# Management and Protection of the National Petroleum Reserve in Alaska > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2024-08585 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** May 7, 2024 - **Citation:** 89 FR 38712 ## Text 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 jtichenor@blm.gov with a subject line of “RIN 1004-AE95.” For questions relating to regulatory process issues, contact Faith Bremner at fbremner@blm.gov. 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 (Iñupiat 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 (Ukpeaġvik Iñupiat 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 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 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 Qupałuk 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 Iñupiat 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, Iñupiat 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 Iñupiaq 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 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 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, Iñupiat Community of the Arctic Slope, National Park Service, North Slope Borough, State of Alaska, and U.S. Fish and Wildlife Service. During the IAP/EIS process, the BLM consulted with: • Tribes as required by a Presidential Executive Memorandum dated April 29, 1994; • Communities, Tribal organizations, and Native corporations on the North Slope; • The U.S. Fish and Wildlife Service and the National Oceanic and Atmospheric Administration—Fisheries pursuant to the Endangered Species Act; and • Alaska's State Historic Preservation Office pursuant to the National Historic Preservation Act. Pursuant to Alaska National Interest Lands Conservation Act (ANILCA) section 810(a)(1) and (2), the BLM also conducted hearings in North Slope communities to gather comments regarding potential impacts to subsistence use resulting from the alternatives considered in the IAP/EIS. 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 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 § 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 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; Ukpeaġvik Iñupiat Corporation (UIC); Arctic Slope Regional Corporation (ASRC); and Iñupiat 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 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 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 Iñupiat of the North Slope, “cultural resources are not merely places or things but also provide a link between North Slope history, Iñupiat 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 Iñupiat.” 5 Contemporary Iñupiaq values, including respect for nature, hunting traditions, and family and kinship, are “inextricably linked with all facets of Iñupiaq 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 Iñupiaq people's relationship to the land is characterized by . . . subsistence traditions . . . ; thus, to the Iñupiat, protecting traditional lands and waters and the wild resources that inhabit them is essential to maintaining cultural traditions, knowledge, and identity. Today, the Iñupiat 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. 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 § 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 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. 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 §  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 § 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 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 § 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 § 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 § 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 § 2361.0-1 is redesignated to §  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 §  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 § 2361.1 Commenters expressed support for the proposed revisions to § 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 § 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 § 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 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 § 2361.0-2 states the objectives of the regulations. The BLM proposed to remove this section because the proposed revision of § 2361.1 would make it redundant. Public Comments on Existing § 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 § 2361.0-2 was removed because the proposed rule's revision of § 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 § 2361.0-2 from the regulations. Section 2361.3—Authority Existing and Proposed Regulations Existing § 2361.0-3 is redesignated to § 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 § 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 § 2361.0-4 is redesignated to § 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 § 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 § 2361.0-4 uses the term “environmental degradation,” and the use of this term in § 2361.0-4 is consistent with the BLM's duties and obligations under applicable laws, including the NPRPA, FLPMA, and ANILCA. 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 § 2361.0-5 is redesignated to § 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 § 2361.5 Comment: Commenters provided a general statement of support for § 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 § 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. 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 (§ 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, § 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 § 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 § 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.” 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 o [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2024-08585. Public record. Not legal advice.