
in general, when conducting NEPA analysis for oil and gas leasing and 
production activities.
    Comments: Some commenters argued that the NPRPA creates an 
obligation for the BLM to limit greenhouse gas emissions from 
activities in the Reserve and expressed concern that the proposed rule 
fails to ``mitigate reasonably foreseeable and significantly adverse 
effects on the surface resources'' by not addressing emissions from 
recently approved oil and gas leases.
    BLM Response: The BLM agrees that the provisions of the NPRPA that 
require the BLM to mitigate reasonably foreseeable and significantly 
adverse effects on surface resources and to assure maximum protection 
for significant resource values in Special Areas require the BLM to 
analyze and consider greenhouse gas emissions when it is considering 
new oil and gas activity in the Reserve. As described above, such 
analysis and consideration will occur as part of the NEPA process both 
for any changes to the IAP and for project-level approvals.
Comments About Wildlife
    Comments: Commenters provided detailed information about fish and 
wildlife habitats in the Reserve and the impacts of oil and gas 
production on specific species and their habitats. In particular, 
comments documented information about caribou in the Utukok Uplands and 
their behavioral responses to oil and gas development, as well as polar 
bear populations within the Reserve and the impacts of oil and gas 
activities on the species. Commenters recommended the rule include 
additional protections to build resilient habitats for plants and 
wildlife, such as establishing connectivity zones between Special 
Areas. Comments expressed concern that existing mitigation measures do 
not ensure maximum protection for subsistence of the Teshekpuk Caribou 
Herd.
    BLM Response: The BLM appreciates the wealth of information 
provided by commenters about wildlife species and habitats in the 
Reserve and impacts occurring from oil and gas activities. While 
analyzing specific habitat areas or mitigation measures is outside the 
scope of this rulemaking process, the BLM believes the final rule 
strengthens provisions that will support the BLM's management of 
important wildlife habitat and other surface resources in the Reserve. 
For example, the final rule requires that all Special Area designation 
and amendment processes will rely on the best available scientific 
information, including Indigenous Knowledge, as well as the best 
available information concerning subsistence uses and resources within 
the Reserve. The final rule also details procedures for the BLM to 
avoid the adverse effects of proposed oil and gas activities on the 
significant resource values of Special Areas.
Comments About Oil and Gas Production
    Comments: The BLM received comments stating that the proposed rule 
disregards congressional intent that the BLM manage the Reserve for oil 
and gas production, including the NPRPA's requirement that the BLM 
conduct an expeditious program of competitive leasing of oil and gas in 
the Reserve. Commenters cited the U.S. Court of Appeals for the Ninth 
Circuit, which commenters assert has held that the NPRPA did not give 
the Secretary the discretion not to lease, but rather that the 
Secretary is given the discretion to provide rules and regulations 
under which leasing would be conducted.
    BLM Response: We believe the final rule appropriately reflects the 
BLM's mandates in the NPRPA to conduct an oil and gas leasing and 
production program in the Reserve while protecting environmental, fish 
and wildlife, and historical and scenic values within the Reserve. In 
the same section that establishes an oil and gas leasing program in the 
Reserve, the NPRPA explicitly directs the BLM to ``provide for such 
conditions, restrictions, and prohibitions as . . . necessary or 
appropriate to mitigate reasonably foreseeable and significantly 
adverse effects on the surface resources'' of the Reserve when 
conducting the oil and gas program (42 U.S.C. 6506a(b)). Further the 
BLM updated Sec.  2361.40 in the final rule to specifically reference 
the BLM's mandate under the NPRPA to assure maximum protection of 
significant resource values in Special Areas ``consistent with the 
requirements of the NPRPA for exploration and production of the 
Reserve.'' This is consistent with Northern. Alaska Environmental. 
Center v. Kempthorne, 457 F.3d 969 (9th Cir. 2006), which states only 
that the government could not forbid all oil and gas leasing throughout 
the Reserve, not that it lacks discretion not to lease in some areas. 
Indeed, in that case, the court upheld an IAP that deferred leasing in 
a significant portion of the NPR-A.
    Comments: The BLM received comments discussing the maximum 
protection requirements in the proposed rule and the context of the 
statutory language. Commenters stated that the maximum protection 
requirement in the NPRPA was not intended to create a presumption 
against oil and gas activities, but rather to ensure that exploration 
operations would be conducted to minimize adverse impacts on the 
environment. Commenters

[[Page 38722]]

argued that the maximum protection provisions in the proposed rule are 
contrary to the plain language of the NPRPA, congressional intent and 
the 1981 Appropriations Act.
    BLM Response: The NPRPA requires the BLM to conduct oil and gas 
activities in Special Areas ``in a manner which will assure the maximum 
protection of [any significant subsistence, recreational, fish and 
wildlife, or historical or scenic] values to the extent consistent with 
the requirements of this Act.'' The Conference Report on the NPRPA 
elaborated that the Act would ``immediately authorize the Secretary to 
require that the exploration activities within these designated areas 
be conducted in a manner designed to minimize adverse impacts on the 
values which these areas contain.'' H.R. Conf. Rep. No. 94-942 (1976). 
The provisions of the rule implementing this requirement enable the 
agency to fulfill its statutory duty to protect Special Areas. We note 
that maximum protection measures are not an objective standard but 
rather are established in the context of resource needs and other uses, 
including valid existing rights and ongoing oil and gas production in 
the Reserve. As established in the existing regulation and carried 
forward to the final rule, maximum protection measures can include 
limiting types of vehicles and aircraft, requiring use of alternative 
routes, and rescheduling activities. They can also include restrictions 
on oil and gas infrastructure or closures to certain oil and gas 
activities, consistent with prescriptions for the Special Areas and 
existing leases. Maximum protection measures are and will continue to 
be developed through public processes with opportunities for public 
input and consultation with Tribes, ANCSA corporations, and local 
governments.
    Comments: Commenters requested a more detailed explanation of how 
the rule would apply to and affect existing leases, operations, and 
activities. Commenters expressed concerns that the rule would adversely 
affect future proposals for development activities and impermissibly 
conflict with existing leases, by which the BLM has granted a right to 
build infrastructure and produce oil. Commenters acknowledged existing 
leases can be subject to reasonable regulations but argued that the 
proposed rule is not a reasonable restriction because it would create 
uncertainty about permit approval. Commenters suggested that leases may 
expire while the BLM delays action to document uncertainty or denies a 
permit on the grounds that the proposed infrastructure is not 
practicable or essential. Other comments discussed that the BLM has 
authority to take actions it determines are necessary to protect the 
environment in the Reserve, including through regulatory actions, and 
that this is acknowledged in the standard language in BLM leases.
    BLM Response: The rule includes specific protections for valid 
existing rights. For example, the final rule allows for new permanent 
infrastructure on lands within Special Areas that are allocated as 
unavailable to new infrastructure if necessary to comport with the 
terms of a valid existing lease. The final rule similarly makes clear 
that the presumption against new oil and gas activities in Special 
Areas would be overcome by the need to comport with the terms of a 
valid existing lease.
    At the same time, we note that, while the terms of an existing 
lease and approved development project or permit will not be affected 
by the rule, a valid lease does not entitle the leaseholder the 
unfettered right to drill wherever it chooses or categorically preclude 
the BLM from considering alternative development scenarios within 
leased areas, nor does it give the leaseholder the right to produce all 
economically recoverable oil and gas on the lease. Further, the BLM can 
condition permits for drilling on implementation of environmentally 
protective measures and could even deny a specific application 
altogether if it were to propose development in a particularly 
sensitive area, and where mitigation measures would not be effective. 
Future development of an existing lease, by its terms, could be subject 
to additional terms and conditions. For example, the standard lease for 
activities in the Reserve states, ``An oil and gas lease does not in 
itself authorize any on-the-ground activity'' and notes that more 
restrictive stipulations may be added. Similarly, a standard lease 
stipulation entitled ``Conservation of Surface Values for NPR-A 
Planning Area Land'' provides: ``Operational procedures designed to 
protect resource values will be developed during Surface Use Plan 
preparation, and additional protective measures may be required beyond 
the general and special stipulations identified in the above-referenced 
documents.''
    Comments: The BLM received comments expressing concern that oil and 
gas activities in the Reserve cause negative effects on the environment 
and wildlife, such as land degradation, air pollution, and threats to 
ecosystems, all of which affect biodiversity and human health. 
Commenters recommended the BLM develop a comprehensive cumulative 
effects analysis and whole Arctic conservation strategy, referencing a 
2003 National Research Council report on cumulative effects of oil and 
gas activities on Alaska's North Slope. Commenters requested that the 
BLM implement consistent monitoring practices to ensure it has 
comprehensive data to use in decision-making, which would enable more 
effective management of oil and gas activities in the Reserve.
    BLM Response: The BLM believes the final rule supports decision-
making that will provide meaningful protections for environmental and 
wildlife values in the Reserve from the impacts of oil and gas 
exploration and production, consistent with the agency's statutory 
obligation to mitigate reasonably foreseeable and significantly adverse 
effects on the surface resources of the Reserve. In doing so, the rule 
will support the BLM's ability to manage for ecosystem services, and 
particularly their contributions to subsistence use, as the agency 
makes management decisions under the framework of the rule. (See, e.g., 
Guidance For Assessing Changes In Environmental And Ecosystem Services 
In Benefit-Cost Analysis, Office of Management and Budget (Feb. 2024), 
available at https://www.whitehouse.gov/wp-content/uploads/2024/02/ESGuidance.pdf.) The final rule establishes that in managing both the 
significant resource values of Special Areas and the surface resources 
of the Reserve broadly, the BLM will adopt conditions, restrictions, or 
prohibitions that may involve conditioning, delaying action on, or 
denying some or all aspects of future and proposed oil and gas 
activities. For example, the BLM might condition or deny development if 
an operator proposes infrastructure along the Colville River if it is 
feasible to locate the infrastructure outside of the area closed to 
protect wildlife and subsistence activities, even if the operator would 
prefer the location closer to the river. It is not within the scope of 
this rulemaking process to develop a cumulative effects analysis or 
establish monitoring protocols, which are better suited to an IAP 
amendment process.

G. Summary of Changes in the Final Rule

    The following paragraphs summarize changes the BLM made from the 
proposed rule to the final rule. More detailed explanations for the 
changes are found in the responses to comments and the description of 
the final rule in section IV of this preamble to the final rule.

[[Page 38723]]

Section 2361.3 Authority
    The BLM added references to FLPMA and ANILCA in the Authorities 
section in the final rule, including the caveat that the land use 
planning and wilderness study requirements of FLPMA do not apply to 
lands within the Reserve, pursuant to 42 U.S.C. 6506a(c).
Section 2361.5 Definitions
    The BLM revised the definition of ``infrastructure'' in the final 
rule to clarify that the term means, ``a permanent or semi-permanent 
structure or improvement that is built to support commercial oil and 
gas activities on BLM-administered lands within the Reserve, such as 
pipelines, gravel drilling pads, man camps, and other structures or 
improvements.'' The revised definition further clarifies that 
``infrastructure'' does not include structures or improvements that 
will primarily be used by and provide a benefit to communities located 
within or in close proximity to the Reserve.
    The BLM clarified in the final rule that the term ``significant 
resource values'' refers to surface values that the BLM identifies as 
significant, in order to ensure consistency with the language in the 
NPRPA. Similarly, the BLM made minor clarifications in the definition 
of the term ``Special Areas'' to ensure consistency with the language 
in the NPRPA. The final rule defines ``Special Areas'' as: ``areas 
within the Reserve identified by the Secretary or by statute as having 
significant resource values and that are managed to assure maximum 
protection of such surface values, to the extent consistent with the 
requirements of the Act for the exploration and production of the 
Reserve.''
    The final rule incorporates the definition for the term ``co-
stewardship'' that is used in BLM Permanent Instruction Memorandum No. 
2022-011 (Co-Stewardship with Federally Recognized Indian and Alaska 
Native Tribes Pursuant to Secretary's Order 3403).
Section 2361.10 Protection of Surface Resources
    The BLM added ``oil and gas'' before the word ``activities'' 
throughout the section to clarify that the requirements of this rule 
only apply to oil and gas activities. The final rule replaces 
``Bureau'' with ``authorized officer'' to provide clarity about the BLM 
official responsible for implementing requirements in the rule.
    The BLM removed proposed paragraph (b)(3) from the final rule 
because it is duplicative of environmental analysis requirements under 
NEPA. The paragraph had provided that, in assessing effects of a 
decision concerning proposed activity in the Reserve, the Bureau would 
identify and evaluate any reasonably foreseeable effects of its 
decision, including effects later in time or farther removed in 
distance, and effects that result from the incremental effects of the 
proposed activities when added to the effects of other past, present, 
and reasonably foreseeable actions.
Section 2361.20 Existing Special Areas
    The BLM did not amend the final rule in response to specific 
comments regarding the significant resource values, boundaries, or 
management of existing Special Areas. The rule merely codifies the 
existing Special Areas and their significant resource values and 
management as currently established in Secretarial decisions and the 
2022 IAP. The final rule establishes a process in Sec.  2361.30 for 
designating, amending, and de-designating Special Areas that will be 
followed to make changes to Special Areas.
Section 2361.30 Special Areas Designation and Amendment Process
    The BLM reorganized Sec.  2361.30 in the final rule, with a new 
paragraph (a) that outlines requirements applicable to all processes 
that will designate, de-designate, or otherwise change boundaries or 
management of Special Areas. These provisions require that the BLM: (1) 
rely on the best available scientific information, including Indigenous 
Knowledge; (2) provide the public and interested stakeholders with 
meaningful opportunities to participate in the evaluation process; (3) 
consult with any federally recognized Tribes and ANCSA corporations 
that use the affected Special Area for subsistence purposes or have 
historic, cultural or economic ties to the Special Area; and (4) base 
decisions solely on the presence or absence of significant resource 
values. This new paragraph will provide more consistency to all 
decision-making processes for Special Areas.
    The final rule changes the Special Area evaluation period from 5 to 
10 years, while specifying that the BLM may conduct the evaluation 
sooner if the authorized officer determines that changing conditions 
warrant earlier review. For example, the BLM may decide to conduct an 
evaluation in less than 10 years upon receiving nominations or 
recommendations for Special Area changes. The BLM believes this change 
addresses concerns about agency and community capacity while ensuring 
regular reviews occur to maintain an inventory of resource conditions 
and make management changes as appropriate. The final rule specifies 
that as part of the evaluation, the BLM will determine whether to 
require additional measures or strengthen existing measures to assure 
maximum protection of significant resource values within existing 
Special Areas.
    The BLM also revised the final rule to provide more clarity and 
certainty around the interim measures provision. The final rule 
clarifies that interim measures may be implemented at any time after 
BLM receives a recommendation to designate or modify a Special Area. 
The final rule also clarifies that any interim measures must be 
consistent with the governing management prescriptions in the IAP, and 
the BLM is required to provide public notice that interim measures are 
in place and reassess such measures to determine if they are still 
needed if they remain in place for more than 5 years.
Section 2361.40 Management of Oil and Gas Activities in Special Areas
    Section 2361.40 is revised in the final rule to state the 
management priority within Special Areas is to assure maximum 
protection of significant resource values, ``consistent with the 
requirements of the NPRPA for exploration [and production] of the 
Reserve.'' The BLM believes this clarification addresses public 
comments requesting additional consistency with the language of the 
NPRPA and reflects the BLM's statutory mandate for managing the 
Reserve.
    The final rule clarifies that the BLM will identify and adopt 
maximum protection measures for each significant resource value that is 
present in a Special Area when Special Areas are designated. The BLM 
will also update maximum protection measures as appropriate thereafter, 
including in the IAP, lease terms, and permits to conduct oil and gas 
activities. The final rule also includes maximum protection measures 
that are identified in the existing regulation but had been eliminated 
in the proposed rule, as well as additional examples of categories of 
measures.
    On lands within Special Areas that are allocated as closed to 
leasing or unavailable to new infrastructure, the final rule allows for 
the BLM to approve new permanent infrastructure related to existing oil 
and gas leases only if such infrastructure is necessary to comport with 
the terms of a valid existing lease. This provision removes language in 
the proposed rule that further specified that the infrastructure must 
be essential for exploration or development activities

[[Page 38724]]

and no practicable alternatives exist which will have less adverse 
impact on significant resource values of the Special Area.
    The final rule provides clarity around how the presumption against 
new leasing and new infrastructure on lands within Special Areas that 
are allocated as open for those activities will be addressed through 
the environmental review process. The rule provides that as part of the 
environmental analysis, the BLM will document a justification for 
overcoming the presumption, such as if the proposed infrastructure is 
necessary to comport with the terms of a valid existing lease, or if it 
will primarily be used by and provide a benefit to communities located 
within or in close proximity to the Reserve, and the proposal has been 
conditioned to avoid, minimize, or otherwise mitigate adverse effects. 
The public will have an opportunity to review and comment on any 
justification for overcoming the presumption.
    The BLM reorganized Sec.  2361.40 to clarify the requirements for 
preparing an environmental analysis of proposed leasing, exploration, 
development, or new infrastructure in Special Areas, and reaching a 
final decision. These procedures are set forth in a revised Sec.  
2361.40(g). The BLM must provide meaningful opportunities for public 
participation, including responding to comments, and consult with 
federally recognized Tribes and ANCSA corporations that use the 
affected Special Area for subsistence purposes or have historic, 
cultural, or economic ties to the Special Area. The BLM must evaluate 
potential adverse effects on significant resource values and consider 
measures to avoid, minimize, or otherwise mitigate adverse effects to 
achieve maximum protection of significant resource values. The BLM must 
also document and consider uncertainty about potential adverse effects 
on significant resource values, and account for any uncertainty when 
taking actions taken to avoid, minimize, or mitigate adverse effects.
    If the BLM determines through the environmental analysis that the 
proposal cannot avoid adverse effects on significant resource values in 
a Special Area, then the BLM must prepare a Statement of Adverse 
Effect. The requirement to prepare a Statement of Adverse Effect was 
included in the proposed rule, but the final rule provides more clarity 
around how it fits within the environmental review process. The 
Statement of Adverse Effect will be incorporated into the environmental 
analysis and provided to the public for review and comment.
    Lastly, the BLM updated the maps for the final rule so that they 
show the boundaries of the existing Special Areas on the maps from the 
2022 IAP showing the current allocations for oil and gas leasing and 
infrastructure. The maps depict the exact data from the IAP ROD, and do 
not change any designations or allocations from the 2022 IAP.
Section 2361.50 Management of Subsistence Uses Within Special Areas
    The final rule removes the phrase ``to the extent consistent with 
assuring maximum protection of all significant resource values that are 
found in such areas'' from this section, so paragraph (b) now simply 
reads: ``The Bureau will provide reasonable access to and within 
Special Areas for subsistence purposes.'' This phrase was causing 
confusion and was unnecessary because Sec.  2361.30 requires the BLM to 
adopt measures to assure maximum protection of significant resource 
values when designating Special Areas.
    The BLM also revised the language in this section to refer to 
``reasonable access'' instead of ``appropriate access'' for consistency 
with the language in section 811 of ANILCA.
Section 2361.60 Co-Stewardship Opportunities in Management of Special 
Areas and Subsistence
    In the final rule, the title of this section is revised from ``Co-
stewardship opportunities in Special Areas.'' The first sentence is 
also revised to add ``and subsistence resources throughout the 
Reserve.'' Those revisions reflect that the BLM will seek co-
stewardship opportunities not just in managing Special Areas, but also 
in managing subsistence resources more broadly.
    The first sentence is also revised to add ``federally recognized'' 
to clarify that the BLM engages in co-stewardship only with federally 
recognized Tribes. Separately, the Bureau may partner with Alaska 
Native Claims Settlement Act corporations, local governments, or 
organizations as provided by law, which will not be co-stewardship 
arrangements but a different type of partnership. The text of the rule 
has been revised to make this distinction clearer.

IV. Section-by-Section Discussion and Response To Comments on 
Individual Provisions

Section 2361.1--Purpose

Existing and Proposed Regulations
    Existing Sec.  2361.0-1 is redesignated to Sec.  2361.1 in the 
final rule. The existing provision states that the purpose of the 
regulations is ``to provide procedures for the protection and control 
of environmental, fish and wildlife, and historical or scenic values'' 
in the Reserve. The BLM proposed to revise Sec.  2361.1 to establish a 
two-part purpose for the rule to more accurately and completely reflect 
the scope of the regulations. The first purpose was to provide 
standards and procedures to implement 42 U.S.C. 6506a(b), which 
requires the Secretary to ensure that ``[a]ctivities undertaken 
pursuant to this Act include or provide for such conditions, 
restrictions, and prohibitions as [she] deems necessary or appropriate 
to mitigate reasonably foreseeable and significantly adverse effects on 
the surface resources of the [Reserve].''
    The second purpose outlined in the proposed rule was to provide 
standards and procedures to implement 42 U.S.C. 6504(a), under which 
any exploration in Special Areas ``shall be conducted in a manner which 
will assure the maximum protection of such surface values to the extent 
consistent with the requirements of this Act for the exploration of the 
reserve.'' The standards and procedures to implement these two 
provisions will also fulfill the BLM's mandate to take action necessary 
to prevent unnecessary or undue degradation under FLPMA, 43 U.S.C. 
1732(b).
Public Comments on Sec.  2361.1
    Commenters expressed support for the proposed revisions to Sec.  
2361.1 to provide needed clarity, purpose, and priority for the 
protection and management of Special Areas. We agree that the changes 
will help.
    Commenters recommended that the BLM include oil and gas leasing and 
production as a purpose of the regulations. We decline this suggestion. 
Regulations for oil and gas leasing and production within the Reserve 
are covered in 43 CFR part 3130.
    Commenters requested that the BLM revert to the purpose in the 
original version of Sec.  2361.1. We decline this request. The existing 
regulations do not reflect the full scope of the BLM's statutory 
obligations or the scope of this rule. Proposed Sec.  2361.1 accurately 
and completely reflected that scope.
    Commenters requested that the Purpose section include language that 
is in the current version of 42 U.S.C. 2361.0-2, which recites that the 
objective of the regulations is to provide environmental protection 
``to the extent consistent with the requirements of the Act.'' We 
believe that is unnecessary. The proposed rule included language in the 
Purpose section which stated that the regulation was ``pursuant to and 
consistent with the provisions of the Naval Petroleum Reserves 
Production

[[Page 38725]]

Act of 1976 (90 Stat. 303; 42 U.S.C. 6501 et seq.).''
    The BLM received comments requesting that the rule explicitly state 
that the purpose of the regulations is to provide standards and 
procedures to cease any new oil and gas activities in the Reserve and 
execute a phase down of all existing oil and gas extraction. The 
comments suggest that including this language would allow the BLM to 
meet its statutory requirement to ensure mitigation of reasonably 
foreseeable and significantly adverse effects and prevent unnecessary 
or undue degradation. This comment's recommendation would not be 
consistent with the NPRPA, which directs the Secretary to implement an 
oil and gas leasing program in the Reserve.
Description of the Final Rule
    The BLM did not change this section of the proposed rule in the 
final rule. The final rule states the purpose of the regulations is to 
provide procedures for protection and control of the environmental, 
fish and wildlife, and historical and scenic values of the National 
Petroleum Reserve in Alaska, including mitigating the significantly 
adverse effects of oil and gas activities on the surface resources of 
the Reserve and assuring maximum protection of significant resource 
values in Special Areas pursuant to and consistent with the provisions 
of the Naval Petroleum Reserves Production Act of 1976 (90 Stat. 303; 
42 U.S.C. 6501 et seq.), Alaska National Interest Lands Conservation 
Act (94 Stat. 2371, 16 U.S.C. 3101 et seq.), and other applicable 
authorities.

Section 2361.0-2--Objectives

Existing and Proposed Regulations
    The existing Sec.  2361.0-2 states the objectives of the 
regulations. The BLM proposed to remove this section because the 
proposed revision of Sec.  2361.1 would make it redundant.
Public Comments on Existing Sec.  2361.0-2
    The BLM received comments requesting that it not amend the 
Objectives section because the original Objectives section clarified 
that environmental protections are designed to control exploration and 
production activities. Commenters expressed the opinion that the 
existing provision appropriately states the objective of the NPRPA and 
implements regulations based on Congress's intent to provide for the 
protection of the environmental and other surface values consistent 
with the exploration and development of oil and gas resources within 
the Reserve. Commenters suggested the proposed changes to the 
Objectives section disregard the BLM's primary purpose under the NPRPA 
of expeditious leasing, exploration, and development of the Reserve. 
Commenters recommended the Objectives include the clause: ``. . . 
maximum protection of such surface values to the extent consistent with 
the requirements of this Act for the exploration of the reserve'' in 
accordance with the BLM's obligations under the NPRPA and associated 
law.
    BLM Response: We did not make changes in response to these 
comments. The existing Sec.  2361.0-2 was removed because the proposed 
rule's revision of Sec.  2361.1 made it redundant. The proposed rule 
included language in the Purpose section stating that the regulation is 
``pursuant to and consistent with the provisions of the Naval Petroleum 
Reserves Production Act of 1976 (90 Stat. 303; 42 U.S.C. 6501 et 
seq.).''
Description of the Final Rule
    The BLM did not change this section of the proposed rule in the 
final rule. The final rule removes Sec.  2361.0-2 from the regulations.

Section 2361.3--Authority

Existing and Proposed Regulations
    Existing Sec.  2361.0-3 is redesignated to Sec.  2361.3 in the 
final rule. The existing rule identifies the NPRPA as the only 
statutory authority for the regulations. In the proposed rule, the BLM 
included the Department of the Interior Appropriations Act, Fiscal Year 
1981 (Pub. L. 96-514), which amended the NPRPA and instructed the 
Secretary to mitigate reasonably foreseeable and significantly adverse 
effects on the surface resources in the Reserve (codified at 43 U.S.C. 
6506a).
Public Comments on Sec.  2361.3
    Commenters recommended the rule include ANILCA as an authority for 
the rule, in part because section 810 of ANILCA governs subsistence use 
on public lands in Alaska. Commenters also pointed out that FLPMA 
generally applies to public land management in Alaska, rather than 
section 202. We agree that referring to ANILCA is helpful. Other than 
the land use planning provisions of section 202 and the wilderness 
inventory requirements in section 603, FLPMA applies to lands within 
the Reserve.
Description of the Final Rule
    The BLM changed the final rule in response to comments, adding 
references to FLPMA and ANILCA in the Authorities section in the final 
rule, including the caveat that the land use planning and wilderness 
study requirements of FLPMA do not apply to lands within the Reserve, 
pursuant to 42 U.S.C. 6506a(c).

Section 2361.4--Responsibility

Existing and Proposed Regulations
    Existing Sec.  2361.0-4 is redesignated to Sec.  2361.4 in the 
final rule.
    The BLM proposed to modify the statement in the existing 
regulations that, under the NPRPA, the BLM is responsible for managing 
surface resources in the Reserve to add that BLM is also responsible 
for managing the subsurface mineral resources in the Reserve. The 
proposed rule also added that the BLM is responsible for assuring 
maximum protection of Special Areas' significant resource values. The 
proposed rule deleted paragraph (b) because the U.S. Geological Survey 
is no longer responsible for managing exploration in the Reserve. 
Secretarial Order 3071, 47 FR 4751 (Feb. 2, 1982); Secretarial Order 
3087, 48 FR 8982-83 (Mar. 2, 1983).
Public Comments on Sec.  2361.4
    Comment: The BLM received a comment stating that the BLM is 
responsible for managing subsurface resources, and therefore the 
commenter requested that the rule include a plan for periodic mineral 
surveys of the Reserve so the BLM can more effectively govern 
subsurface resources beyond just oil, gas, and coal.
    BLM Response: We decline this suggestion because it goes beyond the 
scope of this rule. In addition, even if mineral surveys were within 
the scope of BLM's typical activities, they would be inappropriate 
here. The NPRPA withdrew the Reserve from all forms of entry and 
disposition under the public land laws, including the mining and 
mineral leasing laws, with the only exception being certain gravel 
sales. The 1981 Appropriations Act amended the NPRPA to allow for the 
oil and gas leasing program (42 U.S.C. 6502).
    Comment: Commenters recommended removing the term ``environmental 
degradation'' from the section but did not provide an explanation for 
the change.
    BLM Response: The BLM declines to make this change. The current 
regulation at Sec.  2361.0-4 uses the term ``environmental 
degradation,'' and the use of this term in Sec.  2361.0-4 is consistent 
with the BLM's duties and obligations under applicable laws, including 
the NPRPA, FLPMA, and ANILCA.

[[Page 38726]]

    Comment: Commenters recommended that because the proposed changes 
to the section discuss the BLM's responsibility for assuring maximum 
protection of Special Areas' significant resource values, then the 
section should also discuss the need to balance resource protection 
with the responsibility to develop the Reserve's oil and natural gas 
resources.
    BLM Response: While the BLM must ``conduct an expeditious program 
of competitive leasing of oil and gas'' in the Reserve, oil and gas 
leasing within the Reserve is addressed in 43 CFR part 3130. Hence, it 
is not necessary to include that in the Responsibility section for this 
rule.
Description of the Final Rule
    The BLM did not change this section of the proposed rule in the 
final rule. Section 2361.4 in the final rule states that the BLM is 
responsible for the surface and subsurface management of the Reserve, 
including protecting surface resources from environmental degradation 
and assuring maximum protection of significant resource values in 
Special Areas.

Section 2361.5--Definitions

Existing and Proposed Regulations
    Existing Sec.  2361.0-5 is redesignated to Sec.  2361.5 in the 
final rule.
    The BLM proposed to update the definition for ``exploration'' to 
ensure consistency with NPRPA's definition of ``petroleum'' (42 U.S.C. 
6501); update the definition of ``Special Areas'' for consistency with 
other proposed changes to the regulations; and incorporate a definition 
for ``Indigenous Knowledge,'' consistent with the guidance set forth in 
the Memorandum issued by CEQ and the Office of Science and Technology 
Policy (OSTP) on November 30, 2022. The BLM also proposed to add new 
definitions for ``Integrated Activity Plan,'' ``infrastructure,'' and 
``significant resource value.''
Public Comments on Sec.  2361.5
    Comment: Commenters provided a general statement of support for 
Sec.  2361.6 and the new definition for ``Indigenous Knowledge,'' 
consistent with the guidance set forth in the Memorandum issued by CEQ 
and OSTP on November 30, 2022.
    BLM Response: We agree that the new definition will provide useful 
direction for the BLM in taking into account Indigenous Knowledge and 
add consistency in implementing CEQ and OSTP guidance.
    Comment: Comments included a recommendation that the proposed 
processes for collecting and utilizing Indigenous Knowledge properly 
includes Alaska Native Corporations. Commenters stated that Alaska 
Native Corporations have a unique congressional mandate to manage 
Alaska Native lands for the benefit of their Alaska Native owners and 
Alaska Native Corporations regularly utilize Indigenous Knowledge to 
manage Indigenous-owned lands in Alaska. Furthermore, Alaska Native 
Corporations employ Indigenous Knowledge holders who understand the 
unique aspects of managing these traditional lands.
    BLM Response: We decline this suggestion because the proposed 
rule's definition of Indigenous Knowledge already encompasses all 
Alaska Native peoples, including Alaska Native Corporations and other 
Alaska Native entities, by specifying that it ``is developed by 
Indigenous Peoples including, but not limited to, Tribal Nations, 
American Indians, and Alaska Natives.'' Consistent with Departmental 
policy found in 512 DM 6, the BLM recognizes and respects the distinct, 
unique, and individual cultural traditions and values of Alaska Native 
peoples and the statutory relationship between Alaska Native 
Corporations and the Federal Government.
    Comment: Commenters recommended that the BLM consider the following 
definition of Indigenous Knowledge: ``Indigenous Knowledge means a body 
of observations, oral and written knowledge, practices, and beliefs 
developed by Tribes and Indigenous Peoples through interaction and 
experience with the environment. It is applied to phenomena across 
biological, physical, social, spiritual, and cultural systems. 
Indigenous Knowledge can be developed over millennia, continues to 
develop, and includes understanding based on evidence acquired through 
direct contact and long-term contact with the environment and long-term 
experiences, as well as extensive observations, lessons, and skills 
passed from generation to generation and acquired through 
multigenerational observations, lessons, and skills over time. 
Indigenous Knowledge is developed by Indigenous Peoples including, but 
not limited to, Tribal Nations, American Indians, and Alaska Natives''.
    BLM Response: We decline this edit as it does not meaningfully 
change or improve the definition and would not be consistent with the 
definition being used by other Federal agencies.
    Comment: Commenters requested the BLM clarify the definition of 
``Indigenous Knowledge'' or how Indigenous Knowledge would be used in 
the Reserve. Commenters stated that the proposed definition could be 
interpreted to mean that any person or entity simply deemed 
``Indigenous'' would have a claim to have Indigenous Knowledge and that 
this proposed definition diminishes the knowledge of those who actually 
live in the area as opposed to those who do not.
    BLM Response: We decline this suggestion. The proposed rule's 
definition of Indigenous Knowledge encompasses all Alaska Native 
peoples, including members of Alaska Native Corporations and other 
Alaska Native entities, by specifying that it ``is developed by 
Indigenous Peoples including, but not limited to, Tribal Nations, 
American Indians, and Alaska Natives.'' In the final rule, Indigenous 
Knowledge, as well as best available information on subsistence 
resources and uses, will be considered in designating, de-designating 
and modifying boundaries or management of Special Areas. As a result, 
the Indigenous Knowledge will need to be specific to the areas and uses 
at issue, which will necessarily be focused on those informed about 
resources and uses on the ground, i.e., members of local communities 
and Tribes.
    Comment: Commenters requested the BLM clarify in the proposed rule 
how traditional knowledge will be used in conjunction with recognized 
scientific practices and standards of the North Slope Borough and the 
State of Alaska, particularly as those standards relate to the 
development in the Arctic and the Reserve.
    BLM Response: We decline this suggestion. As the proposed rule 
states in Sec.  2361.30, Indigenous Knowledge is included as a part of 
best available scientific information.
    Comment: Commenters expressed general support for the reasoning 
stated for the proposed definition of ``infrastructure.''
    BLM Response: The BLM appreciates public support for the proposed 
approach.
    Comment: Commenters recommended amending the definition of 
``infrastructure'' by omitting clauses: ``and that is not ephemeral, 
such as snow or ice roads'' and ``but it does not include exploratory 
wells that are drilled in a single season.'' The commenter thought 
these revisions would strengthen the definition.
    BLM Response: We decline this suggestion. This definition is based 
on the framework set out in the IAP to identify which types of new 
infrastructure are subject to prohibitions within certain areas of the 
Reserve.

[[Page 38727]]

Section 1.2 of the 2022 IAP excludes single season snow and ice 
infrastructure as well as exploratory wells that are drilled in a 
single season. Based on comments received, the BLM clarified the 
definition to provide additional detail about what qualifies as 
infrastructure and what types of structures or improvements are not 
considered infrastructure for the purposes of this rule.
    Comment: Some commenters stated their opinion that the definition 
of ``infrastructure'' may violate valid existing lease rights where a 
new oil and gas location for commercial development would be 
infrastructure and is restricted in multiple provisions, but 
exploratory wells drilled in a single season would not be 
infrastructure nor under the same restrictions.
    BLM Response: The BLM disagrees with commenters' assertion. The 
rule is incorporating the allocations for infrastructure from the IAP 
and using a similar definition that focuses on permanent or semi-
permanent structures. Further, the final rule makes clear that new 
infrastructure will not be restricted if the location of the proposed 
structures or improvements is necessary to comport with the terms of a 
valid existing lease.
    Comment: Commenters stated that the proposed definition of 
``infrastructure'' creates an arbitrary division between types of 
infrastructure. Commenters noted that infrastructure built to support 
science and public safety could have the same characteristics and 
features as infrastructure built to support commercial oil and gas 
activities and could support oil and gas activities, or vice versa. In 
addition, commenters stated that infrastructure associated with oil and 
gas development often includes new roads and local facilities that 
benefit the community. On the North Slope, access to subsistence areas 
and connectivity provided by roads is considered a benefit by many 
residents. For example, roads associated with industrial development 
near the Native villages of Utqiagvik and Nuiqsut have improved the 
ability of residents to pursue subsistence opportunities.
    BLM Response: The definition of infrastructure in the final rule 
applies to permanent or semi-permanent structures or improvements that 
support oil and gas activities, and does not apply to other, non-oil 
and gas structures or improvements, because that term is used 
specifically to implement the Special Area provision of the NPRPA, 42 
U.S.C. 6504(a) (as amended), which by its terms applies only to oil and 
gas exploration and production activities. Although the general 
mitigation provision of this rule (Sec.  2361.10) applies only to oil 
and gas activities, it is not the only tool available to the BLM for 
requiring mitigation in the Reserve. The BLM has explicit and ample 
authority under the NPRPA to apply mitigation requirements within the 
reserve, as well as under NEPA to evaluate potential mitigation 
measures as part of the analysis for proposed actions. Mitigation for 
other types of activities, such as siting and construction of 
infrastructure for scientific research or public safety, may be 
addressed through other means, such as implementing requirements of the 
IAP for non-oil and gas infrastructure or as determined through the 
analysis in project-specific decisions. With regard to infrastructure 
that benefits communities within the Reserve, Sec.  2361.10 of the 
final rule provides that, when identifying conditions, restrictions, 
and prohibitions necessary or appropriate to mitigate the reasonably 
foreseeable and significantly adverse effects of proposed oil and gas 
activities in the portions of the Reserve outside Special Areas, the 
Bureau will fully consider community access and other infrastructure 
needs. Additionally, in response to comments, the BLM revised the 
restrictions on new infrastructure in Sec.  2361.40 of the final rule 
to clarify that within Special Areas, infrastructure that will 
primarily be used by and provide a benefit to communities located 
within or in close proximity to the Reserve may be allowed provided 
that appropriate measures are adopted to assure maximum protection of 
significant resource values.
    Comment: Commenters stated that the definition of 
``infrastructure'' would allow for the authorization of temporary 
infrastructure for exploration, but would delay or prevent the BLM from 
authorizing infrastructure to support commercial development on 
existing leases. Comments further stated that this definition may 
result in a regulatory ``taking'' claim.
    BLM Response: The final rule expressly allows for the authorization 
of new infrastructure, as defined in Sec.  2361.5, that is necessary to 
honor the terms of a valid existing lease. The final rule will 
therefore not deprive a leaseholder of its rights under an existing 
lease.
    Comment: Commenters expressed the opinion that defining 
``infrastructure'' as ``essentially limited to structures or 
improvements in support of commercial oil and gas activities'' raises 
concerns about what types of infrastructure could be allowed within 
Special Areas and other sensitive regions. For example, ``Lease 
Stipulation K-1 does not apply to intercommunity roads or other 
permanent roads constructed with public funds for general 
transportation purposes. While the presence and use of such roads would 
have an effect on caribou and other significant resource values, it is 
not clear to what extent such infrastructure would fall within the 
proposed definition and thus come under the purview of maximum 
protection provisions.'' Commenters also stated that additional clarity 
is needed on ``where access and infrastructure could be allowed and how 
maximum protection will be assured in such areas.''
    BLM Response: The BLM revised the definition of ``infrastructure'' 
in the final rule to clarify what structures or improvements are 
regulated by this rule. The final rule defines the term as, ``a 
permanent or semi-permanent structure or improvement that is built to 
support commercial oil and gas activities on BLM-administered lands 
within the Reserve, such as pipelines, gravel drilling pads, man camps, 
and other structures or improvements.'' The revised definition further 
clarifies that ``infrastructure'' does not include structures or 
improvements that will primarily be used by and provide a benefit to 
communities located within or in close proximity to the Reserve. In 
addition, the rule is incorporating the IAP's prescriptions on 
infrastructure, and is not prescribing specific new measures for 
management of Special Areas.
    Comment: Commenters recommended that defining the term ``Integrated 
Activity Plan'' is not necessary, as the requirement under section 202 
of the FLPMA to prepare land use plans does not apply to the Reserve 
and, therefore, the IAP should not be defined as a land management 
plan. Commenters suggested the IAP is unique to the Reserve and it 
should remain that way.
    BLM Response: The BLM agrees that it does not develop IAPs to 
comply with section 202 of FLPMA, though it prepares IAPs to provide a 
framework for managing the Reserve. The BLM believes that the final 
rule should define the term ``IAP'' to accurately describe the 
relationship to the requirements in the rule and IAPs and to assist the 
BLM when preparing future IAPs.
    Comment: Commenters suggested that the BLM revise its proposed new 
definition of ``significant resource value'' to be consistent with 42 
U.S.C. 6504(a) and state ``any significant subsistence, recreational, 
fish and wildlife, historical, or scenic value identified by the BLM as 
supporting the designation of a Special Area.''

[[Page 38728]]

Commenters noted that omitting the word ``significant'' in the 
definition in the proposed rule is outside of BLM statutory authority 
and ``incorrectly lowers the requirements for designation of Special 
Areas'' to have significant resource values.
    BLM Response: The BLM believes that including the word 
``significant'' in the definition of ``significant resource value'' is 
redundant and circular. The definition makes clear that the value 
supports designation of a Special Area, which makes it significant. 
This definition is consistent with the NPRPA. To provide additional 
clarity and consistency with the NPRPA, the final rule specifies that 
the term ``significant resource values'' refers to surface values.
    Comment: Commenters requested a more precise definition of 
``significant resource value'' given that ``the creation and expansion 
of Special Areas that would subsequently preclude or severely limit oil 
and gas exploration and development is based on the presence of a 
significant resource value.'' The comment stated that ``this is an 
inadequate and circular definition.''
    BLM Response: The BLM declines this request. The significant 
resource values that BLM is required to assure maximum protection for 
are specifically listed in section 104(b) the NPRPA (42 U.S.C. 6504), 
and this rule is implementing the NPRPA.
    Comment: Commenters suggested the BLM revise the definition of 
``significant resource value'' because the proposed definition is 
``vague and would allow BLM to designate lands as having surface 
resources to support a special area designation if there are any 
subsistence, recreational, fish and wildlife, historical, or scenic 
values contained in the near vicinity.''
    BLM Response: The BLM declines this request. The definition comes 
from the plain language of the NPRPA.
    Comment: Commenters believe that the proposed definition of 
``significant resource value'' is contrary to statutory authority and 
should be revised since it is ``contrary to the requirements that 
Congress established for the designation of Special Areas.'' The 
comment states that when the definitions for ``Special Areas'' and 
``significant resource value'' are considered collectively, the 
proposed rule could be interpreted to remove the statutory requirement 
that ``restricts the designation of Special Areas to those areas 
containing certain significant values.''
    BLM Response: The BLM disagrees with the comment's interpretation 
of the two definitions. The definition of ``significant resource 
value'' recites the specific surface values listed in the NPRPA that 
may warrant designation and management of a Special Area by the 
Secretary of the Interior. The definition of ``Special Area'' makes 
clear those areas must have significant resource values. These 
definitions, and the rest of the regulation, do not provide for or 
imply that the BLM would designate Special Areas in the absence of 
significant resource values.
    Comment: A commenter suggested adopting the definition of ``Areas 
of Critical Environmental Concern'' as a substitute for the definition 
of ``Special Areas.''
    BLM Response: We decline that suggestion. The NPRPA provides a 
specific definition of what would be considered a Special Area, which 
differs from the definition of an Area of Critical Environmental 
Concern as defined in FLPMA.
    Comment: Commenters requested the BLM include oil and gas resources 
as a ``significant resource value'' given that the economic opportunity 
and revenue generated by oil and gas production provides significant 
value to the residents of the North Slope in the form of health and 
emergency services and other basic needs.
    BLM Response: We decline that suggestion. Section 104(b) of the 
NPRPA (42 U.S.C. 6504) specifically lists the surface resource values 
that should be considered--``containing any significant subsistence, 
recreational, fish and wildlife, or historical or scenic value''--and 
oil and gas is not one of them.
    Comment: Commenters opined that the revised definition of 
``significant resource value'' exceeds statutory authority in providing 
that such designated areas would be protected to a maximum standard. 
Commenters suggested the definition implies that Special Areas are held 
to a higher standard and that reasonable impacts associated with oil 
and gas development are not allowed. Commenters also opined that the 
proposed rule expands the definition of ``Special Areas'' beyond the 
scope of law. The definition would ``impede development of a 
competitive leasing and development program'' in the Reserve, as 
intended by Congress.
    BLM Response: We disagree. The definition in the proposed rule is 
consistent with the NPRPA, which explicitly states, ``to assure the 
maximum protection of such surface values to the extent consistent with 
the requirements of this Act.''
    Comment: Commenters recommended the definition of ``significant 
resource value'' explicitly exclude future oil and gas leasing, 
exploration, and development. Commenters believe that allowing leasing, 
exploration, and development within Special Areas is ``contrary to the 
goal of establishing Special Areas.''
    BLM Response: The BLM does not agree with this comment. Allowing 
some leasing, exploration, and development in Special Areas is not 
automatically inconsistent with the goal of Special Areas, which 
Congress specifically provided should be given maximum protection for 
their significant resource values consistent with the requirements of 
the Act for the exploration and production of oil and gas in the 
Reserve. This rule does not close areas to any activities beyond the 
closures already adopted by the IAP and leaves additional protective 
measures for area-specific analysis, subject to the processes described 
in this rule.
    Comment: The BLM requested comments on whether to include the 
definition of ``permanent oil and gas facilities'' as defined in the 
2022 IAP ROD. Commenters recommended removing the exclusions in the IAP 
definition because exploration wellheads and seasonal facilities such 
as ice roads and ice pads can be designed for use in successive winters 
and therefore should not be excluded. Commenters recommended that the 
BLM expand this definition to clearly encompass all permanent oil and 
gas facilities at any stage, including exploration and delineation, 
development, production, transportation, and decommissioning. 
Commenters encouraged the addition of water reservoirs and trenching 
done at any stage to be added to the definitions because these 
activities have long lasting effects on multiple resources. Commenters 
suggested that the definition include any development that permanently 
alters the surface resources or ecological values. Commenters 
recommended removing ``materials sites such as sand and gravel'' from 
the definition as they are not necessarily oil and gas related and they 
can be reclaimed.
    BLM Response: Based on the feedback received, the BLM is not 
including a definition for ``permanent facilities'' in the final rule. 
We believe that the revised definition of ``infrastructure'' in the 
final rule adequately encompasses this subject by clarifying that for 
the purposes of this rule ``infrastructure'' includes permanent and 
semi-permanent structures and improvements, and by providing 
explanation and examples of those structures and improvements.
    Comment: The BLM requested comments on whether to incorporate a

[[Page 38729]]

proposed definition of ``essential'' that resembles provisions of Lease 
Stipulation K-12 from the 2022 IAP ROD. In response to this request, 
some commenters stated that defining ``essential'' would provide 
clarity, and that the language of ``no other feasible and prudent 
option is available'' is good as a constraining description. Commenters 
suggested making the definition prioritize resource protection over 
production. Other commenters opined that the definition of 
``essential'' as written in the proposed rule is sufficient and is in 
line with the purpose of providing maximum protection to Special Areas.
    Commenters pointed out that they believe the definition of 
``essential'' in the 2022 IAP ROD differs slightly from the definition 
of essential in Sec.  2361.40(d)(3).
    BLM Response: The BLM is not including a definition for 
``essential'' in the final rule. After assessing public comment and the 
structure of the rule, the BLM instead eliminated the provision in the 
proposed rule that limited new permanent infrastructure related to 
existing oil and gas leases to that which is ``essential for 
exploration or development activities and no practicable alternatives 
exist. . .'' on lands within Special Areas that are allocated as 
unavailable to new infrastructure. Therefore, the term ``essential'' 
does not appear in the final rule. The provisions in the IAP, including 
the definition of the word ``essential'' in the stipulations, will 
apply.
    Comment: Commenters recommended defining the terms ``reasonably 
foreseeable'' and ``significantly adverse effects.'' Commenters also 
recommended defining the term ``effects'' to clarify that effects 
include effects on environmental, fish and wildlife, and historical or 
scenic values.
    BLM Response: We decline this request. These terms have standard 
accepted meanings and have been further clarified through their use in 
NEPA. The term ``effects'' is used throughout this rule in reference to 
environmental analysis that will occur and be documented under NEPA, 
and so defining the term separately here would create confusion.
    Comment: Commenters recommended that since ``rural resident'' is 
not defined in 50 CFR 100.4 but is defined in ANILCA Title VIII, the 
proposed rule should not reference 50 CFR 100.4.
    BLM Response: The regulations in 50 CFR part 100 implement the 
Federal Subsistence Management Program on public lands within the State 
of Alaska pursuant to the authority in Title VIII of ANILCA. While the 
term ``rural resident'' is used throughout ANILCA, it is not 
specifically defined; however, 50 CFR 100.4 defines the term ``rural'' 
and the term ``resident'' and then uses those terms in the definition 
of ``subsistence uses.'' The BLM will retain this citation.
    Comment: Commenters recommending defining the term ``ecological 
integrity'' in the rule because protecting surface resources requires 
maintaining the ecological integrity of surface resources. The 
scientific meaning of ``ecological integrity'' is the capability of 
supporting and maintaining a balanced, integrated, adaptive community 
of organisms having a species composition and functional organization 
comparable to that of the natural habitat of the region.
    BLM Response: The BLM did not include the term ``ecological 
integrity'' in the final rule, and therefore it is not defined in this 
section of the final rule.
    Comment: The BLM received a comment that the phrase ``minimize the 
disruption of natural flow patterns and changes to water quality'' 
should be replaced with ``maintain natural flow regimes and the 
ecological integrity of lotic and lentic ecosystems.'' ``Natural flow 
regime'' could be defined as the magnitude, frequency, duration, 
timing, and rate of change of flow events that characterize the 
hydrology of a natural river environment.
    BLM Response: This phrase is used in the 2022 IAP to describe the 
objectives of restrictions that the IAP applies to new oil and gas 
leases and infrastructure. The proposed rule and final rule incorporate 
the phrase to explain restrictions in the 2022 IAP that are codified by 
the rule. Because the rule is using language that is used in the 2022 
IAP, the BLM declines to change the wording here, which would create 
confusion.
    Comment: Commenters recommended defining the following terms in the 
regulation:
     Financial readiness means the lessee's financial 
capability to honor its contractual obligations.
     U.S. energy needs means the projected energy consumption 
of the United States of America in a given year, which comes from 
different sources such as nuclear power, natural gas, petroleum, 
renewable energy, and coal.
     Financial projection means the lessee's financial planning 
to estimate expected revenues, expenses, and cash flows which are 
normally used to build a company budget.
     Financial stress means a financial method designed to 
simulate the lessee's finances under adversarial situations.
     Financial balances means all the financial statements 
prepared by the lessee for cooperative reasons or to report to other 
U.S. agencies.
    BLM Response: These terms do not appear in the rule text and thus 
need not be defined in this rule.
    Comment: Some commenters recommending eliminating the new 
definitions for Indigenous Knowledge, Integrated Activity Plan, 
infrastructure, and significant resource values.
    BLM Response: We decline those suggestions. These definitions are 
needed to ensure clarity and consistency in the implementation of the 
proposed rule.
Description of the Final Rule
    In response to comments, the BLM revised the definition of 
``infrastructure'' in the final rule to clarify that the term means, 
``a permanent or semi-permanent structure or improvement that is built 
to support commercial oil and gas activities on BLM-administered lands 
within the Reserve, such as pipelines, gravel drilling pads, man camps, 
and other structures or improvements.'' The revised definition further 
clarifies that ``infrastructure'' does not include structures or 
improvements that will primarily be used by and provide a benefit to 
communities located within or in close proximity to the Reserve.
    The BLM also clarified in the final rule that the term 
``significant resource values'' refers to surface values, in order to 
ensure consistency with the language in the NPRPA. Similarly, the BLM 
made minor clarifications in the definition of the term ``Special 
Areas'' to ensure consistency with the language in the NPRPA. The final 
rule defines ``Special Areas'' as: ``areas within the Reserve 
identified by the Secretary or by statute as having significant 
resource values and that are managed to assure maximum protection of 
such surface values, to the extent consistent with the requirements of 
the Act for the exploration and production of the Reserve.''
    The final rule incorporates the definition for the term ``co-
stewardship'' that is used in BLM Permanent Instruction Memorandum No. 
2022-011 (Co-Stewardship with Federally Recognized Indian and Alaska 
Native Tribes Pursuant to Secretary's Order 3403). This definition was 
added in response to comments on Sec.  2361.60.
    All other definitions included in the proposed rule are carried 
forward to the final rule without change.

[[Page 38730]]

Section 2361.6--Effect of Law

Existing and Proposed Regulations
    Existing Sec.  2361.0-7 is redesignated to Sec.  2361.6 in the 
final rule. The BLM proposed to update this section to conform to 
existing legal authorities, including adding provisions to implement 
the Department of the Interior Appropriations Act, Fiscal Year 1981, 
Public Law 96-514 (Dec. 12, 1980), 94 Stat. 2957, 2964, in revised 
paragraph (a), and the Barrow Gas Field Transfer Act of 1984, Public 
Law 98-366 (July 17, 1984), 98 Stat. 468, 470, in new paragraph (b)(4).
Public Comments on Sec.  2361.6
    Commenters supported the provision included at proposed Sec.  
2361.6(b)(4) authorizing the Secretary to grant such rights-of-way to 
the North Slope Borough as may be necessary to permit the North Slope 
Borough to provide energy supplies to villages on the North Slope. We 
agree with these comments.
    Commenters recommended that this section state that the rule does 
not apply to oil and gas leases issued prior to the effective date of 
the rule. The BLM addresses the rule's application to existing oil and 
gas leases in responses to comments in section III(E) earlier in this 
preamble to the final rule (General Public Comments, Comments about oil 
and gas production).
Description of the Final Rule
    The BLM did not change this section of the proposed rule in the 
final rule.

Section 2361.7--Severability

Existing and Proposed Regulations
    The BLM proposed this new section to establish that if any 
provision of part 2360 is invalidated, then all remaining provisions 
would remain in effect.
Public Comments on Sec.  2361.7
    Commenters recommended the BLM remove this section from the final 
rule because they see it as unnecessary or uncharacteristic for a 
rulemaking. The BLM decided to retain this section as proposed in the 
final rule because the various components of the rule are distinct and 
may operate independently. As such, they should be considered 
separately by a reviewing court, and if any portion of the rule were to 
be invalidated, the remaining provisions could continue to provide the 
BLM with necessary tools to manage oil and gas activity and protect 
important resources in the Reserve.
    Many of the provisions simply update the regulations to bring them 
more into line with the BLM's statutory duties. Those updates would 
function independently of the rest of the rule. The procedural 
requirements in Sec.  2361.10(b) for protecting surface resources in 
the Reserve also would stand alone, as would the codification of 
existing Special Areas in Sec.  2361.20, the procedural requirements in 
Sec.  2361.30, the specific requirements for new infrastructure in 
Sec.  2361.40, and other provisions.
    Further, the paragraphs within specific sections may also function 
independently of each other. For example, the final rule's provisions 
pertaining to the management of oil and gas activities in Special Areas 
in Sec.  2361.40 describe how the authorized officer will assure 
maximum protection for significant resource values while allowing for 
exploration and production within the Reserve. Within that section, 
each paragraph serves a separate function, such as requiring the 
authorized officer to avoid the adverse effects of proposed oil and gas 
activities on the significant resource values of Special Areas; 
directing the authorized officer to identify, adopt, and update maximum 
protection measures; prescribing requirements for considering the 
authorization of new leases or infrastructure proposed in areas 
allocated as closed to leasing or unavailable to new infrastructure; 
prescribing different requirements for considering the authorization of 
new leases or infrastructure proposed in areas allocated as available 
for future oil and gas leasing or new infrastructure; and providing the 
framework for considering new oil and gas activities through a NEPA 
process. Hence, if a court prevents any provision of one part of this 
rule from taking effect, that should not affect the other parts of the 
rule. The remaining provisions would remain in force.
Description of the Final Rule
    The BLM did not change this section of the proposed rule in the 
final rule.

Section 2361.10--Protection of Surface Resources

Existing and Proposed Regulations
    Existing Sec.  2361.1 is redesignated to Sec.  2361.10 in the final 
rule, and the title is changed from ``protection of the environment'' 
to ``protection of surface resources'' to more closely track with the 
BLM's statutory authority under 42 U.S.C. 6506a(b), which directs the 
BLM to ``provide for such conditions, restrictions, and prohibitions as 
the Secretary deems necessary or appropriate to mitigate reasonably 
foreseeable and significantly adverse effects on the surface resources 
of the [Reserve].''
    The BLM proposed to establish new standards and procedures for 
managing and protecting surface resources in the Reserve from the 
reasonably foreseeable and significantly adverse effects of oil and gas 
activities. In 1980, Congress authorized the Secretary to mitigate 
those effects through ``necessary or appropriate'' ``conditions, 
restrictions, and prohibitions.'' 42 U.S.C. 6506a(b). Existing 
paragraph (a) requires the authorized officer to take action ``to 
mitigate or avoid unnecessary surface damage and to minimize ecological 
disturbance throughout the reserve to the extent consistent with the 
requirements of the Act for the exploration of the reserve.'' The BLM 
proposed to amend paragraph (a) to mirror the statutory language. As 
amended, paragraph (a) also provided further clarification by 
recognizing that, in some circumstances, the BLM may delay or deny 
proposed activities that would cause reasonably foreseeable and 
significantly adverse effects on surface resources.
    The proposed rule deleted existing paragraph (b). It concerns 
coordination between the BLM and the U.S. Geological Survey, which is 
no longer relevant because the Geological Survey is no longer 
responsible for managing exploration in the Reserve. Paragraph (b) in 
the proposed rule spelled out new procedures for protecting surface 
resources in the Reserve. As explained above, Congress assigned the BLM 
the duty to protect the surface resources in the Reserve, but BLM 
regulations do not fully explain the scope of that duty. The proposed 
rule was drafted to provide direction to the agency and the public in 
complying with Congress's mandate.
    In paragraph (b)(1), the proposed rule directed the BLM to manage 
oil and gas activities in accordance with the IAP. In doing so, the 
proposed rule enshrined longstanding BLM practice into regulations. As 
explained above, in the 1980 Amendments to the NPRPA Congress chose to 
exempt the Reserve from FLPMA's planning requirements (42 U.S.C. 
6506a(c)). Nonetheless, since 1998, the BLM has prepared several IAPs 
to primarily govern oil and gas activities in the Reserve. The IAP is a 
form of land use plan that ``addresses a narrower range of multiple use 
management than a resource management plan.'' 2013 NPR-A IAP ROD at 17. 
In the BLM's experience, the IAP provides an invaluable means of 
evaluating management options, engaging the public, and guiding 
decision-making, consistent with the BLM's responsibilities under 
applicable

[[Page 38731]]

Federal laws, including NPRPA and NEPA. Accordingly, the proposed rule 
required the BLM to maintain an IAP, which would provide predictability 
to industry and North Slope communities and help guide BLM use 
authorizations in the Reserve but would give way to the regulations in 
the event of a conflict.
    Paragraph (b)(2) of the proposed rule required the BLM, in each 
decision concerning oil and gas activity in the Reserve, to adopt 
measures to mitigate the reasonably foreseeable and significantly 
adverse effects on surface resources, taking particular care with 
surface resources that support subsistence. The BLM would do so by 
documenting for each decision its consideration of effects and how 
those effects informed the choice of mitigation measures. Paragraphs 
(b)(3) and (4) specified that the BLM's effects analysis would include 
any reasonably foreseeable effects, including indirect effects (those 
that are ``later in time or farther removed in distance''), cumulative 
effects (those ``that result from the incremental effects of proposed 
activities when added to the effects of other past, present, and 
reasonably foreseeable actions''), and ``any uncertainty concerning the 
nature, scope, and duration of potential effects.'' For example, if the 
BLM determined that a proposed lease sale's effects on subsistence 
resources--when added to the effects of other past, present, and 
reasonably foreseeable actions--could be significantly adverse, then 
under this proposed section, the BLM would need to adopt measures to 
mitigate those effects.
    The proposed rule deleted existing paragraphs (c) and (d). Existing 
paragraph (c) requires the BLM to take maximum protection measures on 
all actions within Special Areas and identify the boundaries of Special 
Areas on maps. It also describes some requirements that may constitute 
``maximum protection measures.'' Existing paragraph (d) concerns 
designation of new Special Areas. The proposed rule moved this content 
to Sec. Sec.  2361.20, 2361.30, and 2361.40, as most appropriate. 
Moving this material to those new sections would provide clarification 
by focusing Sec.  2361.10 on protection of surface resources throughout 
the Reserve.
    Proposed new paragraph (c) clarified that for surface resources in 
Special Areas, the BLM also would have to comply with the provisions 
governing Special Areas in Sec. Sec.  2361.20 through 2361.60. Moving 
the provisions concerning Special Areas to different sections makes 
that cross-reference necessary.
    Proposed new paragraph (d) required the BLM to include in each oil- 
and gas-related decision or authorization, ``such terms and conditions 
that provide the Bureau with sufficient authority to fully implement 
the requirements of this subpart.'' That provision would ensure that 
the BLM incorporates into decision documents whatever language is 
necessary to enable it to implement any final rule.
    Existing paragraph (e)(1) provides that ``the authorized officer 
may limit, restrict, or prohibit use of and access to lands within the 
Reserve, including special areas.'' The existing rule conditions that 
authority by requiring it to be exercised ``consistent with the 
requirements of the Act and after consultation with appropriate 
Federal, State, and local agencies and Native organizations.'' The 
proposed rule specified that the authorized officer has that authority 
``regardless of any existing authorization.'' That added language would 
clarify that existing authorizations would not prevent the BLM from 
limiting, restricting, or prohibiting access to the Reserve consistent 
with the requirements of the Act. The proposed rule retained the 
condition that exercises of that authority must be consistent with the 
NPRPA, and it added ``and applicable law'' to clarify that the 
authorized officer cannot contradict other legal requirements. Instead 
of requiring the authorized officer to consult with ``Native 
organizations,'' the proposed rule provided more specificity by 
requiring consultation with federally recognized Tribes and Alaska 
Native Claims Settlement Act corporations. Consistent with the BLM's 
duty under NPRPA and ANILCA, the proposed rule also amended paragraph 
(e)(1) to allow the authorized officer to limit, restrict, or prohibit 
use of and access to the Reserve to protect subsistence uses and 
resources.
    The proposed rule amended existing paragraph (f) to recognize the 
breadth of Federal laws that apply to the management and protection of 
historical, cultural, and paleontological resources in the Reserve.
Public Comments on Sec.  2361.10
    Comment: Commenters supported ``protection of surface resources'' 
and establishing new standards and procedures for managing and 
protecting surface resources in the Reserve from the foreseeable and 
significantly adverse effects of oil and gas activities.
    BLM Response: The BLM appreciates commenters acknowledging the 
intention of the regulations.
    Comment: Commenters recommended changing the title of this section 
to ``Protection of environmental values, including surface resources,'' 
to reflect the NPRPA which speaks to ``protection of environmental . . 
. values'' broadly. 42 U.S.C. 6503(b).
    BLM Response: The reference to surface resources is consistent with 
the NPRPA, which provides: ``Activities undertaken pursuant to this Act 
shall include or provide for such conditions, restrictions, and 
prohibitions as the Secretary deems necessary or appropriate to 
mitigate reasonably foreseeable and significantly adverse effects on 
the surface resources of the National Petroleum Reserve in Alaska.'' 43 
U.S.C. 6506a(b). The BLM did not change the title of this section in 
the final rule.
    Comment: Commenters recommended revising proposed Sec.  2361.10 to 
emphasize the overarching purpose of the Reserve for oil and gas 
production by clarifying that the NPRPA requires resource protection 
``to the extent consistent with the requirements of this Act for the 
exploration of the reserve.'' Other commenters recommended revising 
proposed Sec.  2361.10 to emphasize the overarching purpose of the 
Reserve for environmental protection by clarifying that the NPRPA 
requires protection of environmental values, including, but not limited 
to, surface resources.
    BLM Response: The BLM believes Sec.  2361.10 appropriately reflects 
the mandates in the NPRPA to conduct an oil and gas leasing and 
production program in the Reserve while protecting environmental, fish 
and wildlife, and historical and scenic values within the Reserve. The 
NPRPA specifically directs the BLM to mitigate adverse effects on the 
surface resources of the Reserve when conducting the oil and gas 
program. The BLM added the phrase ``oil and gas'' to modify 
``activities'' throughout this section of the final rule to clarify 
that these regulations are specific to the BLM's implementation of its 
oil and gas program in the Reserve.
    We also note that the final rule in Sec.  2361.40 references the 
BLM's mandate under the NPRPA to assure maximum protection of 
significant resource values in Special Areas ``consistent with the 
requirements of the NPRPA for exploration and production of the 
Reserve.''
    Comment: Commenters recommended that the BLM develop and explain 
the criteria it will use to determine the scope of effects that are 
both ``reasonably foreseeable'' and ``significantly adverse'' to 
provide

[[Page 38732]]

transparency and promote regulatory certainty.
    BLM Response: We decline that suggestion. These terms have a 
generally accepted meaning, including as a part of any NEPA analysis, 
and are also covered in the NEPA regulations in 40 CFR part 1500. 
Providing additional definitions in the rule would not add more 
clarity.
    Comment: Commenters recommended the rule should articulate that 
continued oil and gas activities at any scale in the Reserve will cause 
reasonably foreseeable and significantly adverse effects on surface 
resources in the Reserve and prohibit new leasing and production 
throughout the Reserve, as well as require delaying or denying proposed 
activities that would hinder the protection of surface resources.
    BLM Response: The BLM does not accept these recommendations. The 
requirements of the rule are consistent with the plain language of the 
NPRPA that requires all oil and gas activities in the Reserve be 
subject to ``such conditions, restrictions, and prohibitions as the 
Secretary deems necessary or appropriate to mitigate reasonably 
foreseeable and significantly adverse effects.'' Further, Sec.  
2361.10(a) specifically provides for the BLM to condition, delay, or 
deny some or all proposed activities as may be necessary to fulfill 
these requirements.
    Comment: The BLM received comments stating that, while the preamble 
states that the Reserve's standards related to the protection of 
surface values would also fulfill the BLM's mandate to take action 
necessary to prevent unnecessary or undue degradation, there is no 
mention of this obligation in the proposed rule. Commenters requested 
that the BLM add provisions that expressly reference and incorporate 
unnecessary or undue degradation standards or include cross references 
to those standards in Sec. Sec.  2361.10 and 2361.40.
    BLM Response: The BLM declines the request to expressly reference 
FLPMA's unnecessary or undue degradation provision in the rule. FLPMA 
requires the BLM to prevent unnecessary or undue degradation on all 
BLM-managed public land. This mandate applies to a broader range of 
uses within the Reserve than are being addressed in this rule and the 
BLM will prevent unnecessary and undue environmental degradation within 
the Reserve whether or not it is specifically identified in Sec. Sec.  
2361.10 and 2361.40. Nevertheless, the BLM did add FLPMA to the 
Authorities section of the rule.
    Comment: The BLM received comments stating that the NPRPA requires 
mitigation, but commenters expressed concern that the rule focuses on 
prevention.
    BLM Response: The BLM follows a mitigation hierarchy that generally 
includes avoidance as the first step in mitigating adverse effects on 
public land resources and values, consistent with the CEQ regulations 
implementing NEPA, particularly 40 CFR 1508.1(s). In pursuit of the 
BLM's mandate under the NPRPA to ``provide for such conditions, 
restrictions, and prohibitions as the Secretary deems necessary or 
appropriate to mitigate reasonably foreseeable and significantly 
adverse effects on the surface resources of the [Reserve]'', the rule 
draws on all steps of the mitigation hierarchy, including preventing 
impacts entirely through avoidance where appropriate. For example, 
Sec.  2361.10(a) requires the Bureau to protect surface resources by 
adopting appropriate measures to mitigate reasonably foreseeable and 
significantly adverse effects of proposed oil and gas activities; Sec.  
2361.10(b)(2) requires the authorized officer to adopt measures to 
mitigate reasonably foreseeable and significantly adverse effects on 
surface resources, particularly with regard to those resources that 
support subsistence use and needs; and Sec.  2361.40(g) requires the 
authorized officer to evaluate and require mitigation measures to 
address adverse effects on significant resource values when considering 
authorizing oil and gas leasing or new infrastructure in a Special 
Area.
    Comment: The BLM received comments concerning the phrase, 
``delaying action on, or denying some or all aspects of proposed 
activities'' in proposed Sec.  2361.10(a). Some commenters suggested 
that the BLM lacks the statutory authority to delay or deny activities 
in the Reserve. Other commenters supported the provision in the 
proposed rule and recommended the BLM describe circumstances that would 
warrant denying proposed activities. Commenters recommended this 
provision should discuss mitigating reasonably foreseeable and 
significantly adverse effects to the climate. Commenters requested the 
final rule specifically provide that if differences in caribou 
behavior, distribution, or harvests are detected, BLM will prohibit 
additional development.
    BLM Response: The NPRPA provides the BLM with the authority to 
``provide for such conditions, restrictions, and prohibitions as the 
Secretary deems necessary or appropriate to mitigation reasonably 
foreseeable and significantly adverse effects on the surface resources 
of the [Reserve].'' Additionally, the BLM's oil and gas lease forms for 
leases issued in the Reserve include terms that enable the BLM to 
require measures deemed necessary to minimize adverse impacts to the 
land, air, and water; to cultural, biological, visual, and other 
resources; and to other land uses or users. Examples of how the BLM 
might exercise this authority would be to reduce the number of drill 
pads or density of roads in a development proposal to protect caribou 
calving, restrict timing on drilling activities to protect subsistence 
activities, or phase project components to limit the amount of habitat 
being impacted at a given time.
    Analyzing climate impacts of oil and gas development is not part of 
this rule, which is focused on impacts to surface values of special 
areas and surface resources broadly. Climate change impacts the surface 
values that the BLM is required to protect, including subsistence 
resources, fish and wildlife habitat, and recreation opportunities, and 
those impacts will be analyzed and addressed through NEPA processes 
when evaluating potential projects. Similarly, the BLM is not 
addressing specific resource values such as caribou in the rule; 
however, caribou habitat will be considered as a significant resource 
value where appropriate as the BLM implements the rule.
    Comment: Commenters stated concerns that proposed Sec.  2361.10(a) 
will result in violations of valid existing lease rights, and that the 
BLM should provide clear assurance that the government will not 
withhold approval for reasonable proposals for infrastructure, such as 
roads and pipelines, necessary to bring valid existing leases into 
production.
    BLM Response: We do not agree with these assertions. The BLM will 
implement Sec.  2361.10(a) consistent with valid existing lease rights. 
As discussed in more detail in section III(E) above, while the rule 
will not affect the terms of an existing lease or approved development 
project or permit, future development of an existing lease may be 
subject to additional terms and conditions if necessary to ensure that 
the BLM's decision is consistent with its statutory responsibility to 
mitigate reasonably foreseeable adverse effects of oil and gas activity 
on the surface resources as required by the NPRPA. For example, the 
Willow Master Development Plan includes numerous lease stipulations, 
required operating procedures, and mitigation measures intended to 
avoid, minimize, or otherwise mitigate the effects of oil and gas 
production on surface resources.
    Comment: The BLM received comments stating that the proposed rule

[[Page 38733]]

is not adaptive as it only requires future leases to comply with lease 
stipulations and ``by exempting all the currently authorized 
activities, the BLM constrains its ability to adapt its resource 
management strategy in response to climate change.'' The BLM also 
received comments stating that ``concerns about breach-of-contract 
claims against the Federal Government are ill-founded as BLM has 
reserved the right--in the lease itself--to set the rate of 
production.'' The commenters state that the BLM can use the authority 
granted in the lease language to create regulations that deny or 
prohibit additional oil and gas exploration and development as well as 
suspend operations and production of current drilling. Comments express 
that the NPRPA gives BLM authority to restrict or suspend activities in 
the Reserve and state that the BLM ``can do so `in the interest of 
conservation of natural resources' or to `mitigate reasonably 
foreseeable and significantly adverse effects on surface resources.' ''
    BLM Response: The rule will apply to existing leases to the extent 
it is compatible with the terms of those leases. The BLM is not 
exempting all currently authorized activities but is constrained by 
valid existing rights.
    Comment: Commenters recommended that the BLM state that its ability 
to impose mitigation is only related to activities specifically 
undertaken pursuant to the NPRPA, and that for mitigation to apply, the 
NPRPA activity must cause effects `on the surface resources' of the 
Reserve.
    Commenters requested that the BLM make commitments related to 
mitigation measures for the ecosystems and species affected by oil and 
gas development, as well as design and adopt a comprehensive mitigation 
plan for impacts to threatened or endangered species in the Reserve. 
The BLM received comments requesting the BLM supplement its 2022 IAP 
with additional mitigation measures that address the impacts of all 
permitted activities in the Reserve as well as the cumulative impacts 
of actions outside of agency control.
    BLM Response: As discussed above, the BLM has authority to require 
mitigation of impacts to public lands resources from authorizations and 
other Federal actions in the Reserve, consistent with the NPRPA and 
FLPMA. For example, the NPRPA requires that oil and gas authorizations 
include provisions to mitigate reasonably foreseeable and significantly 
adverse effects on surface resources. The rule is clear that the 
mitigation requirements in Sec.  2361.10(b)(2) apply to adverse effects 
on surface resources of the Reserve, and the final rule specifies in 
paragraph (b) that the requirements in the section apply to proposed 
oil and gas activities. The BLM further notes that although this rule 
would only apply to oil and gas activities, protection of surface 
resources from other actions may be addressed through other means, such 
as the IAP and site-specific authorizations. The BLM is not developing 
mitigation plans or supplementing the 2022 IAP as part of this 
rulemaking process.
    Comment: Commenters recommended adding evaluation procedures before 
proposed Sec.  2361.10(b)(1) that would require the BLM to evaluate the 
condition of surface resources within the Reserve at least every 5 
years, including a climate impacts assessment.
    Commenters recommended adding a new section requiring a commitment 
to survey and monitor significant surface resources on an on-going 
basis and to rigorously study changes in and impacts to those 
resources.
    Commenters recommended that the regulations require the BLM to 
establish baseline data for resources in the Reserve, including 
specifically caribou distribution and movement, subsistence food 
contamination, and air quality data.
    BLM Response: The BLM does not currently have the resources to 
conduct a full evaluation of all surface resources in the Reserve every 
5 years. Under Sec.  2361.30, the BLM will evaluate the Reserve for 
significant resource values every 10 years, which will provide 
important resource inventory and monitoring information at regular 
intervals and enable the BLM to study changes to those resources over 
time, including the impacts from a changing climate. Additionally, 
under Sec.  2361.10(b)(1), the BLM will maintain an IAP addressing 
management of all BLM-administered lands and minerals throughout the 
Reserve. The IAP amendment process will provide opportunities for the 
BLM to evaluate all surface resources within the Reserve on a regular 
basis and update baseline data for those resources.
    Comment: Commenters stated that the BLM must ensure an appropriate 
framework for IAP development that is consistent with Federal law and 
follows NEPA's process for public participation. The BLM received a 
comment requesting that the language in the proposed rule requiring the 
BLM to maintain an IAP for the Reserve be removed from the rule as it 
could prematurely restrict the BLM's ability to make informed decisions 
with respect to future IAPs.
    BLM Response: The BLM has been preparing IAPs since 1998 through a 
NEPA process and is incorporating this requirement into the rule to 
ensure ongoing, robust public participation in preparation of these 
management plans. Merely requiring the BLM to maintain an IAP for the 
Reserve does not restrict decision-making space for future IAP 
amendments.
    Comment: Commenters discussed integrating the 2022 IAP into the 
rule; some commenters were concerned that the IAP would not address 
long-term impacts from resource extraction and asked the BLM to perform 
a comprehensive review of the plan. Other comments requested the BLM 
support and align with the IAP as it is a system that already works and 
is ``highly protective of surface resources in the NPR-A, but it does 
not preclude oil and gas development.''
    BLM Response: The 2022 IAP was based on a previous, multi-year 
environmental analysis and public engagement process. The BLM is not 
reviewing the plan at this time. The rule aligns with the 2022 IAP and 
codifies portions of it related to Special Area designation and 
management.
    Comment: Commenters recommended the rule require measures to 
mitigate reasonably foreseeable and significantly adverse effects on 
carbon storage, an ecosystem service that is currently provided by 
boreal peatlands and permafrost. Commenters recommended the rule 
require measures to mitigate reasonably foreseeable and significantly 
adverse effects on caribou and their habitat.
    BLM Response: The NPRPA requires that oil and gas authorizations 
including provisions to mitigate reasonably foreseeable and 
significantly adverse effects on surface resources. The rule is clear 
that the mitigation requirements in Sec.  2361.10(b)(2) apply to 
adverse effects on surface resources of the Reserve, and the final rule 
specifies in paragraph (b) that the requirements in the section apply 
to proposed oil and gas activities. In addition, the BLM has authority 
to mitigate impacts to public lands resources from authorizations and 
other Federal actions in the Reserve, consistent with the NPRPA and 
FLPMA. The BLM is not developing mitigation measures for specific 
resources as part of this rulemaking process.
    Comment: Commenters suggested that the requirement in proposed 
Sec.  2361.10(b)(3) to consider any reasonably foreseeable effects, 
including indirect effects and cumulative effects, unnecessarily 
duplicates the BLM' s existing obligations under NEPA. Other commenters 
recommended that the

[[Page 38734]]

BLM clarify in proposed Sec.  2361.10(b)(3) that reasonably foreseeable 
effects include effects from activities that have not yet been proposed 
but that are induced by the proposed activity. The BLM received 
comments stating that the NPRPA does not authorize the BLM to consider 
incremental effects of proposed activities when authorizing activities 
in the NPRPA nor does it allow the BLM to condition, restrict, or 
prohibit activities because of potential effects from activities 
outside of the Reserve.
    BLM Response: The BLM removed Sec.  2361.10(b)(3) from the final 
rule because it was duplicative of the agency's obligations under NEPA 
and potentially confusing to restate in the rule. We note that NEPA 
obligates the BLM to analyze direct, indirect, and cumulative impacts, 
including to consideration of the impacts of reasonably foreseeable 
future actions, when making decisions about authorizing activities.
    Comment: The BLM received comments regarding proposed Sec.  
2361.10(b)(4), specifically the use, meaning, and implication of the 
phrase ``any uncertainty concerning the nature, scope, and duration of 
potential effects'' in the proposed rule. Some commenters suggested 
that the BLM lacks the statutory authority to consider ``any 
uncertainty'' in potential effects and then implement restrictions on 
proposed activities that ``account for and reflect such uncertainty'' 
for any impacts. Other commenters supported the requirement in the 
proposed rule for the BLM to account for uncertainty regarding 
potential impacts of proposed development and recommended the final 
rule include more specificity about what qualifies as uncertainty and 
how it can be considered in decisions.
    BLM Response: We decline these suggestions. Considering uncertainty 
is a standard practice for any Federal agency that completes NEPA 
analysis. Agencies are required to use high quality information and 
science and data when conducting their analysis. To the extent there 
are uncertainties, current regulations in 40 CFR 1502.21(a) address 
incomplete or unavailable information in analysis and state that ``When 
an agency is evaluating reasonably foreseeable significant adverse 
effects on the human environment in an environmental impact statement, 
and there is incomplete or unavailable information, the agency shall 
make clear that such information is lacking.'' The text in the 
regulation builds on the language in the NEPA regulations to require 
more specific discussion of how the BLM is taking uncertainties into 
account in making decisions, which is within the BLM's authority and 
beneficial in light of the rapidly changing conditions in the Arctic.
    Comment: Commenters recommended Sec.  2361.10(b)(4) explicitly 
state that the BLM must base its decisions on the best available 
science and will not rely solely on the lack of scientific certainty 
when declining to impose any conditions, restrictions, or prohibitions.
    BLM Response: The BLM declines this request. Including this 
language would be duplicative of the requirements of the NEPA process 
and other aspects of the regulation.
    Comment: Commenters recommended adding a new Sec.  2361.10(b)(5) 
that states: In assessing effects of a decision concerning proposed 
activity in the Reserve, the Bureau will identify and evaluate any 
significantly adverse effects of its decision, including any effects on 
environmental, fish and wildlife, and historical or scenic values that 
are individually or collectively significant and any impacts associated 
with greenhouse gas emissions.
    BLM Response: The BLM declines this request. The first part of the 
proposed requirement is duplicative with the BLM's NEPA process and the 
requirement in the NPRPA to mitigate significantly adverse effects. 
Further, analyzing the climate impacts of oil and gas development is 
not part of this rule, which is focused on addressing impacts to 
significant resource values of Special Areas and surface resources in 
the Reserve. The BLM analyzes climate impacts as part of NEPA analysis 
when evaluating potential projects, including leasing and development 
decisions.
    Comment: Commenters expressed concern with limiting consultation in 
paragraph (e)(1) to federally recognized Tribes and ANCSA corporations 
and requested that BLM consultation be more inclusive than just those 
two groups. Commenters requested the BLM add a requirement to engage in 
meaningful communication and consultation with local villages and 
Tribes to ensure the new regulations meet the needs and concerns of the 
communities who rely on the Reserve.
    BLM Response: The BLM did not consider a broader approach to 
consultation in the proposed rule, and so the final rule does not adopt 
such an approach. The BLM works closely with local communities when 
making management decisions for the Reserve and will continue to engage 
and communicate with local communities in implementing the rule, 
independent of formal consultation efforts.
    While not considered government-to-government consultation, per 512 
DM 6, it is the policy of the Department to recognize and fulfill its 
legal obligations to consult with ANCSA Corporations on the same basis 
as Alaska Native Tribes. Native organizations are always invited to 
participate in the public-involvement periods of NEPA projects and lend 
their voices to management actions within the Reserve or on any BLM-
managed public lands.
    Comment: Commenters recommended the BLM define the role of the 
North Slope Science Initiative (NSSI) with respect to surveys and 
monitoring, the evaluation of effects, recommendations for modified 
protections and restrictions, and mitigation measures.
    BLM Response: The NSSI is an advisory body that is intended to 
coordinate inventories, monitoring, and research for a better 
understanding of terrestrial, aquatic, and marine ecosystems of the 
North Slope of Alaska, and was established by the Secretary pursuant to 
section 348 of the Energy Policy Act of 2005, Public Law 109-58, 119 
Stat. 594, 708 (2005) (codified at 42 U.S.C. 15906). While the NSSI 
provides valuable information, the BLM does not believe it is 
appropriate for these regulations that apply only to BLM-managed public 
lands in the Reserve to define NSSI's role. The NSSI is a body that 
coordinates scientific efforts between agencies and provides guidance 
and recommendations to the Secretary, the BLM, and other agencies 
within the Department.
    Comment: Commenters recommended the BLM include a presumption 
against all oil and gas activities in Sec.  2361.10 similar to the 
presumption proposed in Sec.  2361.40(c) to ensure protection against 
significantly adverse effects.
    BLM Response: A presumption against all oil and gas activities in 
the Reserve would not be consistent with the NPRPA, which requires the 
BLM to conduct an oil and gas leasing program in the Reserve. The NPRPA 
imposes special requirements on the BLM to protect significant resource 
values within Special Areas, which is why the presumption is only 
included in Sec.  2361.40. We note the final rule provides 
opportunities for the BLM to avoid and mitigate adverse impacts on 
surface resources generally. For example, Sec.  2361.10(a) requires the 
BLM to protect surface resources by adopting whatever conditions, 
restrictions, and prohibitions it deems necessary or appropriate to 
mitigate reasonably foreseeable and significantly adverse effects of 
proposed oil and gas activities, including conditioning, delaying 
action on, or denying some or all aspects of proposed oil and gas 
activities.

[[Page 38735]]

    Comment: Commenters recommended the final rule stipulate that the 
BLM will not waive lease stipulations or mitigation provided by 
Required Operating Procedures (ROPs) unless the threats to the 
resources that supported the ROPs no longer exist.
    BLM Response: We decline that suggestion. ROPs are a standard 
practice across the BLM and describe the protective measures that the 
BLM will impose on applicants during the permitting process. Similar to 
lease stipulations, the objective of a ROP must be met in order for 
exceptions, modifications, or waivers to be granted under the 2022 IAP. 
At the permitting stage, the BLM authorized officer will not include 
those ROPs that, because of their location or other inapplicability, 
are not relevant to a specific permit application. We also note that at 
the permit stage, the BLM may establish additional requirements as 
warranted to protect the land, resources, and uses in accordance with 
the BLM's responsibilities under relevant laws and regulations.
    Comment: Commenters recommended the rule require the BLM to 
consider and adopt as necessary measures to specify the rates of 
development and production in the public interest. Commenters 
recommended the rule include a provision that the BLM may specify the 
rate of production and limit or suspend activity on leases. Commenters 
also requested that the rule update the pricing of bonds or schemes 
that standardize financial health requirements for lessees (such as 
those found in the Surface Mining Control and Reclamation Act) and 
reflect the true cost of development and the increased risk of 
abandonment for oil and gas projects in the Reserve.
    BLM Response: The BLM declines this request. Regulations for oil 
and gas leasing and production within the Reserve are covered in 43 CFR 
part 3130, which the BLM is not revising in this rule. The standard 
lease terms and conditions also provide for the BLM to provide 
conditions on production.
    Comment: Commenters recommended the BLM recognize and enforce water 
quality standards identified by Native landowners near Utqiagvik and 
Nuiqsut to protect watersheds that extend beyond Special Areas.
    BLM Response: We decline that suggestion. While the BLM requires 
compliance with applicable laws, this addition would be outside the 
scope of this rulemaking.
    Comment: Commenters asked for clarification in Sec.  2361.10 about 
subsistence use under ANILCA section 811, and recreational shooting 
under the Dingell Act.
    BLM Response: We decline that suggestion. The proposed rule 
addresses oil and gas activities and does not limit subsistence use 
access or preclude recreational shooting.
    Comment: Commenters requested increased protections for vegetation, 
as regeneration of vegetation is dependent on environmental conditions.
    BLM Response: We decline this suggestion. Vegetation is included 
because it is encompassed by ``the environmental, fish and wildlife, 
and historical and scenic values of the National Petroleum Reserve in 
Alaska.''
    Comment: Commenters expressed concern about the ability to 
challenge the BLM's oil and gas related decisions.
    BLM Response: The regulation does not change procedural 
requirements for public participation in the BLM's decision-making 
processes.
    Comment: Commenters asked the BLM to include burying pipelines in 
lease requirements.
    BLM Response: This issue is addressed at the project level, as a 
mitigation measure or design feature associated with a specific 
development proposal. The BLM declines to include this requirement in 
this regulation.
    Comment: Commenters expressed support for the BLM's integration of 
the IAP into the proposed rule, including in sections pertaining to 
protection of surface resources and designation and management of 
Special Areas, regarding the obligation that the BLM must consult 
specifically with ``federally recognized Tribes'' not ``Native 
organizations.''
    BLM Response: We appreciate the support.
    Comment: Commenters requested that the BLM analyze future 
development on a case-by-case basis prioritizing consultation and 
coordination with those people who are directly impacted.
    BLM Response: The BLM analyzes specific development proposals on a 
case-by-case basis through the NEPA process, and that process is 
unchanged by this regulation. The BLM will continue to consult with 
appropriate Federal, State, and local agencies, and with federally 
recognized Tribes, and Alaska Native Claims Settlement Act corporations 
as required by laws, regulations, and policies governing government-to-
government consultation. The BLM also made minor edits to the language 
of this section for clarity. The BLM will also continue to engage 
stakeholders, local communities, and the general public in decision-
making processes for development projects.
Description of the Final Rule
    In response to comments, the BLM removed paragraph (b)(3) from the 
final rule because it is duplicative of environmental analysis 
requirements under NEPA. The BLM also added ``oil and gas'' before the 
word ``activities'' throughout the section to clarify that the 
requirements of this rule only apply to oil and gas activities. The 
final rule clarifies that new use authorizations must conform to any 
designation or modifications of Special Areas that have occurred 
outside of the IAP.
    The final rule replaces ``Bureau'' with ``authorized officer'' to 
provide clarity about the BLM official responsible for implementing 
requirements in the rule. The final rule defines authorized officer as 
``any employee of the Bureau of Land Management who has been delegated 
the authority to perform the duties of this subpart.'' This term refers 
to an employee that carries out duties that are carefully circumscribed 
by this rule, other relevant regulations, and Bureau policy, such as 
the BLM delegation of authority manual. This employee's duties are also 
subject to the control or direction of other executives including the 
BLM Director, the Assistant Secretary for Land and Minerals Management, 
the Deputy Secretary, and the Secretary, all of whom are officers of 
the United States, appointed by the President and confirmed by the 
Senate. The remainder of the section is unchanged from the proposed 
rule.

Section 2361.20--Existing Special Areas

Existing and Proposed Regulations
    The existing regulations only identify the Colville River, 
Teshekpuk Lake, and Utukok River Uplands Special Areas by name (Sec.  
2361.1(c)); they do not account for the Kasegaluk Lagoon and Peard Bay 
Special Areas. Further, the current regulations do not identify or 
describe the significant resource values associated with each Special 
Area. Under the NPRPA, the BLM must assure maximum protection of each 
of these values consistent with exploration of the Reserve. In pursuit 
of that obligation, the proposed rule established new Sec.  2361.20 to 
incorporate all five of the existing Special Areas into part 2360 and 
identify the significant subsistence, recreational, fish and wildlife, 
historical, and scenic values that are associated with each of them.
    The proposed rule required any lands designated as a Special Area 
to continue to be managed as such for the already-identified values and 
any additional values identified through the process set forth in new 
Sec.  2361.30. The existing

[[Page 38736]]

regulations (Sec.  2361.1(c)) require the boundaries of the Special 
Areas to be depicted on maps available for public inspection in the 
BLM's Fairbanks District Office. Proposed Sec.  2361.20 specified that 
a map of each Special Area would be available at the Arctic District 
Office, which is now the BLM office that oversees the Reserve. The BLM 
would also publish and maintain copies of these maps on its website.
Public Comments on Sec.  2361.20
    Comment: The BLM received comments expressing support of the 
existing Special Areas section, stating appreciation for proposing to 
recognize all five of the existing Special Areas and their significant 
resource values in regulations. Commenters believe that this 
establishes management priorities against which development proposals 
can be evaluated and mitigated.
    BLM Response: We agree recognizing all existing Special Areas in 
the regulation will provide increased transparency and clarity for 
managing these areas and their significant resource values.
    Comment: Commenters recommended changes to management of existing 
Special Areas, such as by closing them to oil and gas leasing and 
development and strengthening prohibitions against oil and gas 
infrastructure or development impacts.
    BLM Response: The BLM is not changing the specific management 
prescriptions for existing Special Areas as part of this rulemaking 
process, as those decisions were most recently identified in the 2022 
IAP. The rule codifies the existing Special Areas and their significant 
resource values as currently established in Secretarial decisions. The 
final rule establishes a process in Sec.  2361.30 for designating, 
amending, and de-designating Special Areas. Changes to management of 
existing Special Areas will follow that process.
    Comment: Commenters recommended changes to the boundaries of 
existing Special Areas and specified additional values associated with 
existing Special Areas and recommended the BLM add those values to the 
final rule.
    Comments specific to the Teshekpuk Lake Special Area include:
     Polar bears have begun inhabiting the Teshekpuk Lake area 
due to the receding sea ice and should be identified as a significant 
resource value;
     Pik Dunes has unique geologic character, 
insect[hyphen]relief habitat for caribou, rare endemic plant 
populations, use by various water and shorebirds, and scenic and 
recreational value, and should be closed to fluid mineral leasing, new 
infrastructure, and other activities including sand and gravel mining;
     The Special Area should be expanded to include the area 
between the Teshekpuk Lake Special Area western boundary and the 
village of Atqasuk, which has high density of Yellow[hyphen]billed 
loons, Red-throated Loons, King Eider, raptor nests, and caribou 
calving sites;
     The Qupaluk Flyway Network Site be reviewed to ensure that 
it is not available for leasing or infrastructure; and
     The Special Area is unnecessarily large, and the BLM 
should re[hyphen]analyze the Teshekpuk Lake Special Area boundaries 
before finalizing the rule.
    Comments specific to the Colville River Special Area include:
     The final rule should be updated to reflect the following 
special resource values are present in the Special Area: caribou summer 
range, winter range, and migratory connectivity; suitable Wild and 
Scenic Rivers; Yellow-billed loons; raptors; and moose;
     The Colville River Delta is particularly important for 
birds and should be closed to all to oil and gas leasing;
     The Arctic peregrine falcon has been delisted, so the 
Special Area should be decreased or eliminated;
     The Special Area should be considered critical habitat for 
the Arctic peregrine falcon; and
     Parts of the Special Area, specifically Ocean Point, are 
important for subsistence, yet heavy traffic and long[hyphen]term 
impacts from development threaten caribou migration and subsistence 
hunting.
    Comments specific to the Kasegaluk Lagoon Special Area include:
     The Special Area is important for brants, shorebird 
migration, Red[hyphen]throated and Yellow[hyphen]billed loons, and the 
significant resource values for the Special Area should include 
high[hyphen]use staging and migration area for waterfowl, shorebirds, 
loons, and other waterbirds.
    Comments specific to the Utukok River Uplands Special Area include:
     The final rule should be updated to reflect that suitable 
Wild and Scenic Rivers are special resource values in the Special Area;
     The final rule should designate an area north and west of 
the Kokolik River near the west boundary of the Reserve as part of the 
Utukok River Uplands Special Area to help avoid river crossings of the 
Kokolik River to access potential development areas and better protect 
the Kokolik River; and
     The final rule should move the northern border of the area 
unavailable for leasing and new infrastructure to cover all of the 
Utukok River Upland Special Area as this area was not included in the 
area made unavailable for leasing and infrastructure in the 2013 IAP. 
Commenters state that the reasons for excluding it no longer exist and 
failing to make this area unavailable for leasing infrastructure may 
lead to Western Arctic Caribou Herd calving habitat loss under possible 
future developments.
    BLM Response: The BLM did not amend the rule in response to 
specific comments regarding the significant resource values or 
boundaries of existing Special Areas. The rule merely codifies the 
existing Special Areas and their significant resource values as 
currently identified by Secretarial decisions designating or amending 
the Special Areas. The final rule establishes a process in Sec.  
2361.30 for designating, amending, and de-designating Special Areas. 
Changes to existing Special Areas, including identifying additional 
values and changing management, will follow that process, recognizing 
that the BLM may not remove lands from the Teshekpuk Lake and Utukok 
River Uplands Special Areas unless directed to do so by statute. The 
protections for a surface value in a Special Area are not limited to 
those protections in the IAP or other Secretarial decisions relating to 
the establishment of Special Areas. For example, polar bears are 
protected by the Marine Mammal Protection Act, 16 U.S.C. 1531 et seq., 
and the Endangered Species Act, 16 U.S.C. 1531-1544. Indeed, as shown 
in the 2013 IAP map 3.3.8-6, a significant portion of polar bear 
denning critical habitat in the Reserve and a number of identified dens 
are located within the Teshekpuk Lake Special Area, which provides an 
additional layer of protection for that species.
Description of the Final Rule
    The BLM did not change this section of the proposed rule in the 
final rule. The following existing Special Areas are codified in the 
final rule:
     Colville River Special Area, which has important habitat 
for raptor and other bird species, including the Arctic peregrine 
falcon; important habitat for moose; important habitat for fish; 
important subsistence activities; important recreational activities; 
world-class paleontological deposits; and significant cultural 
resources;
     Kasegaluk Lagoon Special Area, which has important habitat 
for marine mammals; unique ecosystem for the Arctic Coast; 
opportunities for primitive

[[Page 38737]]

recreational experiences; important habitat for migratory birds; and 
important subsistence activities;
     Peard Bay Special Area, which has haul-out areas and 
nearshore waters for marine mammals; and high-use staging and migration 
areas for shorebirds and waterbirds;
     Teshekpuk Lake Special Area, which has important habitat 
for a large number of migratory and other waterbirds; important caribou 
habitat; important shorebird habitat; subsistence hunting and fishing 
activities; Pik Dunes; and overwintering habitat for fish; and
     Utukok River Uplands Special Area, which has important 
habitat for the Western Arctic Caribou Herd; subsistence hunting 
activities; grizzly bear habitat; and important wilderness values.
    Additional details on the significant resource values of each 
Special Area are found in the preamble to the proposed rule.

Section 2361.30--Special Areas Designation and Amendment Process

Existing and Proposed Regulations
    The existing regulations provide general direction for recommending 
and considering additional Special Areas in Sec.  2361.1(d). In the 
past, the BLM has typically designated Special Areas, and received 
Special Area recommendations from the public and stakeholders, through 
the IAP revision and amendment process. Enumerating procedures for 
designating and amending Special Areas in the regulations will provide 
clarity for stakeholders and ensure that the BLM fulfills its statutory 
obligation to assure maximum protection of Special Areas' significant 
resource values.
    The proposed rule added a new section to provide standards and 
procedures for designating and amending Special Areas. Paragraph (a) 
required the BLM, at least once every 5 years, to evaluate lands in the 
Reserve for significant resource values and designate new Special Areas 
or update existing Special Areas by expanding their boundaries, 
recognizing the presence of additional significant resource values, or 
requiring additional measures to assure maximum protection of 
significant resource values. Paragraph (a)(2) allowed, but did not 
require, the BLM to conduct this evaluation through the IAP amendment 
process. Paragraph (a)(3) required the BLM to rely on the best 
available scientific information, including Indigenous Knowledge, and 
the best available information concerning subsistence uses and 
resources.
    Paragraph (a)(4) required the BLM to provide meaningful 
opportunities for public participation in the evaluation process, 
including review and comment periods and, as appropriate, public 
meetings. Existing Sec.  2361.1(d) concerns the submission, content, 
and public review of recommendations for additional Special Areas. 
Proposed paragraph (a)(4) retained the basic contours of that provision 
but provided additional specificity. The proposed language allowed the 
public to participate in the evaluation process, including by 
recommending new Special Areas, new significant resource values for 
existing Special Areas, and measures to assure maximum protection of 
Special Areas' significant resource values. The proposed rule required 
the BLM to evaluate and respond to such recommendations. Similar to 
existing Sec.  2361.1, proposed paragraph (a)(4) specified that Special 
Area recommendations should describe the size and location of the 
lands, significant resource values, and measures necessary to assure 
maximum protection of those values.
    Proposed paragraph (a)(5) allowed the authorized officer to 
implement interim measures to assure maximum protection of significant 
resource values in lands under consideration for designation as a 
Special Area. This provision was designed to assist the BLM in 
fulfilling its statutory duty to protect Special Areas.
    Paragraph (a)(6) required that the BLM base decisions to designate 
Special Areas solely on whether significant resource values are present 
and prohibited the BLM from considering the existence of measures to 
protect or otherwise administer those values. For example, if lands not 
within a Special Area contained important caribou calving habitat and 
those lands were already subject to certain protections under the IAP, 
the BLM would not be permitted to consider those protections during the 
decision-making process for the proposed designation or update. The 
proposed rule explained that this change is needed to align the 
regulations with the NPRPA, which authorizes the Secretary to designate 
Special Areas based on the presence of ``any significant subsistence, 
recreational, fish and wildlife, or historical or scenic value . . . 
.'' 42 U.S.C. 6504(a).
    Proposed paragraph (a)(7) required the BLM, when designating a 
Special Area or recognizing the presence of additional significant 
resource values in an existing Special Area, to adopt measures to 
assure maximum protection of significant resource values. That 
provision mirrors the BLM's statutory responsibility under the NPRPA. 
42 U.S.C. 6504(a). Paragraph (a)(7) was designed to provide needed 
clarification by specifying that those measures would supersede any 
inconsistent provisions in the IAP.
    Proposed paragraph (a)(8) incorporated the requirement of existing 
Sec.  2361.1(c) that the BLM publish in the Federal Register a legal 
description of any new Special Area. The proposed rule also required 
the BLM to publish in the Federal Register a summary of the significant 
resource values supporting the Special Area designation. Rather than 
requiring publication in local newspapers as the current regulations 
require, the proposed rule required the BLM to maintain maps of the 
Special Areas on its website. Those proposals were designed to provide 
more effective public notice.
    Proposed Sec.  2361.30(b) established a framework for removing 
lands from Special Area designations. Because Congress identified the 
Utukok River Uplands and Teshekpuk Lake Special Areas in the NPRPA and 
required them to be managed to protect surface resources, the BLM 
cannot remove lands from those Special Area designations absent 
statutory authorization. See Public Law 94-258, sec. 104(b), 90 Stat. 
304 (1976). For other Special Areas, the proposed rule permitted the 
BLM to remove lands from a Special Area designation only when the 
significant resource values that supported the designation are no 
longer present (e.g., if important wildlife habitat that supported the 
designation was no longer present). That provision is consistent with 
the BLM's statutory duty to ``assure the maximum protection of such 
surface values consistent with the requirements of [the NPRPA] for the 
exploration of the reserve.'' Id.
    Before removing lands from a Special Area designation, proposed 
paragraph (b) required the BLM to provide the public with the 
opportunity to review and comment on its proposed decision and consult 
with federally recognized Tribes and Alaska Native Claims Settlement 
Act corporations. Finally, the proposed rule required the BLM to 
document its consideration of those comments. Those requirements would 
assure public participation in the de-designation process.
Public Comments on Sec.  2361.30
    Comment: Commenters requested the BLM explain how new and 
additional procedural requirements would integrate with the 
environmental

[[Page 38738]]

analysis that the BLM already conducts under NEPA for proposed Federal 
actions. Commenters recommended the BLM ensure the new procedures are 
not duplicative of NEPA obligations. Commenters expressed their concern 
that if they are separate and distinct from each other, it could 
increase the number of procedural steps, time, and risk for proposed 
activities in the Reserve.
    Commenters recommended that the BLM continue to use the IAP for 
management of the Reserve including adding, revising, or removing 
Special Areas. Commenters suggested that requiring a separate 5-year 
cycle for Special Area review and evaluation may establish a different 
management framework applicable only to Special Areas which would be 
separate from the review and management of the entire Reserve through 
IAP/EIS processes.
    Commenters expressed concern that mechanisms provided in the 
proposed rule that could be used to manage lands as Special Areas could 
preclude a rigorous public process pursuant to NEPA.
    Commenters expressed concern that there is an over-reliance on 
public participation in the contraction and expansion processes 
outlined in the proposed rule, and suggested this may allow the Reserve 
to be managed by outside interest groups instead of prioritizing Native 
communities and local stakeholders.
    BLM Response: The new procedures outlined in Sec.  2361.30 are 
intended to ensure that the BLM regularly reviews the surface values 
and environmental conditions in the Reserve specifically for the 
purpose of managing Special Areas with significant subsistence, 
recreational, fish and wildlife, historical, and scenic values to 
assure their maximum protection, as directed by the NPRPA. These 
procedures will support other NEPA processes by ensuring the BLM has 
up-to-date baseline conditions for surface values within the Reserve 
and will specifically support oil- and gas-related NEPA analyses by 
ensuring necessary measures are in place to protect important 
resources. It is anticipated that the BLM will often incorporate these 
procedures into IAP revisions and amendments; however, rapidly changing 
conditions in the Arctic require that the BLM has the ability to 
conduct this review and decision-making process outside of an IAP 
process when necessary.
    The final rule has been updated from the proposed rule to ensure 
that robust public participation is a mandated component of all 
processes to designate, amend, and de-designate Special Areas. The BLM 
is required to include and consider input from all members of the 
public in making decisions governing the public lands. The BLM will 
continue to work closely with Native communities and local stakeholders 
when making decisions regarding management of the Reserve.
    Comment: Commenters expressed concern that the BLM may not have 
included a regulatory consultation obligation for expanding Special 
Areas or increasing protective measures in Special Areas.
    BLM Response: We agree with this comment that clarification on 
consultation would be helpful. We have reorganized Sec.  2361.30 in the 
final rule, with a new paragraph (a) that outlines requirements 
applicable to all processes that would designate, de-designate, or 
otherwise change boundaries or management of Special Areas. In all 
processes, including those resulting in de-designation or removal of 
lands from a Special Area, the BLM is required to provide the public 
and interested stakeholders with meaningful opportunities to 
participate in the evaluation process, and consult with any federally 
recognized Tribes and Alaska Native Claims Settlement Act corporations 
that use the affected Special Area for subsistence purposes or have 
historic, cultural, or economic ties to the Special Area.
    Comment: Commenters expressed the opinion that the requirements in 
Sec.  2361.30(a)(1) are duplicative of FLPMA section 201 and should be 
eliminated from the final rule.
    BLM Response: FLPMA section 201 requires that the BLM maintain on a 
continuing basis an inventory of all public lands and their resource 
and other values, and to keep the inventory current so as to reflect 
changes in conditions and to identify new and emerging resource and 
other values. Consistent with FLPMA and the NPRPA, proposed Sec.  
2361.30(a)(1) specifies that the BLM must maintain a current inventory 
of the significant subsistence, recreation, fish and wildlife, 
historical, and scenic values within the Reserve. This requirement is 
not duplicative of FLPMA but rather expounds on it by detailing the 
very specific public lands values that the NPRPA requires the BLM to 
evaluate and manage for protection in the Reserve.
    Comment: Commenters recommended that the process for designating 
and removing Special Areas should be identical, balanced, reasonable, 
and should include consultation and environmental analysis to support 
decision-making. Commenters recommended that Indigenous Knowledge be 
included in all Special Area designation decisions to fully capture the 
expertise about resources, such as permafrost, and to appropriately 
assess impacts to those resources.
    BLM Response: The BLM revised the final rule to create a new 
paragraph (a) that outlines requirements applicable to all processes 
that would designate, de-designate, or otherwise change boundaries or 
management of Special Areas. These requirements include relying on the 
best available scientific information, including Indigenous Knowledge, 
as well as the best available information concerning subsistence uses 
and resources within the Reserve. This new paragraph will provide more 
consistency to all decision-making processes for Special Areas.
    Comment: The BLM received multiple comments discussing the timing 
of the Special Areas review, including:
     Commenters believe that the timing of the Special Area 
review should be more frequent than the 5 years proposed to account for 
rapidly changing conditions;
     Commenters expressed support for the 5-year review 
interval;
     Commenters believe that the 5-year review is restrictive 
and unfounded in law;
     Commenters suggested including an additional mid-way 
report to help ensure agency accountability;
     Commenters requested the BLM remove the 5-year review 
requirement and allow for changes to be made when best available 
information demonstrates that such changes are necessary;
     Commenters recommended a 10-year interval for Special Area 
evaluation and suggested that the BLM conduct evaluations in the 
context of preparing a holistic IAP. Comments suggest that this would 
bring stability to managing the Reserve and help reduce the needed 
frequency for stakeholder engagement during large-scale planning 
efforts;
     Commenters expressed concern that the BLM lacks the staff 
and resources to engage in 5-year reviews;
     Commenters expressed concern that 5-year interval reviews 
would place a heavy burden on local communities and preclude or limit 
local input on the public process; and
     Commenters recommended that at every 5-year period, the 
BLM should consider removing and decreasing Special Areas, not only 
creating or expanding Special Areas.
    BLM Response: The final rule changes the review period to 10 years, 
while specifying the BLM may conduct the review sooner if the 
authorized officer

[[Page 38739]]

determines that changing conditions warrant. This requirement is 
limited to identifying additional or expanding existing Special Areas, 
additional special values, and additional protective measures in order 
to address the risks associated with changing circumstances on the 
ground, which may require additional protections. The BLM believes this 
change addresses concerns about agency and community capacity while 
ensuring regular reviews occur to maintain an inventory of resource 
conditions and make management changes as appropriate.
    The NPRPA requires the BLM to manage areas designated by the 
Secretary to have significant resource values in a manner that assures 
the maximum protection of those values consistent with exploration and 
production of the Reserve. Once those values have been identified and 
designated, they must continue to be managed for protection consistent 
with the Act. The BLM will only remove Special Area designations when 
the significant resource values are no longer present. Therefore, the 
rule does not require the BLM to regularly evaluate eliminating or 
reducing Special Area designations. The BLM will evaluate the presence 
or absence of significant resource values in existing Special Areas 
when updating the IAP, and through that process the public can provide 
information to BLM regarding the absence of significant resource values 
to inform de-designation decisions.
    Comment: Commenters requested that the proposed rule clarify that 
the BLM is required not only to identify and adopt new maximum 
protection measures during the 5-year review, but also evaluate 
existing measures and strengthen them as needed.
    BLM Response: The final rule specifies that as part of the review, 
the BLM will determine whether to require additional measures or 
strengthen existing measures to assure maximum protection of 
significant resource values within existing Special Areas.
    Comment: Commenters recommend that during the review process, the 
BLM should conduct an assessment to determine if Significant Resource 
Values continue to exist and whether maximum protection is necessary.
    BLM Response: The BLM declines this request. The public can submit 
information regarding the status of significant resource values during 
the review process, and that information would be taken into account in 
a future planning process and as applicable in decision-making as part 
of the NEPA process, i.e., if it is significant new information. The 
reason for the required regular review is to address risks associated 
with needing additional protections in light of changing circumstances 
on the ground.
    Comment: Commenters recommended the final rule state that the BLM 
will designate Special Areas in a manner that maintains the ecological 
integrity necessary to sustain such values.
    BLM Response: The BLM believes this is unnecessary because the 
final rule requires the BLM to rely on the best available scientific 
information when making management decisions for Special Areas and 
maintaining ecological integrity is consistent with adoption and 
implementation of maximum protective measures.
    Comment: Commenters recommended the BLM enable adoption of 
permanent maximum protection measures in the rule.
    BLM Response: Including permanent maximum protection measures is 
not within the regulatory framework of the rule, which establishes 
administrative processes by which the BLM will adopt and may change 
maximum protection measures for significant resource values in Special 
Areas. The overarching requirement to adopt measures for maximum 
protection of significant resource values in Special Values continues 
to apply.
    Comment: Commenters requested more explanation of the standards 
that would be used to determine a resource is significant.
    BLM Response: The BLM declines this suggestion. The definitions in 
the rule and the Special Areas identified in the NPRPA and IAP provide 
sufficient clarity for the use of this term in the rule. Ultimately, 
determinations about the significance of subsistence, recreational, 
fish and wildlife, historical, and scenic values will be at the 
discretion of the BLM. As stated in the definition of Significant 
Resource Value in the final rule, it is a surface value ``that the 
Bureau identifies as significant and supports the designation of a 
Special Area.'' This evaluation will necessarily be determined in the 
context of site-specific resources, with input from Tribes, scientific 
experts, other government agencies, and the public. Therefore, a more 
specific definition could be overly prescriptive and would not 
necessarily add more clarity.
    Comment: Commenters asked why Indigenous Knowledge is only included 
in Sec.  2361.30 and not throughout the rest of the proposed rule.
    BLM Response: Best available scientific information, including 
Indigenous Knowledge, is discussed in the context of evaluating 
resources for designation, de-designation, and management of Special 
Areas. The BLM expects Indigenous Knowledge would also be part of 
consultations, which are required throughout all aspects of the rule.
    Comment: The BLM received comments expressing the opinion that the 
NPRPA's maximum protection clause expressly applies only to Special 
Areas designated by the Secretary of the Interior and should not apply 
to areas under consideration, therefore proposed Sec.  2361.30(a)(5) 
regarding interim measures exceeds the BLM's statutory authority. Other 
commenters expressed the opinion that Sec.  2361.30(a)(5) conflicts 
with FLPMA section 201. Commenters also generally recommended that 
Sec.  2361.30(a)(5) be eliminated because areas shouldn't be managed as 
Special Areas until they are designated as such.
    Commenters requested more clarity around the process for 
implementing interim measures in lands under consideration for 
designation as a Special Area.
    BLM Response: The NPRPA provides the BLM with the direction and 
authority to provide for such conditions, restrictions, and 
prohibitions as deemed necessary or appropriate to mitigate reasonably 
foreseeable and significantly adverse effects on the surface resources 
of the Reserve. These conditions, restrictions, and prohibitions may 
include interim measures to protect surface resources within Special 
Areas under consideration for designation.
    The option for the authorized officer to apply interim measures is 
not inconsistent with the requirement of 42 U.S.C. 6504 to ensure 
maximum protection of significant resource values to the extent 
consistent with the requirements of the NPRPA. Rather, this discretion 
supports the BLM's ability to fulfill this obligation as part of a 
formal designation of a new Special Area while ensuring any interim 
management is consistent with both the requirements of the NPRPA and 
the specific provisions of the current IAP.
    The BLM revised the final rule to provide more clarity and 
certainty around the interim measures provision. The final rule 
clarifies that interim measures may be implemented at any time after 
the BLM receives an internal or external recommendation to designate or 
modify a Special Area. The final rule also clarifies that any interim 
measures must be consistent with the governing management prescriptions 
in the IAP, and the BLM is required to provide public notice that 
interim measures are in place and reassess such measures to determine 
if they are still

[[Page 38740]]

needed if they remain in place for more than 5 years.
    Comment: Commenters expressed the opinion that the requirement in 
Sec.  2361.30(a)(6) to designate Special Areas solely on the basis of 
the presence of significant resource values is an improper 
interpretation of 42 U.S.C. 6504. Commenters also recommended the BLM 
should consider effectiveness of mitigation measures and other 
management when determining whether to designate Special Areas and 
suggested that if the values can be managed with existing measures, 
then a Special Area may not be required.
    Other commenters supported the recognition that Special Area 
designations and expansions be based solely on the presence of 
significant resource values without regard to the administration of 
measures to protect the values.
    BLM Response: The NPRPA provides for the Secretary to designate 
Special Areas that contain significant subsistence, recreational, fish 
and wildlife, or historical or scenic values, and requires the 
Secretary to assure the maximum protection of those values when 
authorizing oil and gas activities, to the extent consistent with the 
requirements of the Act. The NPRPA does not place contingencies on 
either of those directives, such as considering other management 
decisions in place that may affect the risk to the resources or the 
likely effectiveness of mitigation measures to address the impacts of 
oil and gas activities. Furthermore, management decisions may change 
over time, and so relying on current overlapping management is not 
adequate to ensure appropriate protection for significant resource 
values. Therefore, the BLM believes the most appropriate way to fulfill 
the congressional directives set forth in the NPRPA is to designate 
Special Areas where the identified significant resource values exist 
regardless of other management that may be in place, and to implement 
maximum protection measures that specifically target those resource 
values.
    Comment: Commenters recommended that the rule should require that 
Special Areas and areas under consideration for Special Area 
designation be closed to oil and gas leasing.
    BLM Response: Management decisions for Special Areas, including oil 
and gas allocations, are made through the IAP process and/or the 
separate Special Area designation process described in the rule. These 
regulations implement the NPRPA, which requires the BLM to provide 
maximum protection for significant surface values in Special Areas in 
the context of conducting an oil and gas leasing and production program 
in the Reserve. The rule incorporates this directive through a 
presumption that leasing and production in Special Areas will not be 
consistent with this standard, while also ensuring consistency with the 
requirements of the NPRPA and valid existing rights.
    Comment: Commenters expressed the opinion that the BLM is not 
prohibited from removing lands from Teshekpuk Lake and Utukok River 
Uplands because the NPRPA does not specify a geographic boundary for 
these areas nor does it make these current designations permanent.
    BLM Response: Section 104(b) of the NPRPA (42 U.S.C. 6504) 
identifies the Utukok River and Teshekpuk Lake areas as special areas 
containing significant subsistence, recreational, fish and wildlife, or 
historical or scenic values that are subject to the ``maximum 
protection'' standard. Congress specifically identified these two 
Special Areas by naming them in the NPRPA. The BLM does not believe it 
has the authority to de-designate some or all of the Special Area 
designations for Teshekpuk Lake and Utukok River Uplands that were 
explicitly included in the NPRPA, because Congress has expressly 
directed that the BLM apply the maximum protection standard in those 
areas.
    Comment: Commenters recommended that the BLM not allow for land to 
be removed from Special Areas where wildlife habitat values are no 
longer present because the land is no longer inhabitable by the species 
or because species populations are declining. Commenters suggested that 
the BLM should not allow for further development and degradation of the 
land in those circumstances.
    BLM Response: This issue is best addressed in the Special Area 
amendment process, because it is dependent on site-specific 
circumstances. The regulations are designed to implement the NPRPA, 
which directs the BLM to designate and manage Special Areas to provide 
maximum protection for significant resource values. While the rule 
provides that an authorized officer may only remove areas from Special 
Area designation if the significant resource values are no longer 
present, any such decision would be conducted through site-specific 
processes, with opportunity for public input and consultation regarding 
the appropriate decisions on types of habitats and desired future 
conditions.
    Comment: Commenters requested more clarity regarding the process by 
which a resource value will be determined to be sufficiently absent to 
warrant de-designation of a Special Area.
    Commenters recommended that the rule should require the BLM to use 
the best scientific data available when determining whether the 
significant resource values that support the designation are no longer 
present.
    BLM Response: The BLM revised the final rule to create a new 
paragraph (a) that outlines requirements applicable to all processes 
that will designate, de-designate, or otherwise change boundaries or 
management of Special Areas. In all processes, including those 
resulting in de-designation or removal of lands from a Special Area, 
the BLM is required to rely on the best available scientific 
information, including Indigenous Knowledge, as well as the best 
available information concerning subsistence uses and resources within 
the Reserve. The BLM must also provide the public and interested 
stakeholders with notice of, and meaningful opportunities to 
participate in, the evaluation process, and consult with any federally 
recognized Tribes and Alaska Native Claims Settlement Act corporations 
that use the affected Special Area for subsistence purposes or have 
historic, cultural, or economic ties to the Special Area. These 
requirements will ensure opportunities for public and Tribal input and 
participation in any evaluation of whether all of the significant 
resource values that support a Special Area designation are no longer 
present.
    Comment: Commenters suggested establishing an overlay of Indigenous 
Ancestral Homeland Preservation Special Areas within the NPR-A to 
protect significant subsistence values.
    BLM Response: The BLM would appreciate this information being 
provided as part of decisions on managing surface values in the 
Reserve. Specifying this overlay is beyond the current scope of the 
regulation.
    Comment: Commenters expressed concerns that the proposed rule does 
not quantify the economic impacts of the process of designating new 
Special Areas nor the economic impacts of limitations on exploration 
and development within Special Areas and recommended that an economic 
impact analysis should accompany each decision.
    BLM Response: The NPRPA requires the maximum protection of 
significant resources values in Special Areas subject to the 
requirements of the Act. Economic impacts are part of NEPA

[[Page 38741]]

analysis and will be disclosed as part of any such analysis.
    Comment: Commenters requested clarity that Special Area designation 
will not interfere with the ANILCA section 1111(a) temporary access 
provisions.
    BLM Response: Section 1111(a) of ANILCA requires the Secretary to 
authorize and permit temporary access by the State or a private 
landowner to or across certain lands in Alaska that have been 
designated to specific uses, including the Reserve, but only if such 
access will not result in permanent harm to the resources of such unit, 
area, Reserve or lands. This rule is consistent with that provision of 
ANILCA and would not alter the BLM's implementation.
Description of the Final Rule
    Section 2361.30 is reorganized in the final rule, with a new 
paragraph (a) that outlines requirements applicable to all processes 
that will designate, de-designate, or otherwise change boundaries or 
management of Special Areas. In all processes, including those 
resulting in de-designation or removal of lands from a Special Area, 
the BLM is required to rely on the best available scientific 
information, including Indigenous Knowledge, as well as the best 
available information concerning subsistence uses and resources within 
the Reserve. The BLM must provide the public and interested 
stakeholders with meaningful opportunities to participate in the 
evaluation process and consult with any federally recognized Tribes and 
Alaska Native Claims Settlement Act corporations that use the affected 
Special Area for subsistence purposes or have historic, cultural, or 
economic ties to the Special Area. The BLM must also base decisions 
solely on the presence or absence of significant resource values and 
not the existence of measures that have been or may be adopted to 
protect or otherwise administer those values.
    Section 2361.30(b) requires the BLM to evaluate all public lands 
within the Reserve for the presence of significant subsistence, 
recreational, fish and wildlife, historical, or scenic values every 10 
years, or sooner if the authorized officer determines that changing 
conditions warrant. As part of this evaluation, the BLM will consider 
designating new Special Areas, expanding existing Special Areas, 
recognizing the presence of additional significant resource values in 
existing Special Areas, and requiring additional measures or 
strengthening existing measures to assure maximum protection of 
significant resource values within existing Special Areas. The 
evaluation may occur through an IAP amendment process but can occur 
separately.
    The BLM is required to consider and respond to recommendations from 
the public and interested stakeholders in the evaluation process 
regarding lands that should be considered for designation as a Special 
Area, significant resource values that should be recognized in Special 
Areas, and measures that should be required to assure maximum 
protection of significant resource values within Special Areas. The 
rule lists information that should be submitted by the public to ensure 
the BLM can adequately review recommendations, including the size and 
location of the recommended lands, significant resource values that are 
present within or supported by the recommended lands, and measures that 
may be necessary to assure maximum protection of those values.
    Section 2361.30(b)(4) provides that the BLM may implement interim 
measures to protect significant resource values while the agency is 
considering Special Area designations and changes to management. The 
BLM could implement interim measures at any point after receiving a 
recommendation for a new or modified Special Area. These measures must 
be consistent with the governing management prescriptions in the IAP. 
The BLM must provide public notice that interim measures are in place 
and such measures will be reassessed to determine if they are still 
needed if they remain in place for more than 5 years.
    When the BLM decides to designate lands as a Special Area or 
recognizes the presence of additional significant resource values in a 
Special Area, the BLM must adopt measures to assure maximum protection 
of the significant resource values. These measures are not constrained 
by the provisions of the current IAP. Once adopted, these measures 
supersede inconsistent provisions of the IAP then in effect for the 
Reserve and will be incorporated into the IAP during the next revision 
or amendment. When the BLM designates lands as a Special Area, the 
agency must publish a legal description of those lands in the Federal 
Register, along with a concise summary of the significant resource 
values that support the designation. The BLM will maintain up-to-date 
maps of all designated Special Areas on its website and make maps 
available for public inspection at the Arctic District Office.
    Section 2361.30(c) provides procedures for removing lands from or 
de-designating a Special Area. Lands may only be removed from Special 
Area designation when all of the significant resource values that 
support the designation are no longer present. In making such a 
determination, the BLM must prepare a summary of its proposed 
determination, including the underlying factual findings, and provide a 
public comment opportunity on the proposed determination. The BLM must 
also comply with all of the requirements in Sec.  2361.30(a). The BLM's 
final determination must document how the views and information 
provided by the public, federally recognized Tribes, Alaska Native 
Claims Settlement Act corporations, federally qualified subsistence 
users, and other interested stakeholders have been considered. The BLM 
may not remove lands from the Teshekpuk Lake and Utukok River Uplands 
Special Areas unless directed to do so by statute.

Section 2361.40--Management of Oil and Gas Activities in Special Areas

Existing and Proposed Regulations
    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 Sec.  
2361.1(c). Proposed new Sec.  2361.40 enhanced the specificity of the 
current regulations on the mechanisms for assuring maximum protection 
of significant resource values in Special Areas by establishing 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 
affirmatively established that assuring maximum protection of 
significant resource values is the management priority for Special 
Areas. Under proposed paragraph (a), the BLM needed to comply with this 
standard and adopt maximum protection measures for each significant 
resource value associated with a Special Area. Proposed paragraph (b) 
required 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.
    Proposed paragraph (c) required 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, unless the BLM makes 
revisions in accordance with Sec.  2361.30 of these regulations. Map 2 
shows the areas of the Reserve that are open and closed to oil and gas 
leasing. The map reflects that approximately 11.8 million acres are

[[Page 38742]]

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 Reserve that are available and 
unavailable for new infrastructure. The map shows that new 
infrastructure is prohibited on approximately 8.3 million acres of the 
Reserve, limited to ``essential'' infrastructure on approximately 3.3 
million acres, and permitted on approximately 10.8 million acres.
    The proposed purpose of requiring leasing and infrastructure in 
Special Areas to conform to IAP maps 2 and 4 was to codify the existing 
protections and restrictions from the 2022 IAP ROD. 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 Reserve. It also reflects what the BLM views as the floor of 
protections for the Reserve that grew out of the public planning 
process. By incorporating the two maps into the rule, the BLM intended 
to incorporate the land use allocations, restrictions, and stipulations 
from the 2022 IAP ROD into the rule without reprinting lengthy text.
    Proposed paragraph (c) also established a presumption against 
leasing and new infrastructure on lands in Special Areas that are 
allocated as available for those activities. That presumption could 
have been 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 Reserve. 
To fulfill the BLM's statutory duty to assure maximum protection for 
those areas' significant resource values, the BLM believed that plan 
should be treated as a regulatory floor, and additional activities 
should only be allowed when maximum protection is assured.
    The proposed definition of ``infrastructure'' in Sec.  2361.5(g) 
excluded ``exploratory wells that are drilled in a single season; 
infrastructure in support of science and public safety; and 
construction, renovation, or replacement of facilities on existing 
gravel pads at previously disturbed sites where the facilities will 
promote safety and environmental protection.'' These exceptions were 
specifically analyzed and adopted in the 2022 IAP ROD. Proposed Sec.  
2361.40(d) established three additional exceptions to the oil and gas 
leasing and new infrastructure prohibitions in paragraph (c). The first 
exception permitted 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, Drainage Protection Manual 1-1 
(2015), available at https://www.blm.gov/sites/blm.gov/files/uploads/mediacenter_blmpolicymanual3160.pdf. The proposed rule prohibited 
surface disturbing activities on any lease tract issued for this 
purpose. The exception for drainage of Federal oil and gas resources 
was 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 permitted the construction 
of new infrastructure, including roads, transmission lines, and 
pipelines, that would primarily benefit communities in and around the 
Reserve or would support subsistence activities. The BLM proposed to 
include that exception because communities in and around the Reserve 
must have some infrastructure to survive and thrive. The third 
exception allowed 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 was 
necessary to accommodate the rights of current leaseholders.
    Proposed paragraph (e) required 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 was drafted to help the BLM fulfill its statutory mandate to 
assure maximum protection for Special Areas' significant resource 
values.
    Proposed paragraph (f) required the BLM to prepare a Statement of 
Adverse Effect whenever it cannot avoid adverse effects on a Special 
Area. In each statement, the BLM was required 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. Measures the BLM could require under this 
provision include compensatory mitigation. Such measures would be 
developed, evaluated, and, as necessary, adopted in project-specific 
analyses. Proposed paragraphs (g) and (h) required 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) required 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 ensured that the BLM 
incorporates into decision documents the necessary language to 
implement any final rule.
Public Comments on Sec.  2361.40
    Comment: The BLM received comments generally supporting Sec.  
2361.40, particularly for reasons of reducing climate change and 
protecting areas that are important for wildlife habitat and 
subsistence use.
    BLM Response: We agree the rule will help the BLM address these 
important issues.
    Comment: Commenters stated that maximum protection in the proposed 
rule is being used as a management standard and a baseline to 
disqualify any resource development activity from proceeding contrary 
to congressional intent and the NPRPA.
    BLM Response: The NPRPA specifically requires that oil and gas 
activities within Special Areas 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.'' The regulation is 
implementing this direction from Congress to balance resource 
development with resource protection, by requiring the application

[[Page 38743]]

of maximum protection measures to significant resource values in 
Special Areas when conducting oil and gas activities. The regulations 
will not prohibit oil and gas activities but rather ensure they proceed 
according to the intent of the NPRPA.
    Comment: Commenters requested the rule clarify the process for 
identifying and adopting maximum protection measures for each 
significant resource value that is present in a Special Area. 
Commenters also recommended that the BLM be required to evaluate 
existing measures in addition to identifying new ones, and that this 
process rely on best available scientific information including 
Indigenous Knowledge.
    Commenters requested the BLM discuss significant resource values 
and include clear definitions of the measures necessary to ensure 
maximum protection for each. Comments contained suggestions that the 
denial or reduction of proposed drilling sites, prohibition of roads, 
restrictions on sand and gravel extraction and water withdrawals, 
suspension of activities, and specified rates of development and 
production should be specifically listed as potential maximum 
protection measures.
    BLM Response: The final rule clarifies that the BLM will identify 
and adopt maximum protection measures for each significant resource 
value that is present in a Special Area when Special Areas are 
designated. The BLM will also update maximum protection measures as 
appropriate thereafter, including in the IAP, lease terms, and permits 
to conduct oil and gas activities. The final rule also includes maximum 
protection measures that are identified in the existing regulation but 
had been eliminated in the proposed rule, as well as some additional 
categories of measures that may be included, such as limiting 
infrastructure and use of roads and restricting use of sand, gravel, 
and water. The BLM is not analyzing existing measures or adopting new 
ones for significant resource values in this rulemaking process. The 
rule provides informative categories of measures that could be applied, 
subject to existing management prescriptions for each Special Area and 
the terms of existing leases, and sets forth the process by which 
measures will be adopted moving forward.
    Comment: Commenters expressed concern that the presumption against 
leasing and new infrastructure on lands within Special Areas that are 
allocated as open for those activities would affect valid existing 
rights and could constitute a breach of contract or regulatory taking. 
Commenters recommended that the rule be revised to expressly state that 
it does not apply to any existing leases or future activities carried 
out pursuant to the terms of those leases.
    Commenters suggested that the presumption against new leasing and 
new infrastructure on lands within Special Areas that are allocated as 
open to those activities is contrary to the NPRPA and ANILCA section 
1326.
    BLM Response: The provisions of this section are consistent with 
the BLM's obligations to manage Special Areas to provide maximum 
protection for significant resource values, subject to the other 
directives in the NPRPA regarding conducting exploration, leasing, and 
development. The rule includes specific protections for valid existing 
rights. At the same time, we note that, while the terms of an existing 
lease and approved development project or permit would not be affected 
by the rule, a valid lease does not entitle the leaseholder the 
unfettered right to drill wherever it chooses or categorically preclude 
the BLM from considering alternative development scenarios within 
leased areas, nor does it give the leaseholder the right to produce all 
economically recoverable oil and gas on the lease. Future development 
of an existing lease is, by its terms, subject to additional terms and 
conditions. For example, the standard lease for activities in the 
Reserve states, ``An oil and gas lease does not in itself authorize any 
on-the-ground activity'' and notes that more restrictive stipulations 
may be added. Similarly, a standard lease stipulation entitled 
``Conservation of Surface Values for NPR-A Planning Area Land'' 
provides: ``Operational procedures designed to protect resource values 
will be developed during Surface Use Plan preparation, and additional 
protective measures may be required beyond the general and special 
stipulations identified in the above-referenced documents.''
    Comment: Commenters recommended Sec.  2361.40(c) be revised to 
eliminate the phrase ``or minimal'' so that the presumption would only 
be overcome if it can be demonstrated that there will be no adverse 
effects on significant resource values.
    BLM Response: The BLM included the term ``minimal'' to address 
situations where it is not possible to eliminate all adverse effects, 
and in recognition of the NPRPA's direction to apply the maximum 
protection standard consistent with exploration and production of the 
Reserve. However, the remainder of the process set out in this updated 
section will ensure thorough consideration, opportunity for review and 
comments, and documentation of how adverse effects have been avoided.
    Comment: Commenters recommended the BLM provide a path for an 
applicant to overcome the presumption against new leasing and new 
infrastructure on lands within Special Areas that are allocated as open 
for those activities, such as requiring the applicant to explain why it 
cannot avoid locating new infrastructure in the Special Area and to 
provide maximum protection for resource values and subsistence users.
    BLM Response: The final rule provides clarity around how the 
presumption against new leasing and new infrastructure on lands within 
Special Areas that are allocated as open for those activities would be 
overcome through the environmental review process. The rule provides 
that as part of the environmental analysis, the BLM may document 
justification for overcoming the presumption in Sec.  2361.40(f), such 
as if the proposed infrastructure is necessary to comport with the 
terms of a valid existing lease, or if it will primarily be used by and 
provide a benefit to communities located within or in close proximity 
to the Reserve, and the proposal has been conditioned to avoid, 
minimize, or otherwise mitigate adverse effects.
    Comment: Commenters recommended that Sec.  2361.40(d)(1) be revised 
to clarify that seismic exploration is considered a ``surface-
disturbing oil and gas activit[y]'' and that restrictions on new 
infrastructure would not be waived under this provision.
    BLM Response: This rule maintains the current approach in the IAP 
that does not include geophysical exploration as surface occupancy to 
maintain consistency and because any changes to that approach should be 
made through the IAP process with associated NEPA analysis. This rule 
does not address waiver of limitations on infrastructure. However, as 
discussed above, waivers, exceptions, and modifications are subject to 
the conditions set out in the IAP.
    Comment: Commenters recommended that the community infrastructure 
exception be clarified that it only applies if it has community benefit 
and is owned, operated, or managed by the appropriate community or 
Native entity, the North Slope Borough, of the State of Alaska.
    BLM Response: The definition of the term ``infrastructure'' in the 
final rule has been revised to state that ``infrastructure'' does not 
include infrastructure that will primarily be used by and provide a 
benefit to communities located within or in close proximity to the 
Reserve.

[[Page 38744]]

    Comment: Commenters urged the BLM to provide greater limits on 
``essential infrastructure'' such as allowing permanent infrastructure 
if it can occur with no adverse impacts on significant resource values, 
rather than if no practicable alternatives exist that would have less 
adverse impact.
    The BLM received comments stating that limiting infrastructure to 
that which is essential and for which no practicable alternatives exist 
would establish an implied presumption that no infrastructure can be 
installed in Special Areas, which violates the NPRPA and the terms of 
existing leases.
    BLM Response: The BLM is not revising the approach to addressing 
infrastructure, which is consistent with the provisions of the IAP and 
the directive in the NPRPA to provide for maximum protection of 
significant resource values in Special Areas subject to the other 
purposes of the Act.
    Comment: Commenters recommended that the final rule adopt a 
requirement based on precautionary principles in instances of 
significant uncertainty, which may mean requiring additional 
information from applicants or lessees or delaying action until 
relevant effects are better known.
    BLM Response: The BLM believes the language in the rule is adequate 
for the agency to address uncertainty. The final rule requires the BLM 
to document and consider uncertainty concerning potential adverse 
effects on significant resource values of Special Areas and ensure that 
uncertainty is accounted for when taking actions to avoid, minimize, or 
mitigate adverse effects. The BLM has the authority under the 
regulations to delay action on activities where necessary to avoid 
adverse effects on significant resource values.
    Comment: The BLM received comments about the requirement to 
mitigate residual effects that cannot be avoided or minimized, 
including:
     Commenters recommended the rule include provisions that 
authorize the BLM to review and modify mitigation measures as needed 
after oil and gas operations have commenced.
     Commenters suggested that the BLM lacks statutory 
authority to require compensatory mitigation, and none is provided in 
the NPRPA, FLPMA, or ANILCA.
     Commenters expressed concern that despite BLM mitigation 
and environmental review efforts, impacts to Nuiqsut from oil and gas 
activities have gotten worse. Commenters state that the current 
mitigation process requires stakeholders to advocate for mitigation 
measures, which places an unfair burden on the stakeholder, including 
Native villages. Commenters recommend the BLM include a regular process 
for identifying new mitigation measures and updating existing 
mitigation measures similar to the process for evaluating Special Areas 
in the proposed rule. Commenters also recommended that the rule include 
a requirement for establishing baseline data and monitoring of impacts.
    BLM Response: The BLM has authority to require appropriate 
mitigation under a variety of authorities, including the NPRPA and 
FLPMA. Mitigation measures can continue to be regularly identified and 
updated through IAP and/or Special Area amendment processes and are 
also identified at the leasing and permitting stages of development. 
Similarly, baseline data and monitoring plans are established in NEPA 
analyses conducted to support amendments or revisions to the IAP and 
approval of other activities in the Reserve.
    Comment: The BLM received comments regarding reclamation and 
bonding for oil and gas activities, including: the rule should include 
assessment methods to gauge the financial stability of oil and gas 
companies and bankruptcy risk before companies are allowed to purchase 
leases; the rule should require up-front payments to cover costs of 
damages due to climate change, loss of habitat, spills or accidents, 
and reclaiming development sites; and the rule should require all 
development activities to have comprehensive plans for reclamation and 
remediation.
    Commenters requested that the proposed rule revise leasing program 
operations regarding water withdrawal to address the concern that lake 
water withdrawals for ice roads are leading to low stream water levels.
    BLM Response: The BLM's oil and gas leasing program for the Reserve 
is governed by regulations at 43 CFR part 3130, which are not being 
revised in this rule, and additional aspects of operations are 
addressed in the current IAP. Impacts from water withdrawals for ice 
roads would be addressed as part of the analysis to permit construction 
of ice roads.
    Comment: Commenters recommended that traditional transportation 
corridors be considered in the rule and requested clarity on how the 
proposed rule might affect local community winter access to trail 
rights-of-way.
    BLM Response: The rule would not affect traditional transportation 
corridors or local community access. The BLM has clarified the 
definition of infrastructure to limit it to oil and gas activities and 
to include an exception for community access and projects. In addition, 
the rule requires consideration of impacts on community access in the 
development of management measures to protect surface resources.
    Comment: Commenters proposed adding a legal mandate that allows the 
BLM to refrain from authorizing new leases in the Reserve if the U.S. 
is projected to meet its energy needs as the NPRPA's mandate to meet 
the energy needs of the nation is being fulfilled by other sources.
    BLM Response: This comment is not within the regulatory framework 
of the rule, which is focused on protecting surface resources in the 
Reserve as the BLM carries out its oil and gas program. This regulation 
is not revising 43 CFR part 3130, which are the regulations governing 
the oil and gas program for the Reserve.
    Comment: The BLM received comments regarding the proposal to 
include two of the 2022 IAP maps in the rule and require that oil and 
gas leasing and authorization of new infrastructure in Special Areas 
will conform to those maps. Comments and responses follow.
     Commenters expressed concern that the maps do not provide 
sufficient information to the public to identify and protect 
significant resource values, and maps can be misinterpreted. The BLM 
updated the maps for the final rule by adding the boundaries of the 
existing Special Areas to the maps from the 2022 IAP that show the 
current allocations for oil and gas leasing and infrastructure. We 
believe this addresses concerns that the maps contained in the IAP do 
not provide sufficient information to identify significant resource 
values. The maps included with this final rule depict the exact data 
from the IAP ROD, and do not change any designations or allocations 
from the 2022 IAP. The BLM believes including maps with the final rule 
will assist with public understanding of and agency implementation of 
the regulations, and we do not believe that benefit is outweighed by 
potential misinterpretation of maps.
     Commenters requested clarity on whether reliance on the 
maps means the ability to waive, except, and modify the stipulations 
otherwise applicable under the IAP would still apply. Inclusion of the 
maps in the final rule does not change the criteria for waivers, 
exceptions, and modifications adopted in the IAP.
     Commenters noted that maps 2 and 4 do not include the 
boundaries of the Special Areas themselves and therefore do not provide 
sufficient information. Commenters recommended that the BLM produce a 
map that shows the

[[Page 38745]]

Special Areas along with the land allocations and restrictions. We 
agree with this comment. The BLM updated the maps for the final rule by 
adding the boundaries of the existing Special Areas to the maps from 
the 2022 IAP that show the current allocations for oil and gas leasing 
and infrastructure. The maps depict the exact data from the IAP ROD, 
and do not change any designations or allocations from the 2022 IAP.
     Commenters requested clarity on whether the land use 
allocations and restrictions in the IAP maps are being considered as 
maximum protection measures. The allocations and restrictions in the 
2022 IAP maps may be considered maximum protection measures, but they 
do not necessarily represent the full extent of maximum protection 
measures that may ultimately be required as a result of this rule. The 
final rule, in Sec.  2361.30(b)(5), requires the BLM to adopt measures 
to assure maximum protection of significant resource values when 
designating lands as Special Areas or recognizing the presence of 
additional significant resource values in existing Special Areas. Once 
adopted, these measures become part of and supersede inconsistent 
provisions of the IAP then in effect for the Reserve. The final rule, 
in Sec.  2361.40(b), also directs the BLM to update maximum protection 
measures as appropriate thereafter, including in the IAP, lease terms, 
and other approvals to conduct oil and gas activities.
     Commenters requested clarification on why K-4 areas, such 
as lagoons, inlets, and associated islands, that are otherwise 
unavailable for new infrastructure, allow essential pipeline crossings. 
The IAP decision to allow for essential pipeline crossings in these 
areas was to ensure that the prohibition on new infrastructure did not 
completely block development on neighboring Outer Continental Shelf or 
State Lands. The BLM is not reevaluating IAP decisions as part of this 
rulemaking process.
     Commenters stated that the Colville River Special Area is 
much larger than the land use allocations and restricted areas depicted 
on the maps, and it is not apparent from the proposed rule what maximum 
protections measures are needed in addition to those depicted on maps 2 
and 4 to adequately protect the entire Special Area. Commenters are 
correct that there are additional protection measures for the Colville 
River Special Area which are in the Colville River Special Area 
management plan, which is a separate document from the IAP. The BLM is 
not adopting or changing management of Special Areas through this 
rulemaking process. Additional maximum protection measures that may be 
needed for the Colville River Special Area would be considered and 
adopted through a Special Area planning process, and/or through a 
project-level NEPA process for proposed development in the Colville 
River Special Area.
     Commenters requested that the BLM update the maps to show 
the level of activities and infrastructure currently in place in the 
NPR-A. Commenters also suggested that the maps be updated to explain 
why essential pipeline corridors, which were suggested in the 2020 IAP, 
are not available. Commenters further recommended the maps be updated 
to state that the BLM welcomes public participation to designate or 
expand Special Areas. The BLM declined to change the maps by showing 
existing levels of activities and infrastructure, discuss essential 
pipeline corridors, or state that public participation is welcome in 
Special Area designation decisions because those data are not germane 
to decisions made in the rule. The BLM's intention with providing maps 
is to display and help the public understand decisions codified in the 
rule, which include existing Special Area designations and leasing and 
infrastructure allocations adopted in the 2022 IAP. The rule does not 
make decisions regarding existing infrastructure, essential pipeline 
corridors, or future Special Area designation decisions.
Description of the Final Rule
    Section 2361.40 affirms that the management priority within Special 
Areas is to assure maximum protection of significant resource values, 
consistent with the requirements of the NPRPA for exploration and 
production of the Reserve. The section sets forth procedures for 
fulfilling this duty at each stage in the decision-making process for 
oil and gas activities in the Reserve.
    Section 2361.40(a) requires that the BLM must, to the extent 
consistent with the NPRPA, take such steps as are necessary to avoid 
the adverse effects of proposed oil and gas activities on significant 
resource values in Special Areas. Such steps may include conditioning, 
delaying action on, or denying proposals for activities.
    Section 2361.40(b) directs the BLM to identify and adopt maximum 
protection measures for each significant resource value that is present 
in a Special Area when Special Areas are designated, and to update 
maximum protection measures as appropriate thereafter, including in the 
IAP, lease terms, and permits to conduct oil and gas activities. 
Section 2361.40(c) specifies examples of maximum protection measures, 
including rescheduling activities and use of alternative routes; 
limiting new infrastructure and roads; limiting extraction of sand and 
gravel or withdrawal of water; limiting types of vehicles and loadings; 
limiting types of aircraft in combination with minimum flight altitudes 
and distances from identified places; and applying special fuel 
handling procedures.
    Section 2361.40(c) provides that oil and gas leasing and 
authorization of new infrastructure in Special Areas must conform to 
the land use allocations and restrictions identified on the map 
published with the final rule, until and unless those allocations are 
revised by a Special Area designation, amendment, or de-designation 
process as set forth in Sec.  2361.30. The map shows Special Area 
designations and oil and gas leasing and new infrastructure allocations 
adopted in the 2022 IAP. The BLM produced one consolidated map for the 
final rule that includes multiple data included in the 2022 IAP maps 
but did not change any of the designations or allocations depicted on 
the 2022 IAP maps.
    The map reflects that approximately 11.8 million acres of the 
Reserve 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 shows that new infrastructure is prohibited on 
approximately 8.3 million acres of the Reserve, limited to 
``essential'' infrastructure on approximately 3.3 million acres, and 
permitted on approximately 10.8 million acres.
    The restrictions identified on the map that would apply to new oil 
and gas leases and infrastructure are detailed in the 2022 IAP ROD and 
summarized in the following table.

[[Page 38746]]



------------------------------------------------------------------------
         Stipulation                           Objective
------------------------------------------------------------------------
K-1--River Setbacks..........  Minimize the disruption of natural flow
                                patterns and changes to water quality;
                                the loss of spawning, rearing, and over-
                                wintering habitat for fish; and impacts
                                to subsistence cabins and campsites,
                                among other purposes.
K-2--Deep Water Lakes........  Minimize the disruption of natural flow
                                patterns and changes to water quality;
                                the loss of spawning, rearing or over-
                                wintering habitat for fish; and the
                                disruption of subsistence activities,
                                among other purposes.
K-4--Kogru River, Dease        Protect fish and wildlife habitat;
 Inlet, Admiralty Bay, Elson    preserve air and water quality; and
 Lagoon, Peard Bay,             minimize impacts to subsistence
 Wainwright Inlet/Kuk River,    activities and historic travel routes on
 and Kasegaluk Lagoon, and      the major coastal waterbodies.
 their associated islands.
K-5--Coastal Setback Areas...  Protect coastal waters and their value as
                                fish and wildlife habitat; minimize
                                hindrance or alteration of caribou
                                movement within caribou coastal insect-
                                relief areas; and prevent impacts to
                                subsistence resources and activities,
                                among other purposes.
K-6--Goose Molting Area......  Minimize disturbance to molting geese and
                                loss of goose molting habitat in and
                                around lakes in the Goose Molting Area.
K-8--Brant Survey Area.......  Minimize the loss or alteration of
                                habitat for, or disturbance of, nesting
                                and brood rearing brant in the Brant
                                Survey Area.
K-9--Teshekpuk Lake Caribou    Minimize disturbance and hindrance of
 Habitat Area.                  caribou, or alteration of caribou
                                movements through portions of the
                                Teshekpuk Lake Caribou Habitat Area that
                                are essential for all-season use,
                                including calving and rearing, insect-
                                relief, and migration.
K-10--Teshekpuk Lake Caribou   Minimize disturbance and hindrance of
 Movement Corridor.             caribou, or alteration of caribou
                                movements (that are essential for all-
                                season use, including calving and
                                rearing, insect-relief, and migration)
                                in the area extending from the eastern
                                shore of Teshekpuk Lake eastward to the
                                Kogru River.
K-11--Southern Caribou         Minimize disturbance and hindrance of
 Calving Area.                  caribou, or alteration of caribou
                                movements (that are essential for all-
                                season use, including calving and post
                                calving, and insect-relief) in the area
                                south/southeast of Teshekpuk Lake.
K-12--Colville River Special   Prevent or minimize loss of raptor
 Area.                          foraging habitat.
K-13--Pik Dunes..............  Retain unique qualities of the Pik Dunes,
                                including geologic and scenic
                                uniqueness, insect-relief habitat for
                                caribou, and habitat for several
                                uncommon plant species.
K-14--Utukok River Uplands     Minimize disturbance and hindrance of
 Special Area.                  caribou, or alteration of caribou
                                movements through the Utukok River
                                Uplands Special Area that are essential
                                for all-season use, including calving
                                and rearing, insect-relief, and
                                migration.
------------------------------------------------------------------------

    Section 2361.40(e) provides for limited circumstances in which 
certain uses may be authorized on lands within Special Areas that are 
allocated as closed to leasing or unavailable to new infrastructure. 
The BLM may issue oil and gas leases in areas closed to leasing if 
drainage is occurring. The BLM may authorize new roads, pipelines, 
transmission lines, and other types of infrastructure in unavailable 
areas if the infrastructure will primarily be used by and provide a 
benefit to local communities or will support subsistence activities. In 
those cases, the BLM must adopt measures to assure maximum protection 
of significant resource values. These measures, which are required by 
the NPRPA, would be specific to oil and gas activities and would be 
designed to limit potential impacts on subsistence use. Consistent with 
this approach, the BLM revised Sec.  2361.50 to make clear that the BLM 
will ensure reasonable access to and within Special Areas for 
subsistence uses. The BLM may authorize new permanent infrastructure 
related to existing oil and gas leases in unavailable areas only if 
such infrastructure is necessary to comport with the terms of a valid 
existing lease.
    Section 2361.40(f) directs that on lands within Special Areas that 
are allocated as available for future oil and gas leasing or new 
infrastructure, the BLM will presume that proposed oil and gas 
activities should not be permitted unless it can be clearly 
demonstrated that those activities can be conducted with no or minimal 
adverse effects on significant resource values, or unless they are 
necessary to comport with the terms of a valid existing lease. This 
provision only applies to designated Special Areas within the Reserve, 
and implements the obligation placed on the BLM by the NPRPA to assure 
the maximum protection of surface values to the extent consistent with 
the requirements of the Act. The presumption is based on the BLM's 
experience managing oil and gas exploration and development in the 
Reserve that all permitted oil and gas activities within a Special Area 
will result in significant adverse impacts to surface resources. 
Therefore, absent the need to honor the terms of a valid existing lease 
or a demonstration by the leaseholder that activities can be conducted 
with no or minimal adverse effect, the maximum protection mandate in 
the NPRPA requires the BLM to adopt this approach.
    Section 2361.40(g) sets forth procedures that must be followed when 
the BLM prepares an environmental analysis of proposed oil and gas 
leasing, development, or new infrastructure within Special Areas in the 
Reserve. The BLM must provide meaningful opportunities for public 
participation, including responding to comments, and consult with 
federally recognized Tribes and Alaska Native Claims Settlement Act 
corporations that use the affected Special Area for subsistence 
purposes or have historic, cultural, or economic ties to the Special 
Area. The BLM must evaluate potential adverse effects on significant 
resource values and consider measures to avoid, minimize, or otherwise 
mitigate adverse effects to achieve maximum protection of significant 
resource values. The BLM must also document and consider uncertainty 
about potential adverse effects on significant resource values. Actions 
taken to avoid, minimize, or mitigate adverse effects must account for 
any uncertainty. These procedures are foundational to all NEPA 
processes the agency undertakes, with increased attention given to 
assuring maximum protection and long-term resilience of significant 
resource values, consistent with the NPRPA.
    If the proposed project is on lands in a Special Area that are 
allocated as closed to leasing or unavailable to new infrastructure, 
then the BLM must document how the proposal falls within one of the 
exceptions provided for in Sec.  2361.40(e). If the proposed project is

[[Page 38747]]

on lands in a Special Area that are allocated as available for future 
oil and gas leasing or new infrastructure, and the BLM proposes to 
authorize the project, then the BLM must document the justification for 
overcoming the presumption in Sec.  2361.40(f). Section 2361.40(g)(4) 
provides examples of how the presumption might be overcome, such as if 
the proposed infrastructure is necessary to comport with the terms of a 
valid existing lease, or if it will primarily be used by and provide a 
benefit to communities located within or in close proximity to the 
Reserve, and the proposal has been conditioned to avoid, minimize, or 
otherwise mitigate adverse effects.
    If the BLM determines through the environmental analysis that the 
proposal cannot avoid adverse effects on significant resource values in 
a Special Area, then the BLM must prepare a Statement of Adverse 
Effect. The Statement of Adverse Effect must describe the significant 
resource values that may be adversely affected; the nature, scope, and 
duration of those adverse effects; measures the BLM evaluated to avoid 
the adverse effects, including whether any practicable alternatives 
exist that would have less adverse impact on significant resource 
values of the Special Area; justification for not requiring those 
measures; measures the BLM will require to minimize adverse effects on 
significant resource values of the Special Area; and measures the BLM 
will require to mitigate any residual adverse effects that cannot be 
avoided or minimized. The Statement of Adverse Effect would be 
incorporated into the environmental analysis and provided to the public 
for review and comment.
    Section 2361.40(h) requires that each decision and authorization 
related to oil and gas activity in the Reserve includes terms and 
conditions that provide the authorized officer with sufficient 
authority to fully implement the requirements of this section.

Section 2361.50--Management of Subsistence Uses Within Special Areas

Existing and Proposed Regulations
    The BLM proposed this new section to require Special Areas to be 
managed 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. The proposed rule 
also required the BLM to provide appropriate access to and within 
Special Areas for subsistence purposes, and explicitly referenced 
assuring maximum protection of the significant resource values of the 
Special Areas in the context of providing that access.
Public Comments on Sec.  2361.50
    Comment: Commenters expressed concerns about the impacts of oil and 
gas production in the Reserve on subsistence values and requested the 
BLM include more information on the collaboration between regulatory 
agencies, Alaska Native stakeholders, and industry.
    BLM Response: The BLM believes the final rule provides meaningful 
and necessary protections for subsistence values from the impacts of 
oil and gas production, consistent with the Department of the 
Interior's subsistence management regulations for public lands in 
Alaska. For example, the final rule specifies that all Special Area 
designation and amendment decisions will rely on Indigenous Knowledge 
and the best available information concerning subsistence uses and 
resources within the Reserve. It also details procedures for the BLM to 
avoid the adverse effects of proposed oil and gas activities on the 
significant resource values of Special Areas, which include subsistence 
values. The final rule requires the BLM to ensure that Special Areas 
are managed to protect and support fish and wildlife and fish and 
wildlife habitat and associated subsistence use, and to provide 
appropriate access to and within Special Areas for subsistence 
purposes.
    Comment: Commenters recommended the rule protect and enhance access 
for subsistence activities for local communities and ensure these 
activities do not harm the fragile ecosystem.
    BLM Response: The BLM believes the regulations adequately address 
this comment. The final rule requires the BLM to ensure that Special 
Areas are managed to protect and support subsistence use of fish and 
wildlife and their habitats. It further requires that the BLM will 
provide appropriate access to and within Special Areas for subsistence 
purposes.
    Comment: Comments noted that ANILCA section 811 requires the BLM to 
provide reasonable access to and within Special Areas for subsistence 
use of subsistence resources and recommended the final rule reference 
these provisions. Other commenters recommended that the BLM eliminate 
paragraph (b) because it is duplicative of ANILCA section 811.
    Commenters requested the BLM clarify the differences between 
``appropriate access'' as used in the proposed rule versus ``reasonable 
access'' under ANILCA section 811 and ensure the rule is not 
inconsistent with ANILCA. Commenters recommended that the BLM clarify 
the type of access anticipated by this provision. Commenters requested 
the rule be revised to clarify that the BLM's authority will never be 
used to restrict access for local subsistence users.
    BLM Response: The final rule retains a separate section requiring 
management of Special Areas to both protect resources for subsistence 
and protect access for subsistence activities, in order to address 
these concerns. The BLM has revised the language in this section to 
refer to ``reasonable access'' instead of ``appropriate access'' for 
consistency with the language in section 811 of ANILCA.
    Comment: Commenters recommended the BLM add language in the final 
rule that expressly recognizes section 810 of ANILCA mandates and 
ensures that the final rule reinforces BLM's duties to reduce or 
eliminate the use of lands that are needed for subsistence.
    BLM Response: The BLM added reference to ANILCA in the Authorities 
section in the final rule, as discussed in more detail in the Statutory 
Authority section of this preamble.
    Comment: Commenters recommended this section include a statement 
recognizing the ``traditional and ancestral cultural heritage of the 
Arctic Indigenous people in and around the NPR-A that continue to rely 
on critical subsistence resources within the NPR-A for their 
traditional, cultural, and spiritual way of life.''
    BLM Response: The BLM believes this comment is reflected in the 
preamble of the proposed rule, which discussed in detail: the manner in 
which subsistence harvesting serves as the cornerstone of the 
traditional relationship of the I[ntilde]upiat people with their 
environment, such that 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; how 
activities associated with subsistence provide a link between 
contemporary Alaska Natives and their ancestors; how traditional 
I[ntilde]upiaq values, with an emphasis on sharing, are embedded within 
all facets of I[ntilde]upiaq society, including subsistence hunting and 
harvesting traditions; and how the ability to pass on these values 
through the continuation of traditional subsistence activities in 
traditional places is essential to maintaining cultural traditions, 
traditional knowledge, and identity.
    Including the recommended language within the regulatory text is

[[Page 38748]]

unnecessary as it does not direct specific action the agency must take. 
However, we appreciate the intent of the comment, and we believe the 
regulation will benefit subsistence use in the Reserve.
    Comment: Commenters requested that the BLM assess Special Areas' 
significant resource values in a manner that assesses use for the 
intended purpose, as subsistence harvest may require more stringent 
impact assessment valuation than public use. For example, more 
stringent metrics may need to be used to consider consumption 
advisories and harmful levels of contaminants for subsistence users.
    BLM Response: We appreciate that subsistence harvest may require a 
different management standard than other uses and protection needs of 
significant resource values. However, this issue is best addressed in 
the IAP or other process as provided for in Sec.  2361.30 to address 
management of Special Areas, so that the BLM can consider and adopt 
site-specific management decisions to adequately protect subsistence 
use.
Description of the Final Rule
    The final rule adopts the proposed rule but deletes from paragraph 
(b) the phrase ``to the extent consistent with assuring maximum 
protection of all significant resource values that are found in such 
areas.'' This phrase was causing confusion and was unnecessary because 
Sec.  2361.30 requires the BLM to adopt measures to assure maximum 
protection of significant resource values when designating Special 
Areas.

Section 2361.60--Co-Stewardship Opportunities in Management of Special 
Areas and Subsistence

Existing and Proposed Regulations
    The BLM proposed this new section to encourage the BLM to explore 
co-stewardship opportunities for Special Areas, including co-
management, collaborative and cooperative management, and tribally led 
stewardship. The title of this section in the proposed rule was ``Co-
stewardship opportunities in Special Areas.'' This provision was 
designed to further the Department of the Interior's trust relationship 
and obligation to protect Tribal interests and further the Nation-to-
Nation relationship with Tribes. It also was designed to 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.)
Public Comments on Sec.  2361.60
    Comment: Commenters generally expressed support for the BLM to 
maintain and strengthen co-stewardship principles in the final rule.
    BLM Response: The BLM appreciates commenters' support for the 
inclusion of co-stewardship in the rule.
    Comment: Commenters requested the rule define co-stewardship more 
clearly.
    BLM Response: The term co-stewardship includes a broad range of 
cooperative efforts and is also defined in BLM guidance. The BLM has 
incorporated the definition that is used in BLM Permanent Instruction 
Memorandum No. 2022-011 (Co-Stewardship with Federally Recognized 
Indian and Alaska Native Tribes Pursuant to Secretary's Order 3403).
    Comment: Commenters recommended that the rule make clear that it is 
the Tribe or other partnering entity that determines the appropriate 
mechanism, such as co-management or co-stewardship.
    BLM Response: The rule leaves it to the parties to determine the 
best co-stewardship approach based on their collaborative efforts. 
There may be limitations on the types of agreements that are available 
depending on applicable law for specific situations.
    Comment: Commenters recommended strengthening this section of the 
rule to mandate co-stewardship and provide details on management models 
that may be adopted, rather than consider it as a potential management 
approach. Commenters recommended that meaningful requirements should 
include specificity and timelines for actions by the BLM.
    Commenters supported use of the term ``tribally led stewardship.'' 
Commenters recommended strengthening the provision to fully support 
tribally led stewardship in alignment with the Joint Secretarial Order 
on Fulfilling the Trust Responsibility to Indian Tribes in the 
Stewardship of Federal Lands and Waters Order 3403.
    BLM Response: The BLM is committed to fulfilling our trust 
relationship and the directives in the Joint Secretarial Order.\9\ We 
expanded the section to specify that co-stewardship may be used for 
management of both Special Areas and subsistence resources.
---------------------------------------------------------------------------

    \9\ The Joint Secretarial Order on Fulfilling the Trust 
Responsibility to Indian Tribes in the Stewardship of Federal Lands 
and Waters Order 3403 directs the Interior and Agriculture 
Departments, and their component Bureaus and Offices, to manage 
Federal lands and waters in a manner that seeks to protect the 
treaty, religious, subsistence, and cultural interests of federally 
recognized Indian Tribes; that such management is consistent with 
the nation-to-nation relationship between the United States and 
federally recognized Indian Tribes; and, that such management 
fulfills the United States' unique trust obligation to federally 
recognized Indian Tribes and their citizens. The Order enumerates 
actions the Departments must undertake, such as collaborating with 
federally recognized Tribes in the co-stewardship of Federal lands 
and waters, and principles of implementation. The Order is available 
online at https://www.doi.gov/sites/doi.gov/files/elips/documents/so-3403-joint-secretarial-order-on-fulfilling-the-trust-responsibility-to-indian-tribes-in-the-stewardship-of-federal-lands-and-waters.pdf.
---------------------------------------------------------------------------

    Comment: Commenters requested that the BLM create a Governing 
Commission with a role for Tribes in decision-making over subsistence 
harvests and other land use management decisions throughout the NPR-A, 
that gives Tribal delegates true decision-making authority. Commenters 
provided detailed recommendations for such a Commission.
    Commenters requested that the BLM create Indigenous-led stewardship 
groups that could perform activities such as monitoring harvests and 
ensuring permit compliance, collecting data on climate change 
indicators, invasive species control, collecting Traditional Indigenous 
Knowledge, and monitoring cultural sites.
    Commenters recommended that the BLM establish a ``Western Arctic 
Indigenous Knowledge (IK) Expert Advisory Group'' to aid with co-
management and co-stewardship.
    BLM Response: This recommendation is outside the scope of the rule 
as written. These are very interesting concepts for reaffirming the 
importance of the Reserve to subsistence and the role of Indigenous 
Knowledge in management and would not require changes to the rule if 
implemented. The BLM is interested in further discussions about these 
ideas as we implement the rule.
    Comment: Commenters requested the rule distinguish Tribal interests 
from those of ANCSA corporations. Commenters also recommended that the 
rule should not authorize co-stewardship with any non-native or non-
local organizations.
    BLM Response: Co-stewardship is only available to Tribes. 
Separately, the Bureau may partner with ANCSA corporations, local 
governments, or organizations as provided by law, which

[[Page 38749]]

would not be co-stewardship arrangements but a different type of 
partnership. The text of the rule has been revised to make this 
distinction clearer.
    Comment: Commenters requested that BLM consultation be more 
inclusive than just federally recognized Tribes and ANCSA corporations. 
Commenters proposed a multi-tiered approach to consultation that 
provides for additional self-governing bodies or cooperatives to be 
included in the first tier of consultation alongside the narrower 
categories of federally recognized Tribes and ANCSA corporations. 
Second and third tiers of consulting parties would include 
environmental organizations with close ties to the North Slope and 
inviting the public to informally comment at any time a consultation 
occurs.
    BLM Response: The BLM did not propose a broader approach to 
consultation in the proposed rule. Rather, it relied on existing law, 
regulations, and guidance regarding consultation with Tribes and Alaska 
Native Corporations. Changing those obligations is beyond the scope of 
this rulemaking, and, because it was not proposed, the final rule 
cannot adopt such an approach. The BLM works closely with local 
communities when making management decisions for the Reserve and will 
continue to engage and communicate with local communities in 
implementing the rule, independent of formal Tribal consultation 
efforts.
Description of the Final Rule
    In the final rule, the title is revised to read ``Co-stewardship 
opportunities in management of Special Areas and subsistence.'' The 
first sentence is also revised to add ``and subsistence resources 
throughout the NPR-A.'' Those revisions reflect that the BLM will seek 
co-stewardship opportunities not just in managing Special Areas, but 
also in managing subsistence resources more broadly. The first sentence 
is also revised to add ``federally recognized'' to clarify that the BLM 
engages in co-stewardship with federally recognized Tribes. This 
section of the final rule fulfills the special trust relationship that 
the Department of the Interior has with Tribes.

Section 2361.70--Use Authorizations

Existing and Proposed Regulations
    Existing Sec.  2361.2 is redesignated to Sec.  2361.70 in the final 
rule. 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 
omitted 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 were proposed to Sec.  2361.70(b).
    The proposed rule modified Sec.  2361.70(c) for clarity purposes 
and updated Sec.  2361.70(d) to recognize the BLM's duties to protect 
surfaces resources and assure maximum protection of Special Areas' 
significant resource values in the NPR-A.
Public Comments on Sec.  2361.70
    Commenters recommended that the final rule specifically include 
trapping as a use that does not require a use authorization. Non-
commercial trapping would not require a use authorization under the 
rule. The examples of activities exempted in Sec.  2361.70(b) are not 
comprehensive, as indicated by ``e.g.'' preceding the lists. The BLM 
declined to change the final rule, as trapping for recreation and/or 
subsistence use is already excepted from requiring a use authorization 
by this section of the rule.
Description of the Final Rule
    In paragraph (b), the phrase ``pursuant to Sec. Sec.  2361.1 and 
2361.2 or otherwise'' is deleted as unnecessary. Otherwise, the final 
rule adopts the proposed rule without changes.

Section 2361.80--Unauthorized Use and Occupancy

Existing and Proposed Regulations
    Existing Sec.  2361.3 is redesignated to Sec.  2361.80 in the final 
rule. No substantive changes were proposed to this section.
Public Comments on Sec.  2361.80
    No substantive comments were received specific to this section.
Description of the Final Rule
    The final rule adopts the section as proposed, which provides that 
any person who violates or fails to comply with regulations of this 
subpart is subject to prosecution, including trespass and liability for 
damages, pursuant to the appropriate laws.

V. Procedural Matters

Regulatory Planning and Review (Executive Orders (E.O.) 12866, 13563 
and 14094)

    E.O. 12866, as amended by E.O. 14094, provides that the Office of 
Information and Regulatory Affairs (OIRA) within the Office of 
Management and Budget (OMB) will review all significant regulatory 
actions. OIRA has determined that this 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 rule in a manner consistent 
with these requirements.
    The rule revises the framework for designating and assuring maximum 
protection of Special Areas and associated values and will protect and 
enhance access for subsistence activities throughout the NPR-A. It also 
incorporates aspects of the 2022 IAP. The rule will have no effect on 
currently authorized oil and gas operations in the NPR-A.
    BLM's economic analysis concludes that most of the provisions of 
the final rule are editorial, administrative, or otherwise could have 
no quantifiable economic cost or benefit. There are two changes that 
may generate economic costs or benefits. First, the change requiring 
evaluation of the NPR-A for new Special Areas and associated values 
every 10 years (or sooner if the authorized officer determines that 
changing conditions warrant) could generate time and real costs related 
to public engagement. These can be minimized by combining this process 
with the existing process for revising the IAP. Second, the rule 
establishes the current management strategy governing oil and gas 
activity in Special Areas of the NPR-A in regulation. The current 
management strategy is described in the 2022 IAP ROD and is the 
baseline for the economic analysis. Compared to the baseline, there is 
either no or minimal change in oil and gas management. Future changes 
to the framework and

[[Page 38750]]

process for management of oil and gas activities in relation to Special 
Areas and surface resources will require regulatory action; changes to 
management of specific Special Areas or other areas in the NPR-A will 
be addressed in the process set out in the rule or through an IAP 
planning revision.
    The BLM estimates the annual effect on the economy of the 
regulatory changes will be less than $200 million and will not 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local or tribal governments or communities. 
As such, the rule is not significant under section 3(f)(1) of E.O. 
12866, as amended by E.O. 14094. Pursuant to E.O. 12866, the BLM is 
required to conduct an economic analysis in accordance with section 
6(a)(3)(B) of that Executive order. The BLM has complied with that 
directive.

Public Comments on Regulatory Review

    Comment: The BLM received comments that the proposed rule would 
substantively change the BLM's management of the NPR-A, create 
uncertainty that may lead to reduced investment and economic 
opportunities, and does not contain merely administrative and 
procedural changes. The comment suggests that the BLM failed to comply 
with E.O. 12866, E.O. 13563, and E.O. 13132. The comment requests a 
full economic analysis, a federalism assessment, and an EIS.
    BLM Response: As described in the BLM's economic analysis, this 
rule incorporates aspects of the 2022 IAP, which is the current 
management framework for the NPR-A and forms the baseline for the 
economic analysis. Compared to the baseline, there is either no or 
minimal change in oil and gas management. The rule will not alter the 
terms of existing leases and will have no effect on currently 
authorized oil and gas operations in the NPR-A. The rule establishes a 
framework for future decision-making processes that would result in 
management changes, such as requiring the BLM to maintain an IAP, which 
guides on-the-ground management and which could be updated in the 
future through a NEPA process, and establishing the process by which 
Special Areas would be designated, de-designated, and modified in the 
future. The BLM conducted an economic analysis for the rule consistent 
with the requirements under E.O. 12866. Comments requesting a 
federalism assessment and an EIS are responded to in the relevant areas 
that follow.
    Comment: The BLM received comments stating: ``A proposed regulation 
is economically significant if it will have an annual effect on the 
economy of $200 million or more (adjusted every 3 years by the 
Administrator of OIRA for changes in gross domestic product). For 
economically significant rules, a more rigorous cost-benefit analysis 
must be prepared pursuant to section 6(a)(3)(C).'' Comments requested 
BLM provide more background information on how a conclusion of an 
economic impact of less than $200 million per year was reached and 
requested participation of the NPR-A working group to provide a more 
rigorous cost benefit analysis.
    BLM Response: The BLM reviewed the provisions of the rule and 
disclosed the potential impacts of the action relative to the existing 
management framework for the NPR-A. BLM's economic analysis concludes 
that most of the provisions of the final rule are editorial, 
administrative, or otherwise could have no quantifiable economic cost 
or benefit.
    Comment: The BLM received comments expressing concern that neither 
the 2022 NPR-A IAP ROD nor the proposed rule's economic analysis 
accounted for the likely recoverable oil within the NPR-A and therefore 
potentially reduced the impact from the rule on the economic outlook 
from the NPR-A.
    BLM Response: The 2022 NPR-A IAP ROD incorporates the analysis in 
the 2020 Final Environmental Impact Statement, which evaluated 
potential development in detail. The rule's use of the IAP as a 
baseline did not affect the economic analysis of potential impacts and 
the overall conclusion that the rule will not have substantial impacts 
on expected levels of oil and gas development in the NPR-A.
    Comment: The BLM received comments stating that the economic 
analysis provided is ``insufficient and omits any analysis of the 
effects of regulatory provisions that will have economic impacts, such 
as the proposed presumption against permitting activities in Special 
Areas.'' Comments requested that if the BLM decides to proceed with the 
proposed rule, it must first prepare for public review and comment the 
proper analysis under section 6(a)(3)(C) of E.O. 12866.
    BLM Response: The BLM's economic analysis fulfills the requirements 
of E.O. 12866 as amended. It discusses the incremental effect of the 
presumption that new leasing and infrastructure should not be permitted 
unless specific information clearly demonstrates they can be conducted 
with no or minimal adverse effects on significant resource values 
relative to the statutory mandate to assure maximum protection of 
Special Areas. Compared to the baseline for the analysis, the rule will 
not affect management of existing leases or areas identified as closed 
to leasing or new infrastructure. For a small portion of existing 
Special Areas that are not leased and are designated as open to leasing 
or available for new infrastructure, the rule will have a nominal or 
minimal effect on management of oil and gas activity. The effect will 
be nominal if the same leasing stipulations are imposed under the rule 
that would be imposed under the baseline. Even if the stipulations are 
more restrictive, the effect is expected to be minimal due to the low 
revealed demand for leasing in these areas. In the event there is a 
minimal change in leasing stipulations of the areas considered open for 
leasing, the welfare effects include those associated with the change 
in oil and gas production as well as the increased protection of the 
ecological, subsistence, cultural and other significant resource 
values.
    Comment: The BLM received comments stating that the presumption 
that no additional leasing, development, and/or infrastructure within 
Special Areas will be allowed, paired with the proposed discretion of 
the authorized officer to establish interim/emergency protections on 
lands considered for Special Areas, is a significant regulatory action. 
As such, the economic analysis is insufficient to determine a 
significant regulatory action described in E.O. 12866 section 3(f)(1), 
as amended by E.O. 14094. The commenter asserts that the BLM's economic 
analysis fails to even acknowledge this fact.
    BLM Response: The BLM's economic analysis discusses the incremental 
effect of the presumption that new leasing and infrastructure should 
not be permitted unless specific information clearly demonstrates that 
the resulting activities can be conducted with no or minimal adverse 
effects on significant resource values relative to the statutory 
mandate to assure maximum protection of Special Areas. See the BLM's 
response to a similar comment immediately preceding this one.
    Comment: The BLM received comments stating that the scale of 
impacts could exceed the $200 million threshold of E.O. 12866. 
Commenters provided information supporting this statement including 
comparisons to the Greater Mooses Tooth 1 development that they state 
would likely exceed $1 billion in today's dollars. They provide

[[Page 38751]]

further information on costs for Willow and Pikka and state those 
projects would be in the multi-billion-dollar range. They use these 
statements to request that the BLM conduct a thorough economic 
analysis.
    BLM Response: The commenters did not provide quantitative 
information establishing that the rule would increase costs more than 
$200 million beyond the costs involved in complying with the existing 
regulations. The rule will have no effect on currently authorized oil 
and gas operations in the NPR-A, like Greater Mooses Tooth 1. In 
addition, it does not affect operations on non-BLM lands or on 
operations outside of the NPR-A, like Pikka. Currently, the NPR-A is 
managed according to the 2022 IAP ROD. The rule will alter the 
procedural steps needed to change management of oil and gas activity 
within Special Areas in the future, though it will still require a 
public process, consultation, and appropriate NEPA analysis. The BLM's 
economic analysis for the rule discusses that incremental change.
    Comment: The BLM received comments stating: ``It is unclear how BLM 
economic analysis considered the Reasonably Foreseeable Development 
Scenario (Appendix B of the NPR-A IAP). The proposed rule and 
continue[d] expansion of Special Areas would not allow for the 
scenarios described in the IAP but does not discuss the economic 
impacts from those changes/restrictions. Is BLM assuming that under 
this proposed rule that there would be no change to the reasonably 
foreseeable development scenario and that the proposed rule would allow 
for each of the development scenarios described in NPR-A IAP appendix 
B? If not, then potential impacts from each development scenario should 
be fully evaluated.'' \10\
---------------------------------------------------------------------------

    \10\ The Reasonably Foreseeable Development Scenario is defined 
in appendix B of the 2020 Final IAP/EIS, available at https://
eplanning.blm.gov/public_projects/117408/200284263/20020421/250026625/Volume%202_Appendices%20B-Y.pdf.
---------------------------------------------------------------------------

    BLM Response: We believe that the commenter is referencing the 
Final Environmental Impact Statement for the 2020 NPR-A IAP, issued in 
June 2020, which was the analysis used for the BLM's 2022 IAP ROD. This 
rule incorporates aspects of the 2022 IAP ROD. The economic analysis 
for this rule concludes that most of the provisions of the final rule 
are editorial, administrative, or otherwise have no economic cost or 
benefit. The BLM is not required to analyze alternatives that were 
posed and analyzed in previous planning efforts.
    BLM notes that public commenters raised potential distributional 
impacts to specific communities. BLM expects limited impacts of this 
rule relative to the 2022 IAP baseline. However, to clarify the impacts 
to management of these areas when considering future leases or 
infrastructure, the economic analysis refers to the EIS of the 2022 IAP 
for a high-level summary of potential impacts to those communities from 
the broader scope of the IAP. That EIS addressed potential incremental 
effects to I[ntilde]upiat residents of the North Slope Borough and 
other communities of the North Slope.
    Comment: The BLM received comments stating the position that the 
BLM should use the existing regulations rather than the 2022 IAP ROD as 
the baseline to compare to the proposed rule. They state that ``the 
appropriate baseline for this new Proposed Rule is the rule it 
replaces. The rule being replaced does not presume that leases or 
surface infrastructure in Special Areas cannot be permitted. The 
appropriate baseline for economic analysis is clear when the difference 
between adopting the Proposed Rule and not adopting the Proposed Rule 
is considered.''
    BLM Response: Concerning the commenter's suggestion that the BLM 
did not use the appropriate baseline, OMB Circular A-4 (September 17, 
2003) states that a baseline ``normally will be a `no action' baseline: 
what the world will be like if the proposed rule is not adopted.'' If 
the BLM did not issue this rule, the 2022 IAP ROD would be the 
prevailing management framework for the NPR-A.
    Comment: The BLM received comments stating that while the proposed 
rule ``argues that there is little interest in leasing of the Special 
Areas, BLM's own Table 3 in the Economic Analysis summarizes that, 
since 2011, for 5 out of 9 years, there has been greater leasing in the 
Special Areas than the rest of the NPRA.'' Commenters asserted that a 
proposed rule that presumes against development would likely result in 
decreased oil and gas activity, thereby causing economic impacts that 
should be acknowledged in the Economic Analysis.
    BLM Response: There is no clear evidence of large, unmet demand for 
oil and gas leases inside current Special Areas (SAs). Three Special 
Areas (Peard Bay SA, Kasegaluk Lagoon SA, and Utukok River Uplands SA) 
are of low oil and gas potential and far away from existing 
infrastructure. As a result, these have been unaffected by past oil and 
gas activity. No leases have ever been offered or issued in the 
Kasegaluk Lagoon SA. Lease sales in 2013 and 2017 offered parcels in 
the Utukok River Uplands SA, but none were acquired. In 2004, one lease 
was acquired that included a very small overlap with the Peard Bay SA. 
That lease was relinquished in 2010 with no oil and gas activity 
recorded. In 2016, there were 933 acres inside the Peard Bay SA offered 
for lease, none were acquired. Meanwhile, two Special Areas (Colville 
River SA and Teshekpuk Lake SA) have seen substantial interest in oil 
and gas development, but large portions of those areas have already 
been leased or have been offered for lease and not acquired. 
Approximately 52.5 percent (1,282,050 acres) and 90.3 percent 
(3,292,338 acres) of the Colville River SA and Teshekpuk Lake SA, 
respectively, have already been offered for lease at least once since 
creation of the NPR-A. Since 2011, approximately 12.8 percent (313,000 
acres) and 9.9 percent (361,000 acres) within the Colville River SA and 
the Teshekpuk Lake SA, respectively, were leased.
    Comment: The BLM received comments stating that the economic 
analysis did not consider concepts that commenters suggested should be 
considered, such as: restricted production; whether royalty receipts 
would exceed the risks posed by projected oil and gas development; and 
what funds would be necessary if an oil and gas company fails to plug 
the wells or reclaim the land, or to clean up oil spills. Comments also 
suggested that IAPs should incorporate a cost-benefit analysis for 
future oil and gas leasing.
    BLM Response: As described in the BLM's economic analysis, this 
rule incorporates aspects of the 2022 IAP, which is the current 
management framework for the NPR-A and forms the baseline for the 
economic analysis. Compared to the baseline, there is either no or 
minimal change in oil and gas management. The rule will alter the 
procedural steps needed to change management of oil and gas activity 
within Special Areas in the future, though it will still require a 
public process, consultation, and appropriate NEPA analysis. The rule 
will not alter the terms of existing leases and will have no effect on 
currently authorized oil and gas operations in the NPR-A.
    Regarding the comments that IAPs should incorporate a cost-benefit 
analysis, the NEPA process that will occur when changes are made to an 
IAP does not require formal cost-benefit analysis, but it may examine 
socio-economic effects of the action, as appropriate. In addition, any 
future changes to management that require regulatory action are subject 
to

[[Page 38752]]

analytical requirements under E.O. 12866.
    Comment: The BLM received comments stating: ``While the SCC [social 
cost of carbon] was excluded deliberately from the 2020 IAP/EIS, the 
proposed rule should explicitly implement SCC into its present and 
future analysis to promote informed, accurate decision making in the 
NPR-A.'' Commenters stated that the 2020 IAP/EIS correctly states that 
NEPA does not require a cost-benefit analysis and only requires a 
consideration of economic and social effects but that they ``believe 
both the public and future agency decision makers lack the information 
that could be provided by a robust cost-benefit analysis to make wise 
choices in this particularly pristine, remote, and vulnerable region. 
For instance, because the proposed rule does not require the inclusion 
of SCC in future environmental documents within the NPR-A, it will be 
difficult to determine the true break-even point of investment. 
Instead, agency decision makers and the public may miss opportunities 
to consider how renewable energy alternatives, either in the [NPR-A] or 
elsewhere, could outcompete the energy output of an oil project, all 
with minimal SCC.''
    BLM Response: As discussed in section III(E) of this preamble 
above, the rule is focused on addressing impacts to surface values of 
the Reserve and consolidating and implementing the BLM's statutory 
obligations, primarily those in the NPRPA, to protect those values when 
authorizing oil and gas leasing and production. Thus, this rule does 
not analyze or specifically consider the climate impacts of oil and gas 
development in the Reserve, which is more appropriately addressed in 
the IAP or when conducting NEPA analysis for oil and gas leasing and 
production activities.

Regulatory Flexibility Act

    The Secretary of the Interior certifies that this final 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 a Final Regulatory Flexibility 
Analysis with this final rule.
    The Small Business Administration (SBA) has developed size 
standards to carry out the purposes of the Regulatory Flexibility Act 
(RFA), 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 final 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. These eight companies (and information about 
the companies obtained from the public domain) include: The Aklaq 
Company, Alaska (an Alaska-registered company); Borealis Alaska Oil, 
Inc (acquired by Pantheon Resources, a United Kingdom-based oil and gas 
company); Oil Search Alaska, LLC (a subsidiary of Santos Limited, a 
large Australian oil company); Armstrong Oil and Gas, Inc (a Colorado-
based exploration company); North Slope Exploration, LLC (managed by 
Armstrong Oil and Gas, Inc.); Repsol E&P USA Inc (a subsidiary of 
Repsol, a large Spanish oil company); ConocoPhillips Alaska, Inc (a 
subsidiary of ConocoPhillips, a large American multinational 
corporation); and Emerald House LLC (owned by XCD Energy Ltd, an 
Australian-based oil company).
    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. Of the companies 
identified, based on information that BLM was able to obtain from the 
public domain, the BLM believes that the Aklaq Company Alaska, Borealis 
Alaska Oil Inc, Armstrong and North Slope Exploration, and Emerald 
House LLC meet the SBA's criteria of a small business. The BLM has 
determined that this is less than a substantial number of small 
entities potentially affected.
    In addition to small business, the RFA also requires consideration 
of impacts on small governmental jurisdictions. There are four 
communities within the Reserve that are likely considered small 
government jurisdictions: Wainwright, Utqiagvik, Atqasuk, and Nuiqsut. 
However, this rule will not override the terms or status of existing 
leases, will not affect authorized operations, and does not impose 
direct regulatory cost on any business or community.
    Further, this rule does not change management decisions regarding 
future leasing and oil and gas development in areas outside Special 
Areas, or within Special Areas where leasing or infrastructure is 
already restricted. In the remaining areas, the impact on future 
leasing is uncertain but expected to be nominal or minimal for the 
reasons identified above. Therefore, this rule will not have 
significant economic impact on small businesses holding these leases or 
small government jurisdictions in the Reserve.
    Comment: The BLM received comments expressing the concern that 
development of the NPR-A provides a direct economic benefit to the 
regional government, local villages, and the State of Alaska and that a 
reduction in production from the NPR-A would mean less revenue to 
provide services to Alaskans. Commenters stated that the economic 
analysis fails to consider the impact to local communities of losing 
future revenues and that they perceive that the analysis does not 
consider the ``social implications of eliminating or dramatically 
restricting future development in the NPR-A that would remove jobs and 
a substantial portion of the tax base''.
    BLM Response: The approval of existing development and the terms of 
existing leases are not affected by the final rule, nor does the rule 
eliminate or drastically restrict future development in the NPR-A. As 
discussed in more detail above and in the economic analysis, the BLM 
does not anticipate substantial impacts on leasing and development. 
Future development is already subject to conditions in the IAP, the BLM 
has not received significant interest in new leasing in response to 
lands offered in sales, and the costs associated with additional 
protective measures consistent with current lease terms would not 
impose a significant new cost on operators.
    Comment: The BLM received comments expressing the opinion that the 
BLM constrained the economic analysis to eight active lessees in the 
NPR-A and did not include ``small government jurisdictions'' or other 
small entities that operate within the NPR-A. Commenters stated that 
the North Slope Borough and the four villages located within the NPR-A 
(Utqiagvik, Wainwright, Atqasuk, and Nuiqsut), and the Inupiat 
Community of the Arctic Slope all qualify as small government 
jurisdictions, and they requested these entities be included in the 
economic analysis. Several of these comments also referenced the 
benefits it perceives these entities receive from development of the 
NPR-A, including payments to the Mitigation Grant program, employment 
opportunities, and development of infrastructure.
    BLM Response: The BLM recognizes the government jurisdictions 
should also be considered under the Regulatory Flexibility Act and has 
updated the economic analysis accordingly. However, while these small 
entities exist, the rule does not affect existing

[[Page 38753]]

leases and does not prevent future oil and gas development in the NPR-
A. As such, the rule is not expected to significantly affect these 
communities any differently that the current management of the NPR-A.

Congressional Review Act

    Based upon the economic analysis, this final rule does not meet the 
criteria under 5 U.S.C. 804(2), the Congressional Review Act. This rule 
will not:
    (a) Have an annual effect on the economy of $100 million or more.
    (b) Cause a major increase in costs or prices for consumers, 
individual industries, Federal, State, or local government agencies, or 
geographic regions.
    (c) Have significant adverse effects on competition, employment, 
investment, productivity, innovation, or the ability of U.S. based 
enterprises to compete with foreign based enterprises.

Unfunded Mandates Reform Act (UMRA)

    The final rule will not have a significant or unique effect on 
State, local, or Tribal governments or the private sector. The final 
rule contains no requirements that will apply to State, local, or 
Tribal governments. The costs that the final rule will 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 UMRA (2 
U.S.C. 1531 et seq.) is therefore not required for the final rule. This 
final 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.

Takings (E.O. 12630)

    This rule does not affect a taking of private property or otherwise 
have taking implications under E.O. 12630. Section 2(a) of E.O. 12630 
identifies policies that do not have takings implications, such as 
those that abolish regulations, discontinue governmental programs, or 
modify regulations in a manner that lessens interference with the use 
of private property. The rule will not interfere with private property. 
A takings implication assessment is not required.

Federalism (E.O. 13132)

    Under the criteria in section 3 of E.O. 13132, this final rule does 
not have sufficient federalism implications to warrant the preparation 
of a federalism summary impact statement. A federalism impact statement 
is not required.
    The final rule does 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 does not apply to States or local governments 
or State or local governmental entities. The final rule will affect the 
relationship between operators, lessees, and the BLM, but it does not 
directly impact the States. Therefore, in accordance with E.O. 13132, 
the BLM has determined that this final rule does not have sufficient 
federalism implications to warrant preparation of a federalism 
assessment.
    Comment: Commenters question the BLM's statement that the rule does 
not apply to States or local governments and clarifies that the rule 
only ``affects the relationship between operators and lessees in the 
NPR-A and their relationships with the BLM.'' Commenters further 
believe that the area should be managed in a ``joint comprehensive 
management plan'' under the authority granted to Alaska. The commenter 
stated that Alaska's resource and regulatory agencies should be 
``considered superior to any proposed Federal process and have final 
authority on any changes or rulemaking that would conflict with 
existing state programs.'' Commenters suggest that local counties and 
cities should have the ultimate decision on what happens on the land. 
The BLM and other stakeholders should provide input, but the State of 
Alaska and the residents should make the final decision.
    BLM Response: While commenters take issue with the management 
framework Congress established for the Reserve, this is beyond the 
BLM's authority to address. Further, as discussed in the section III(C) 
above, the BLM did meet with the State of Alaska regarding the rule and 
will engage with State and local government agencies in the 
implementation of this rule, particularly during the development of 
future IAP and project-specific NEPA processes.
    Comment: The BLM received comments that stated the position the 
proposed rule warrants preparation of a federalism assessment. The 
commenter recommended that the BLM undertake a federalism assessment to 
evaluate the impact of the proposed rule on the State's powers. For 
example, Sec.  2361.50(a) of the proposed rule stated that the BLM 
``will ensure that Special Areas are managed to protect and support 
fish and wildlife.'' The commenter argued that this ``direction 
conflicts with the State's broad trustee and police powers over fish 
and wildlife within [its] borders.'' The commenter opined that the BLM 
therefore needs to prepare a federalism assessment consistent with E.O. 
13132. The commenter disagrees with the BLM's assertion that 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 
various levels of government.'' Rather, the commenter argued that 
because the Federal Government is required to pay 50 percent of all 
receipts from ``sales, rentals, bonuses, and royalties on leases'' in 
the NPR-A to the State of Alaska, by revising and creating procedures 
and requirements for exploration, development, and production in the 
NPR-A, ``the Proposed Rule has a direct impact on these revenues and, 
thus, the interests of the State and North Slope Borough. Neither the 
State nor the North Slope Borough were consulted on the Proposed Rule 
as E.O. 13132 requires. BLM should conduct the necessary consultation 
with States and local governments before proceeding with a revised 
version of the Proposed Rule.''
    BLM Response: E.O. 13132 generally prohibits Federal agencies from 
promulgating rules that might have a substantial direct effect on 
States or local governments, on the relationship between Federal and 
State governments, or on the distribution of power and responsibilities 
among the various levels of government, without meeting certain 
conditions, such as consulting with elected State and local government 
officials early in the process to the extent practicable. In 
particular, administrative rules may not create substantial direct 
compliance costs for State or local governments that are not otherwise 
required by statute, and may not expressly or impliedly preempt State 
law, without Federal agencies undertaking additional processes. While 
this rule does modify the management approach the BLM will take in the 
Reserve, the regulations only affect oil and gas activity on Federal 
public lands; nothing in the rule preempts State law or requires State 
or local governments to comply with specific provisions. As a result, a 
federalism summary impact statement is not required. Further, as 
discussed in the section III(c) above, the BLM did engage with the 
State of Alaska and the North Slope Borough during the rulemaking 
process.

[[Page 38754]]

Civil Justice Reform (E.O. 12988)

    This final rule complies with the requirements of E.O. 12988. More 
specifically, this final rule:
    a. 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; and
    b. Meets the criteria of section 3(b)(2), which requires agencies 
to write all regulations in clear language with clear legal standards.

Consultation With Indian Tribes (E.O. 13175 and Departmental Policy)

    The BLM endeavors to maintain and 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 possible effects 
of the rule on federally recognized Indian Tribes under E.O. 13175, the 
President's memorandum of April 29, 1994, ``Government-to-Government 
Relations with Native American Tribal Governments'' (59 FR 22951), and 
512 Departmental Manual 2, as part of this rulemaking process and 
determined that the rule has tribal implications.
    In conformance with the Secretary's policy on tribal consultation 
and 512 Departmental Manual 4-7, on August 25, 2023, the BLM invited 
via mail 45 Tribes and 30 Alaska Native Corporations to engage in 
consultation regarding the proposed NPR-A rule. The BLM engaged in 
Tribal consultation on the decisions and resulting actions related to 
the IAP, including the 2022 IAP ROD. This regulation incorporates those 
IAP decisions and also updates a 50-year-old framework to reflect the 
IAP and lessons learned through preparing IAPs. Prior consultation on 
the specific procedural changes that were being proposed provided the 
BLM with valuable feedback on how the regulatory language, in 
particular, might be improved to better reflect Tribal interests. The 
BLM felt that it would be more productive to seek new feedback after 
providing the proposal in the form of a proposed regulation, which 
necessarily differs from the process, content, and form of a management 
plan.
    The BLM has continued to offer consultation to Tribes and Alaska 
Native Corporations that it determined would be most likely to have 
substantial direct effects from the rule, including the Native Village 
of Atqasuk, Atqasuk Corporation, Village of Wainwright, Olgoonik 
Corporation, Native Village of Nuiqsut, Kuupik Corporation, Native 
Village of Barrow, UIC, ICAS, and ASRC. BLM Leadership and State and 
Field Office staff met with the Mayor of Atqasuk on October 31, Native 
Village of Nuiqsut on November 1, ICAS on November 3 and February 6, 
Village of Wainwright on November 21, Olgoonik Corporation on December 
19, ASRC on December 21, and Kuukpik Corporation on February 1. In 
addition, staff met and discussed the proposed rule with the NPR-A 
Working Group (consisting of representatives from North Slope local 
governments, Native corporations, and tribal entities, https://www.blm.gov/programs/energy-and-minerals/oil-and-gas/about/alaska/NPR-A/npr-a_working_group) on September 26, October 17, and December 1. We 
also held in-person public meetings in Nuiqsut, Utqiagvik, and 
Wainwright where verbal comment was recorded, along with three 
informational sessions--one in Anchorage and two virtual. The BLM will 
continue to engage in consultation with Tribes and Alaska Native 
Corporations after the final rule is published.
    As detailed in the public engagement section above, the BLM 
received requests, including from Tribes and Alaska Native 
Corporations, to extend the 60-day public comment period for the 
proposed rule for an additional 90 days, which would have resulted in a 
150-day (5-month) comment period. A 5-month comment period far exceeds 
the typical duration for rulemaking comment periods. While the BLM was 
unable to grant the requested extension, we did extend the comment 
period for an additional 30 days, resulting in a 90-day comment period 
for the proposed rule. While the comment period for the proposed rule 
overlapped with the comment period on the Draft Supplemental EIS for 
the Coastal Plain, the Coastal Plain comment period was 60 days and 
ended one month before the close of the comment period on the proposed 
rule.
    During consultation, the Tribes and Alaska Native Corporations 
raised similar concerns as they submitted during the comment period of 
the rule, which are addressed in the responses to comment above. 
Notable concerns raised during consultation include the potential for 
loss of revenue from oil and gas development, the need for protections 
to sustain tribal members' subsistence way of life, ensuring adequate 
consultation going forward, and ensuring that the rule allows access 
for communities and continued economic development opportunities for 
community members. Changes made in response to this input, include: 
revising sections of the rule that relate to consultation to clarify 
that an economic tie to a Special Area is a basis for consultation; 
ensuring consultation is consistently required throughout the processes 
for designating, de-designating and modifying Special Areas and 
evaluating proposed oil and gas activities in Special Areas; adding 
subsistence as an area for co-stewardship across the Reserve, 
broadening the language in the section on co-stewardship beyond 
opportunities in Special Areas; and revising the language in the 
section on subsistence to provide for reasonable access, to be 
consistent with ANILCA, rather than using the term ``appropriate'' 
access.

Paperwork Reduction Act (PRA)

    The Paperwork Reduction Act (PRA) (44 U.S.C. 3501 through 3521) 
generally provides that an agency may not conduct or sponsor, and not 
withstanding 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 final rule contains an information-collection requirement that 
is subject to review by OMB under the PRA. This information-collection 
is located in Sec.  2361.30(a)(4). One of the key principles of the 
final rule is the inclusion of stakeholder and the public notice and 
participation in the designation and removal of lands to be included in 
an SA. To help ensure that the BLM receives the information needed to 
inform its decision to include lands in an SA, Sec.  2361.30(a)(4) 
includes a list of criteria that should be addressed when a member of 
the public recommends lands for such a designation. This information 
includes the following:
     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 the information-
collection requirement contained in this final rule. The estimated 
burden associated with this information-collection is outlined below.

[[Page 38755]]

    OMB Control Number: 1004-0221.
    Title of Collection: Management and Protection of the National 
Petroleum Reserve in Alaska--Recommendations for Special Reserve Areas 
(Sec.  2361.30).
    Form Number: None.
    Type of Review: New collection (Request for new OMB Control 
Number).
    Respondents/Affected Public: Person(s) who wish to recommend lands 
to be designated as a Special Area in the NPR-A.
    Respondent's Obligation: Voluntary.
    Frequency of Collection: On occasion; 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 
in this final rule, please send your comments and suggestions on this 
information-collection request within 30 days of publication of this 
final rule in the Federal Register to OMB by going to www.reginfo.gov. 
Click on the link, ``Currently under Review--Open for Public 
Comments.''

National Environmental Policy Act

    This final rule meets the criteria set forth at 43 CFR 46.210(i) 
for a Departmental categorical exclusion in that this final 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.
    Public Comments on NEPA: The BLM received a number of comments 
objected to the BLM's intent to rely on a categorical exclusion to 
comply with NEPA and requested that the BLM prepare an environmental 
analysis, including a range of alternatives for certain aspects of the 
rule, in order to comply with NEPA.
    BLM Response: The BLM disagrees with comments that environmental 
analysis under NEPA is required, or that extraordinary circumstances 
apply to this rulemaking. The BLM has determined that the categorical 
exclusion set out at 43 CFR 46.210(i) applies to this rulemaking. That 
provision excludes from NEPA analysis and review actions that are ``of 
an administrative, financial, legal, technical, or procedural nature; 
or whose environmental effects are too broad, speculative, or 
conjectural to lend themselves to meaningful analysis and will later be 
subject to the NEPA process, either collectively or case-by-case.'' 
That categorical exclusion applies because the final rule sets out a 
framework for managing oil and gas activity in the Reserve, but is not 
self-executing, meaning that it does not itself make substantive 
changes on the ground and does not restrict the BLM's discretion to 
undertake or authorize future on-the-ground action without new future 
decisions that implement the rule. As such, the rule fits within the 
categorical exclusion for rules, regulations, or policies to establish 
bureau-wide administrative procedures, program processes, or 
instructions. This final rule does not authorize any project or other 
on-the-ground activity and therefore will have no significant 
individual or cumulative effects on the quality of the human 
environment. The environmental effects of future actions undertaken to 
implement this rule are too speculative or conjectural to be 
meaningfully evaluated at this time but will be subject to the 
appropriate level of NEPA review prior to making a decision. The BLM 
has also determined that none of the extraordinary circumstances 
identified at 43 CFR 46.215 apply to this rulemaking. This categorical 
exclusion documentation is provided in docket BLM-2023-0006 on 
regulations.gov.

Effects on the Nation's Energy Supply (E.O. 13211)

    Under E.O. 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 E.O. 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 final rule will not have a significant effect on the Nation's 
energy supply. It restates existing statutory standards and establishes 
a procedural framework for ensuring that the BLM meets those standards. 
It also codifies land use restrictions that already are legally binding 
in the 2022 IAP ROD. Further, the final rule presumes, in final Sec.  
2361.40(c), that oil and gas leasing or infrastructure on lands 
allocated as available for such activities ``should not be permitted 
unless specific information available to the Bureau clearly 
demonstrates that those activities can be conducted with no or minimal 
adverse effects on significant resource values.'' That presumption 
merely implements the BLM's existing statutory duty to assure maximum 
protection of the significant resource values in Special Areas to the 
extent consistent with the requirements of this Act for the exploration 
and production of the Reserve. 42 U.S.C. 6504(a). The presumption is 
consistent with this statutory direction and limited by it, such that 
the actions that the BLM may take under this framework to assure 
maximum protection are within the same scope as those that could have 
been taken without the framework set out in the rule. As discussed in 
more detail in the regulatory impact analysis (RIA), based on the 
status of existing leases, most recent lease sales, and the fact that 
the rule will not alter the terms of approved leases or approved 
development, the BLM does not expect the rule to have a substantial 
impact on exploration and production from the Reserve. Therefore, the 
final rule will not change the supply, distribution, or use of energy.

Public Comments on E.O. 13211

    The BLM received comments that the proposed rule constitutes a 
significant energy action as it would affect the supply, distribution, 
and use of energy, and thereby fails to comply with E.O. 13211. One 
commenter specified that ``actions taken to restrict and limit oil and 
gas development, access to the NPR-A for oil and gas development, and 
codification of BLM's authority to restrict, deny, and minimize oil and 
gas development in the NPR-A would logically have an impact on the 
Nation's energy supply.'' Commenters also asserted that oil production 
from the NPR-A will extend the economic lifetime of the Trans-Alaska 
Pipeline and enable domestic oil to reach the rest of the United 
States. For the reasons stated above, the rule will not change the 
supply, distribution, or use of energy.
    Other commenters cited an estimate from the U.S. Geological Survey 
that there are 8.7 billion barrels of undiscovered oil in the NPR-A, an 
important reserve created specifically by Congress for energy 
production. Commenters added that `` . . . by denying development in 
the region,

[[Page 38756]]

BLM is denying the State of Alaska, and the U.S., billions of dollars 
in revenue.'' Furthermore, comments stated that BLM's proposed plan 
will also deny American consumers affordable and reliable energy at a 
time of persistently high fuel prices; the rule ``undermines the 
reality that oil produced from the NPR-A can displace imports and will 
increase the likelihood of imports from less environmentally regulated 
regions of the world.''
    These comments misunderstand the rule; it does not prohibit 
exploration for and development of oil and gas in the Reserve. Rather, 
it allows oil- and gas-related activities to continue consistent with 
the NPRPA by establishing procedures for the BLM to mitigate reasonably 
foreseeable and significantly adverse effects of proposed oil and gas 
activities on the surface resources of the Reserve and to provide 
maximum protection for surface values within Special Areas for proposed 
oil and gas activities.
    The BLM received comments discussing the Russian invasion of 
Ukraine and the importance of energy security and strengthening the 
supply chain for the U.S. and its allies. Commenters indicated that 
``as one of the largest exporters of petroleum in the world, the United 
States' ability to facilitate global diversification from Russian 
energy can only be enhanced by NPR-A development.'' Again, these 
comments misunderstand the rule; it does not prohibit exploration for 
and development of oil and gas in the Reserve.

List of Subjects in 43 CFR Part 2360

    Alaska, Oil and gas activity, Protection of surface resources, 
Special areas, Tribes.

Delegation of Signing Authority

    This action by the Principal Deputy Assistant Secretary is taken 
pursuant to an existing delegation of authority.

Steven H. Feldgus,
Principal Deputy Assistant Secretary, Land and Minerals Management.

0
For the reasons set out in the preamble, the Bureau of Land Management 
revises 43 CFR part 2360 to read as follows:

PART 2360--NATIONAL PETROLEUM RESERVE IN ALASKA

Subpart 2361--Management and Protection of the National Petroleum 
Reserve in Alaska
Sec.
2361.1 Purpose.
2361.3 Authority.
2361.4 Responsibility.
2361.5 Definitions.
2361.6 Effect of law.
2361.7 Severability.
2361.10 Protection of surface resources.
2361.20 Existing Special Areas.
2361.30 Special Areas designation and amendment process.
2361.40 Management of oil and gas activities in Special Areas.
2361.50 Management of subsistence uses within Special Areas.
2361.60 Co-stewardship opportunities in management of Special Areas 
and subsistence.
2361.70 Use authorizations.
2361.80 Unauthorized use and occupancy.
Subpart 2362 [Reserved]

    Authority:  42 U.S.C. 6501 et seq. and 43 U.S.C. 1701 et seq.

PART 2360--NATIONAL PETROLEUM RESERVE IN ALASKA

Subpart 2361--Management and Protection of the National Petroleum 
Reserve in Alaska


Sec.  2361.1  Purpose.

    The purpose of the regulations in this subpart is to provide 
procedures for protection and control of the environmental, fish and 
wildlife, and historical and scenic values of the National Petroleum 
Reserve in Alaska from significantly adverse effects of oil and gas 
activities on the surface resources of the Reserve and assuring maximum 
protection of significant resource values in Special Areas pursuant to 
and consistent with the provisions of the Naval Petroleum Reserves 
Production Act of 1976 (90 Stat. 303; 42 U.S.C. 6501 et seq.), Alaska 
National Interest Lands Conservation Act (94 Stat. 2371, 16 U.S.C. 3101 
et seq.), and other applicable authorities.


Sec.  2361.3  Authority.

    The primary statutory authority for this subpart is the Naval 
Petroleum Reserves Production Act of 1976, as amended by the Department 
of the Interior Appropriations Act, Fiscal Year 1981 (Pub. L. 96-514). 
Additional authority is provided by the Federal Land Policy and 
Management Act (43 U.S.C. 1701 et seq.)--other than the land use 
planning and wilderness study requirements, which do not apply to the 
Reserve under 42 U.S.C. 6506a(c)--and the Alaska National Interest 
Lands Conservation Act (16 U.S.C. 3101 et seq.).


Sec.  2361.4  Responsibility.

    The Bureau of Land Management is responsible for the surface and 
subsurface management of the Reserve, including protecting surface 
resources from environmental degradation and assuring maximum 
protection of significant resource values in Special Areas. The Act 
authorizes the Bureau to prepare rules and regulations necessary to 
carry out surface management and protection duties.


Sec.  2361.5  Definitions.

    As used in this subpart, the term:
    Act means the Naval Petroleum Reserves Production Act of 1976 (as 
amended and codified at 42 U.S.C. 6501-6508).
    Authorized officer means any employee of the Bureau of Land 
Management who has been delegated the authority to perform the duties 
of this subpart.
    Bureau means the Bureau of Land Management (BLM).
    Co-Stewardship broadly refers to cooperative and collaborative 
engagements of Bureau land managers and Tribes related to shared 
interests in managing, conserving, and preserving natural and cultural 
resources under the primary responsibility of Federal land managers. 
Such cooperative and collaborative engagements can take a wide variety 
of forms based on the circumstances and applicable authorities in each 
case. Forms of co-stewardship may include, among other forms, sharing 
of technical expertise; combining Tribal and Bureau capabilities to 
improve resource management and advance the responsibilities and 
interests of each; and making Tribal knowledge, experience, and 
perspectives integral to the public's experience of Federal lands.
    Exploration means activities conducted on the Reserve for the 
purpose of evaluating petroleum resources, including crude oil, gases 
(including natural gas), natural gasoline, and other related 
hydrocarbons, oil shale, and the products of any such resources.
    Indigenous Knowledge (IK) means a body of observations, oral and 
written knowledge, practices, and beliefs developed by Tribes and 
Indigenous Peoples through interaction and experience with the 
environment. It is applied to phenomena across biological, physical, 
social, and cultural systems. IK can be developed over millennia, 
continues to develop, and includes understanding based on evidence 
acquired through direct contact with the environment and long-term 
experiences, as well as extensive observations, lessons, and skills 
passed from generation to generation. IK is developed by Indigenous 
Peoples including, but not limited to, Tribal Nations, American 
Indians, and Alaska Natives.

[[Page 38757]]

    Infrastructure means a permanent or semi-permanent structure or 
improvement on BLM-administered lands within the Reserve that is built 
to support commercial oil and gas activities, such as pipelines, gravel 
drilling pads, man camps, and other structures or improvements. 
Infrastructure does not include exploratory wells that are drilled in a 
single season; or construction, renovation, or replacement of 
facilities on existing gravel pads at previously disturbed sites where 
the facilities will promote safety and environmental protection. 
Additionally, infrastructure does not include: structures or 
improvements intended for use by subsistence hunters, trappers, 
fishers, berry-pickers, and other subsistence users to facilitate 
subsistence activities; construction that is ephemeral (such as snow or 
ice roads); infrastructure constructed in support of science or public 
safety; or infrastructure that will primarily be used by and provide a 
benefit to communities located within or in close proximity to the 
Reserve.
    Integrated Activity Plan (IAP) means a land use management plan 
that governs the management of all BLM-administered lands and minerals 
throughout the Reserve.
    Reserve means those lands within the National Petroleum Reserve in 
Alaska (prior to June 1, 1977, designated Naval Petroleum Reserve No. 
4) which was established by Executive order, dated February 27, 1923, 
except for tract Numbered 1 as described in Public Land Order 2344 (the 
Naval Arctic Research-Laboratory--surface estate only) dated April 24, 
1961.
    Secretary means the Secretary of the Interior.
    Significant resource value means any surface value, including 
subsistence, recreational, fish and wildlife, historical, scenic, or 
other surface value that the Bureau identifies as significant and 
supports the designation of a Special Area.
    Special Areas means areas within the Reserve identified by the 
Secretary or by statute as having significant resource values and that 
are managed to assure maximum protection of such surface values, to the 
extent consistent with the requirements of the Act for the exploration 
and production of the Reserve.
    Use authorization means a written approval of a request for use of 
land or resources.


Sec.  2361.6  Effect of law.

    (a) Subject to valid existing rights, and except as provided by the 
Department of the Interior Appropriations Act, Fiscal Year 1981 (Pub. 
L. 96-514), all lands within the exterior boundaries of the Reserve are 
reserved and withdrawn from all forms of entry and disposition under 
the public land laws, including the mining and mineral leasing laws, 
and all other acts.
    (b) Notwithstanding the provisions of paragraph (a) of this 
section, the Secretary is authorized to:
    (1) Make dispositions of mineral materials pursuant to the Act of 
July 31, 1947 (61 Stat. 681), as amended (30 U.S.C. 601), for 
appropriate use by Alaska Natives and the North Slope Borough.
    (2) Make such dispositions of mineral materials and grant such 
rights-of-way, licenses, and permits as may be necessary to carry out 
the Secretary's responsibilities under the Act.
    (3) Convey the surface of lands properly selected on or before 
December 18, 1975, by Native village corporations pursuant to the 
Alaska Native Claims Settlement Act, as amended (43 U.S.C. 1601, et 
seq.).
    (4) Grant such rights-of-way to the North Slope Borough, under the 
provisions of title V of the Federal Land Policy and Management Act of 
1976 (43 U.S.C. 1761 et seq.) or section 28 of the Mineral Leasing Act, 
as amended (30 U.S.C. 185), as may be necessary to permit the North 
Slope Borough to provide energy supplies to villages on the North 
Slope.
    (c) All other provisions of law heretofore enacted and actions 
heretofore taken reserving such lands as a Reserve shall remain in full 
force and effect to the extent not inconsistent with the Act.
    (d) To the extent not inconsistent with the Act, all other public 
land laws are applicable.


Sec.  2361.7  Severability.

    If a court holds any provision of the regulations in this part or 
their applicability to any person or circumstances invalid, the 
remainder of the regulations in this part and their applicability to 
other people or circumstances will remain unaffected.


Sec.  2361.10  Protection of surface resources.

    (a) In administering the Reserve, the Bureau must protect surface 
resources by adopting whatever conditions, restrictions, and 
prohibitions it deems necessary or appropriate to mitigate reasonably 
foreseeable and significantly adverse effects of proposed oil and gas 
activities. Such conditions, restrictions, or prohibitions may involve 
conditioning, delaying action on, or denying some or all aspects of 
proposed oil and gas activities, and will fully consider community 
access and other infrastructure needs, after consultation with the 
North Slope Borough and consistent with Sec.  2361.6.
    (b) The Bureau will use the following procedures to protect surface 
resources from the reasonably foreseeable and significantly adverse 
effects of proposed oil and gas activities:
    (1) The Bureau will maintain an Integrated Activity Plan (IAP) 
addressing management of all BLM-administered lands and minerals 
throughout the Reserve. When issuing a use authorization, the 
authorization must conform to the IAP and this subpart, including any 
subsequent designation or modifications of Special Areas. To the extent 
there is any inconsistency between the IAP and this subpart, this 
subpart governs;
    (2) In each decision concerning proposed activity in the Reserve, 
the authorized officer will document consideration of, and adopt 
measures to mitigate, reasonably foreseeable and significantly adverse 
effects on fish and wildlife, water, cultural, paleontological, scenic, 
and any other surface resource. The authorized officer will take 
particular care to account for, and mitigate adverse effects on, 
surface resources that support subsistence uses and needs; and
    (3) In assessing effects of a decision concerning proposed activity 
in the Reserve, the authorized officer will document consideration of 
any uncertainty concerning the nature, scope, and duration of potential 
effects on surface resources of the Reserve and shall ensure that any 
conditions, restrictions, or prohibitions on proposed oil and gas 
activities account for and reflect any such uncertainty.
    (c) When affected surface resources are located in a Special Area, 
the authorized officer must comply with the procedures and requirements 
of Sec. Sec.  2361.20 through 2361.60.
    (d) The authorized officer must include in each decision and 
authorization related to proposed oil and gas activity in the Reserve 
such terms and conditions that provide the Bureau with sufficient 
ability to fully implement the requirements of this subpart.
    (e)(1) To the extent consistent with the requirements of the Act, 
other applicable law, and the terms of any applicable existing 
authorization, and after consultation with appropriate Federal, State, 
and local agencies, federally recognized Tribes, and Alaska Native 
Claims Settlement Act corporations, the authorized officer may limit, 
restrict, or prohibit the use of or access to lands within the Reserve,

[[Page 38758]]

including Special Areas. Upon proper notice, as determined by the 
authorized officer, such actions may be taken to protect fish and 
wildlife breeding, nesting, spawning, lambing or calving, or 
migrations; subsistence uses and resources; and other environmental, 
scenic, or historic values.
    (2) The consultation requirement in paragraph (e)(1) of this 
section is not required when the authorized officer determines that 
emergency measures are required.
    (f) No site, structure, object, or other values of historical, 
cultural, or paleontological character, including, but not limited to, 
historic and prehistoric remains, fossils, and artifacts, shall be 
injured, altered, destroyed, or collected without authorization under 
an appropriate Federal permit and without compliance with applicable 
law governing cultural items, archaeological resources, and historic 
properties.


Sec.  2361.20  Existing Special Areas.

    Any lands within the Reserve designated as a Special Area as of 
June 6, 2024, will continue to be managed as a Special Area except as 
modified pursuant to Sec.  2361.30, including:
    (a) Colville River Special Area. The Colville River Special Area 
encompasses the area within the boundaries depicted on maps that are 
published as of June 6, 2024, and available for public inspection at 
the Arctic District Office. The Colville River Special Area shall be 
managed to assure maximum protection of the following significant 
resource values, as well as additional values identified through the 
process set forth in Sec.  2361.30:
    (1) Important habitat for raptor species, including, but not 
limited to, the Arctic peregrine falcon;
    (2) Important habitat for other bird species, including, but not 
limited to, neotropical migratory birds, shorebirds, loons, waterfowl, 
inland dwelling sea birds, and passerines;
    (3) Important habitat for moose;
    (4) Important habitat for fish;
    (5) Important subsistence activities;
    (6) Important recreational activities;
    (7) World-class paleontological deposits; and
    (8) Significant cultural resources, including numerous sites from 
the prehistoric and historic eras.
    (b) Kasegaluk Lagoon Special Area. The Kasegaluk Lagoon Special 
Area encompasses the area within the boundaries depicted on maps that 
are published as of June 6, 2024, and available for public inspection 
at the Arctic District Office. The Kasegaluk Lagoon Special Area shall 
be managed to assure maximum protection of the following significant 
resource values, as well as additional values identified through the 
process set forth in Sec.  2361.30:
    (1) Important habitat for marine mammals;
    (2) Unique ecosystem for the Arctic Coast;
    (3) Opportunities for primitive recreational experiences;
    (4) Important habitat for migratory birds; and
    (5) Important subsistence activities.
    (c) Peard Bay Special Area. The Peard Bay Special Area encompasses 
the area within the boundaries depicted on maps that are published as 
of June 6, 2024, and available for public inspection at the Arctic 
District Office. The Peard Bay Special Area shall be managed to assure 
maximum protection of the following significant resource values, as 
well as additional values identified through the process set forth in 
Sec.  2361.30:
    (1) Haul-out areas and nearshore waters for marine mammals; and
    (2) High-use staging and migration areas for shorebirds and 
waterbirds.
    (d) Teshekpuk Lake Special Area. The Teshekpuk Lake Special Area 
encompasses the area within the boundaries depicted on maps that are 
published as of June 6, 2024, and available for public inspection at 
the Arctic District Office. The Teshekpuk Lake Special Area shall be 
managed to assure maximum protection of the following significant 
resource values, as well as additional values identified through the 
process set forth in Sec.  2361.30:
    (1) Important nesting, staging, and molting habitat for a large 
number of migratory and other waterbirds;
    (2) Important caribou habitat;
    (3) Important shorebird habitat;
    (4) Subsistence hunting and fishing activities;
    (5) Pik Dunes; and
    (6) Overwintering habitat for fish.
    (e) Utukok River Uplands Special Area. The Utukok River Uplands 
Special Area encompasses the area within the boundaries depicted on 
maps that are published as of June 6, 2024, and available for public 
inspection at the Arctic District Office. The Utukok River Uplands 
Special Area shall be managed to assure maximum protection of the 
following significant resource values, as well as additional values 
identified through the process set forth in Sec.  2361.30:
    (1) Important habitat for the Western Arctic Caribou Herd;
    (2) Subsistence hunting activities;
    (3) Grizzly bear habitat; and
    (4) Important wilderness values.


Sec.  2361.30  Special Areas designation and amendment process.

    (a) In designating, de-designating, or otherwise changing 
boundaries or management of Special Areas, the authorized officer must:
    (1) Rely on the best available scientific information, including 
Indigenous Knowledge, as well as the best available information 
concerning subsistence uses and resources within the Reserve;
    (2) Provide the public and interested stakeholders with notice of, 
and meaningful opportunities to participate in, the evaluation process;
    (3) Consult with any federally recognized Tribes and Alaska Native 
Claims Settlement Act corporations that use the affected Special Area 
for subsistence purposes or have historic, cultural, or economic ties 
to the Special Area; and
    (4) In designating, de-designating, or otherwise changing 
boundaries of Special Areas, base their decisions solely on the 
presence or absence of significant resource values and not the 
existence of measures that have been or may be adopted to protect or 
otherwise administer those values.
    (b) The Bureau must evaluate lands within the Reserve for the 
presence of significant subsistence, recreational, fish and wildlife, 
historical, or scenic values and shall designate lands as Special Areas 
containing such values in accordance with the following procedures:
    (1) Every 10 years, or sooner if the authorized officer determines 
that changing conditions warrant, the authorized officer must evaluate 
and determine whether to:
    (i) Designate new Special Areas;
    (ii) Expand existing Special Areas;
    (iii) Recognize the presence of additional significant resource 
values in existing Special Areas; or
    (iv) Require additional measures or strengthen existing measures to 
assure maximum protection of significant resource values within 
existing Special Areas.
    (2) The authorized officer may, but is not required to, conduct the 
evaluation and otherwise designate and amend Special Areas through 
amendment of the IAP.
    (3) The authorized officer must provide the public and interested 
stakeholders with the opportunity to recommend lands that should be 
considered for designation as a Special Area, significant resource 
values that the authorized officer should consider recognizing for 
existing Special Areas, and measures that the authorized officer should 
consider requiring to assure

[[Page 38759]]

maximum protection of significant resource values within Special Areas. 
The authorized officer will evaluate and respond to recommendations 
that are made in completing its evaluation. Such recommendations should 
identify and describe:
    (i) The size and location of the recommended lands;
    (ii) The significant resource values that are present within or 
supported by the recommended lands;
    (iii) Measures that may be necessary to assure maximum protection 
of those values; and
    (iv) Any other pertinent information.
    (4) If, at any point after receipt of an internal or external 
recommendation, the authorized officer determines that interim measures 
are required to assure maximum protection of significant resource 
values in lands under consideration for designation as a new or 
modified Special Area, the authorized officer may implement such 
measures that are consistent with the governing management 
prescriptions in the IAP during the period for which the lands remain 
under consideration; provided, however, that the authorized officer 
will provide public notice that interim measures are in place and such 
measures will be reassessed to determine if they are still needed if 
they remain in place for more than 5 years.
    (5) When the authorized officer designates lands as Special Areas 
or recognizes the presence of additional significant resource values in 
existing Special Areas, the authorized officer must adopt measures to 
assure maximum protection of significant resource values. Such measures 
are not constrained by the provisions of the current IAP. Once adopted, 
these measures supersede inconsistent provisions of the IAP then in 
effect for the Reserve and will be incorporated into the IAP during the 
next revision or amendment.
    (6) For any lands designated as a Special Area, the authorized 
officer will publish a legal description of those lands in the Federal 
Register, along with a concise summary of the significant resource 
values that support the designation. The Bureau will also maintain a 
map of the Special Area on its website and available for public 
inspection at the Arctic District Office.
    (c) The Bureau may not remove lands from the Teshekpuk Lake and 
Utukok River Uplands Special Areas unless directed to do so by statute. 
The Bureau may remove lands within other Special Areas only when all of 
the significant resource values that support the designation are no 
longer present. When determining whether to remove lands from a Special 
Area designation, the authorized officer must:
    (1) Prepare a summary of its proposed determination, including the 
underlying factual findings;
    (2) Provide the public and interested stakeholders with the 
opportunity to review and comment on the proposed determination; and
    (3) Issue a determination that documents how the views and 
information provided by the public, federally recognized Tribes, Alaska 
Native Claims Settlement Act corporations, federally qualified 
subsistence users, and other interested stakeholders have been 
considered.


Sec.  2361.40  Management of oil and gas activities in Special Areas.

    The management priority within Special Areas is to assure maximum 
protection of significant resource values, consistent with the 
requirements of the Act for exploration and production of the Reserve. 
The Bureau must fulfill this duty at each stage in the decision-making 
process for oil and gas activities in the Reserve, and in accordance 
with the following procedures:
    (a) The authorized officer must, to the extent consistent with the 
Act, take such steps as are necessary to avoid the adverse effects of 
proposed oil and gas activities on the significant resource values of 
Special Areas. This includes, but is not limited to, conditioning, 
delaying action on, or denying proposals for activities, either in 
whole or in part, and ensuring that leasing and production is approved 
only subject to the provisions of this section.
    (b) The authorized officer will identify and adopt maximum 
protection measures for each significant resource value that is present 
in a Special Area when Special Areas are designated. The authorized 
officer will update maximum protection measures as appropriate 
thereafter, including in the IAP, lease terms, and permits to conduct 
oil and gas activities.
    (c) Maximum protection may include, but is not limited to, 
requirements for:
    (1) Rescheduling activities, including specifying rates of 
development, and requiring use of alternative routes;
    (2) Limiting new infrastructure and roads;
    (3) Limiting extraction of sand and gravel or withdrawal of water;
    (4) Limiting types of vehicles and loadings;
    (5) Limiting types of aircraft in combination with minimum flight 
altitudes and distances from identified places; and
    (6) Applying special fuel handling procedures.
    (d) Subject to any revisions made pursuant to Sec.  2361.30, oil 
and gas leasing and authorization of new infrastructure in Special 
Areas will conform to the land use allocations and restrictions 
identified on the maps published as of June 6, 2024, and available for 
public inspection at the Arctic District Office.
    (e) On lands within Special Areas that are allocated as closed to 
leasing or unavailable to new infrastructure, certain uses may be 
authorized under limited circumstances:
    (1) The authorized officer may issue oil and gas leases in Special 
Areas if drainage is occurring. Any lease issued for drainage purposes 
will include provisions that prohibit surface-disturbing oil and gas 
activities on the entire lease tract.
    (2) The authorized officer may approve new roads, pipelines, 
transmission lines, and other types of infrastructure in Special Areas 
provided that:
    (i) The infrastructure will primarily be used by and provide a 
benefit to communities located within or in close proximity to the 
Reserve or will support subsistence activities; and
    (ii) Appropriate measures are adopted to assure maximum protection 
of significant resource values.
    (3) The authorized officer may approve new permanent infrastructure 
related to existing oil and gas leases only if such infrastructure is 
necessary to comport with the terms of a valid existing lease.
    (f) On lands within Special Areas that are allocated as available 
for future oil and gas leasing or new infrastructure, the authorized 
officer will presume that proposed oil and gas activities should not be 
permitted unless specific information available to the authorized 
officer clearly demonstrates that those activities can be conducted 
with no or minimal adverse effects on significant resource values or 
unless they are necessary to comport with the terms of a valid existing 
lease.
    (g) When preparing an environmental analysis of proposed leasing, 
exploration, development, or new infrastructure in Special Areas, and 
reaching a final decision, the authorized officer will:
    (1) Provide the public with a meaningful opportunity to review and 
comment, and consider and respond to any relevant comment they receive;
    (2) Consult with federally recognized Tribes and Alaska Native 
Claims Settlement Act corporations that use the affected Special Area 
for subsistence purposes or have historic, cultural, or economic ties 
to the Special Area;

[[Page 38760]]

    (3) Evaluate potential adverse effects and measures to avoid, 
minimize, or otherwise mitigate such effects to achieve maximum 
protection of significant resource values;
    (4) Document how the proposal falls within one of the exceptions in 
paragraph (e) of this section or the justification for overcoming the 
presumption in paragraph (f) of this section, such as if the proposed 
infrastructure is necessary to comport with the terms of a valid 
existing lease, or if it will primarily be used by and provide a 
benefit to communities located within or in close proximity to the 
Reserve, and the proposal has been conditioned to avoid, minimize, or 
otherwise mitigate adverse effects;
    (5) Document and consider any uncertainty concerning the nature, 
scope, and duration of potential adverse effects on significant 
resource values of Special Areas and ensure that any actions taken to 
avoid, minimize, or mitigate such effects account for and reflect any 
such uncertainty; and
    (6) Prepare a Statement of Adverse Effect, if the authorized 
officer determines that the proposal cannot avoid adverse effects on 
significant resource values in a Special Area. The Statement of Adverse 
Effect will describe the:
    (i) Significant resource values that may be adversely affected;
    (ii) Nature, scope, and duration of those adverse effects;
    (iii) Measures the Bureau evaluated to avoid the adverse effects, 
including whether any practicable alternatives exist that would have 
less adverse impact on significant resource values of the Special Area;
    (iv) Justification for not requiring those measures;
    (v) Measures the authorized officer will require to minimize, to 
the maximum extent possible, adverse effects on significant resource 
values of the Special Area; and
    (vi) Measures the authorized officer will require to mitigate any 
residual adverse effects that cannot be avoided or minimized, including 
compensatory mitigation, along with an explanation of how those 
measures will assure maximum protection of significant resource values.
    (h) The authorized officer must include in each decision and 
authorization related to oil and gas activity in the Reserve terms and 
conditions that provide the authorized officer with sufficient 
authority to fully implement the requirements of this section.


Sec.  2361.50  Management of subsistence uses within Special Areas.

    (a) The Bureau will ensure that Special Areas are managed to 
protect and support fish and wildlife and fish and wildlife habitat and 
associated subsistence use of such areas by rural residents as defined 
in 50 CFR 100.4.
    (b) The Bureau will provide reasonable access to and within Special 
Areas for subsistence purposes.


Sec.  2361.60  Co-stewardship opportunities in management of Special 
Areas and subsistence.

    In accordance with the Bureau's co-stewardship guidance, the Bureau 
will seek opportunities to engage federally recognized Tribes in co-
stewardship for management of Special Areas and subsistence resources 
throughout the Reserve. Co-stewardship opportunities may include co-
management, collaborative and cooperative management, and tribally led 
stewardship, and can be implemented through cooperative agreements, 
memoranda of understanding, self-governance agreements, and other 
mechanisms. The Bureau may also partner with Alaska Native Claims 
Settlement Act corporations, local governments, or organizations as 
provided by law.


Sec.  2361.70  Use authorizations.

    (a) Use authorizations must be obtained from the authorized officer 
prior to any use within the Reserve. Only uses that are consistent with 
the purposes and objectives of the Act and this subpart will be 
authorized.
    (b) Except as may be limited, restricted, or prohibited by the 
authorized officer, use authorizations are not required for:
    (1) Subsistence uses (e.g., hunting, fishing, and berry-picking); 
and
    (2) Non-commercial recreational uses (e.g., hunting, fishing, 
backpacking, and wildlife observation).
    (c) Applications for use authorizations shall be filed in 
accordance with applicable regulations in this chapter. In the absence 
of such regulations, the authorized officer may consider and act upon 
applications for uses allowed under the Act.
    (d) In addition to other statutory or regulatory requirements, 
approval of applications for use authorizations shall be subject to 
such terms and conditions as the authorized officer determines to be 
necessary to protect the environmental, subsistence, recreational, fish 
and wildlife, historical, and scenic values of the Reserve and to 
assure maximum protection of significant resource values within Special 
Areas.


Sec.  2361.80  Unauthorized use and occupancy.

    Any person who violates or fails to comply with regulations of this 
subpart is subject to prosecution, including trespass and liability for 
damages, pursuant to the appropriate laws.

Subpart 2362 [Reserved]

[FR Doc. 2024-08585 Filed 5-6-24; 8:45 am]
BILLING CODE 4331-29-P