Title 50—Wildlife and Fisheries--Volume 1
PART 37—GEOLOGICAL AND GEOPHYSICAL EXPLORATION OF THE COASTAL PLAIN, ARCTIC NATIONAL WILDLIFE REFUGE, ALASKA
§ 37.1   Purpose.
These regulations implement the requirement of section 1002(d) of the Alaska National Interest Lands Conservation Act, 94 Stat. 2450, as amended, 16 U.S.C. 3142(d), that the Secretary establish guidelines governing surface geological and geophysical exploration for oil and gas within the coastal plain of the Arctic National Wildlife Refuge. Section 1002 mandates an oil and gas exploration program for the refuge's coastal plain. The program shall culminate in a report to Congress which contains, among other things, the identification of those areas within the coastal plain that have oil and gas production potential, an estimate of the volume of oil and gas concerned, the description of the wildlife, its habitat, and other resources that are within the areas identified, and an evaluation of the adverse effects that the carrying out of further exploration for, and the development and production of, oil and gas within such areas will have on the refuge's resources. It is the objective of this program to ascertain the best possible data and information concerning the probable existence, location, volume, and potential for further exploration, development, and production of oil and gas within the coastal plain without significantly adversely affecting the wildlife, its habitat, or the environment and without unnecessary duplication of exploratory activities. These regulations prescribe the requirements and procedures for obtaining authorization for and the conduct of such exploratory activities, and for submitting to the Department the resulting data and information. These regulations also describe other matters relating to the administration of the program.
§ 37.2   Definitions.
The following definitions are applicable to the sections of this part.
(a) Act means section 1002 of the Alaska National Interest Lands Conservation Act, 94 Stat. 2449, as amended by section 110 of Pub. L. 97-394, 96 Stat. 1982, 16 U.S.C. 3142.
(b) Adequate protective cover means snow or a frostline, or both, sufficient to protect the vegetation and soil from significant adverse effects due to the operation of surface equipment, as determined by the Regional Director.
(c) Coastal lagoons means the waters and submerged lands between the mainland and the offshore barrier islands that lie between Brownlow Point and the Aichilik River within the coastal plain.
(d) Coastal plain means that area shown on the map entitled “Arctic National Wildlife Refuge”, dated August 1980, and legally described in appendix I of this part.
(e) Cultural resource means any district, site, building, structure, or object significant in American history, architecture, archeology, engineering or culture, as determined in accordance with 36 CFR 60.6.
(f) Department means the Department of the Interior and any of its component bureaus and offices.
(g) Director means the Director of the U.S. Fish and Wildlife Service of his authorized representative.
(h) Exploration plan means the way in which a program of exploratory activities is proposed to be arranged and carried out.
(i) Exploratory activities means surface geological exploration or seismic exploration or both of the coastal plain and all related activities and logistics required for either or both, and any other type of geophysical exploration of the coastal plain which involves or is a component of an exploration program for the coastal plain involving surface use of refuge lands and all related activities and logistics required for such exploration.
(j) Harass means to pursue, hunt, take, capture, molest, collect, harm, shoot or kill or attempt to engage in any of the preceding by either intentional or negligent act or omission.
(k) Hazardous substances means petroleum, petroleum products, toxic materials, chemical effluent, explosives, or other materials which are likely to cause significant adverse effects to the refuge's wildlife, its habitat, the environment, or humans.
(l) Permittee means the person authorized by a special use permit issued pursuant to this part to conduct exploratory activities on the coastal plain; any official, employee, contractor, subcontractor or agent of the permittee or of the permittee's designee; and any participant to the permittee's permit.
(m) Person means any individual, partnership, firm, corporation, association, organization, or agency.
(n) Plan of operation means detailed procedures, covering a period not to exceed 12 months, proposed for executing an exploration plan.
(o) Processed, analyzed and interpreted data or information means any data or information which results from any subsequent modification, processing, analysis, or interpretation of raw data and information by human or electronic means, on or off the refuge.
(p) Raw data and information means all original observations and recordings in written or electronic form and samples obtained during field operations.
(q) Refuge means the Arctic National Wildlife Refuge.
(r) Regional Director means the Regional Director, Region 7 of the U.S. Fish and Wildlife Service, or his authorized representative.
(s) Rehabilitation means the act of returning the landform and vegetation to as near its original shape and condition as practicable, as determined by the Regional Director.
(t) Secretary means the Secretary of the Interior or his authorized representative.
(u) Service means the U.S. Fish and Wildlife Service.
(v) Solicitor means the Solicitor of the Department of the Interior or his authorized representative.
(w) Special use permit means a revocable, nonpossessory privilege issued in writing by the Regional Director and authorizing the permittee to enter and use the refuge for a specified period to conduct exploratory activities, and other activities necessary thereto.
(x) Support facilities means facilities on or near the refuge used to provide logistical support for the field exploratory activities.
(y) Third party means any person other than a representative of the permittee or the United States government.
(z) Waste means all material for discard from exploratory activities. It includes, but is not limited to, human waste, trash, garbage, refuse, fuel drums, shot wire, survey stakes, explosives boxes, ashes, and functional and nonfunctional equipment.
(aa) Wildlife means fish or wildlife or both.
§ 37.3   Other applicable laws.
(a) Nothing in this part shall be construed to relieve a permittee or any person from complying with any applicable federal laws or any applicable state and local laws, the requirements of which are not inconsistent with this part.
(b) Until the litigation between the United States and the State of Alaska over title to the submerged lands of the coastal lagoons, “United States v. Alaska”, Sup. Ct., No. 84, Orig. (1979), is resolved, the permittee shall satisfy both federal and state requirements for conducting oil and gas exploration in the coastal lagoons. In the event of an inconsistency between such requirements the permittee shall satisfy that requirement which provides the greatest environmental protection.
§ 37.4   Disclaimer and disqualification.
(a) Authorization granted under this part to conduct exploratory activities shall not confer a right to any discovered oil, gas, or other mineral in any manner.
(b) Any person who obtains access pursuant to § 37.54 to data and information obtained as a result of carrying out exploratory activities shall be disqualified from obtaining or participating in any lease of the oil and gas to which such data and information pertain. Any person who obtains access to data and information obtained as a result of carrying out exploratory activities from any person other than the permittee who obtained such data and information shall be disqualified from obtaining or participating in any lease of the oil and gas to which such data and information pertain.
§ 37.11   General standards for exploratory activities.
(a) No exploratory activities shall be conducted without a special use permit. Requirements and procedures for obtaining a special use permit are prescribed in §§ 37.21 through 37.23.
(b) Exploratory activities shall be conducted so that they do not:
(1) Significantly adversely affect the refuge's wildlife, its habitat, or the environment;
(2) Unnecessarily duplicate exploratory activities of the permittee or another permittee; and
(3) Unreasonably or significantly interfere with another permittee's activities.
(c) Reexamination of an area may be permitted by the Regional Director if necessary to correct data deficiencies or to refine or improve data or information already gathered.
(d) Drilling of exploratory wells is prohibited.
§ 37.12   Responsibilities of permittee.
(a) The permittee shall comply and shall be responsible for the compliance of its officials, employees, contractors, subcontractors and agents with the regulations of this part, the terms and conditions of its special use permit, the provisions of its approved exploration plan and plan or operation, and all reasonable stipulations, demands and orders issued by the Regional Director. All actions by the permittee inconsistent with this part are prohibited.
(b) The permittee shall designate a general representative who shall be the person primarily accountable for managing the permittee's authorized activities, and a field representative who shall be the person primarily accountable for supervising the permittee's field operations, and their alternates. The Regional Director shall be informed of the names, addresses, and telephone numbers of the persons designated pursuant to this paragraph and of the procedures for contacting them on a 24-hour basis, including the radio frequency for field operations, at the time the permittee submits its first plan of operation pursuant to § 37.24. The permittee shall notify the Regional Director promptly of any changes in such personnel or the procedures for contacting them.
(c) Field operations shall be conducted by the permittee or a designee approved by the Regional Director. Assignment of a designee shall be in a manner and form acceptable to the Regional Director. The Regional Director shall approve or disapprove a permittee's designee within 30 days following the receipt of such information as the Regional Director may require from the permittee and designee in order to reach his decision. Acceptance of a designee to act for the permittee in matters relating to the conduct of exploratory activities does not relieve the permittee of responsibility for compliance with applicable laws, its special use permit, exploration plan, plan of operation, and all reasonable stipulations, demands and orders of the Regional Director. The designee will be considered the agent of the permittee and will be responsible for complying fully with the obligations of the permittee. The serving of stipulations, demands, orders, and notices on the permittee's designee, when delivered personally or by radio or mail, will be deemed to be service upon the permittee. The permittee shall notify the Regional Director in writing when assignment of a designee has been cancelled. A designee cannot reassign its designation to another party. The permittee or designee shall notify the Regional Director 10 working days in advance of its intention to commence field operations for each season that it conducts exploratory activities.
(d) The permittee shall submit to the Regional Director 30 days prior to the commencement of field operations for each year covered by its exploration plan an updated list of the names and addresses of all persons participating in the exploratory activities covered thereby or sharing in the data and information resulting therefrom through a cost-sharing or any other arrangement.
(e) The permittee shall perform operations and maintain equipment in a safe and workmanlike manner. The permittee shall take all reasonable precautions necessary to provide adequate protection for the health and safety of life and the protection of property and to comply with any health and safety requirements prescribed by the Regional Director.
§ 37.13   Group participation.
(a) To avoid unnecessary duplication of exploratory activities, the permittee shall, if ordered by the Regional Director, afford all interested persons, through a signed agreement, an opportunity to participate in its exploratory activities. Within 60 days following such order, the permittee shall provide evidence satisfactory to the Regional Director of its compliance therewith. The permittee shall provide the Regional Director with the names and addresses of all additional participants, as they join.
(b) If, with the approval of the Regional Director, the permittee at any time changes any provisions of its approved exploration plan relating to areal extent, intensity of exploratory activities, or logistical support, and the Regional Director determines such changes to be significant, the Regional Director may require the permittee to afford all interested persons another opportunity to participate in the permitted exploratory activities in accordance with paragraph (a) of this section.
(c) The requirements of this section do not preclude the permittee from initiating field operations as authorized under its special use permit.
(d) All participants shall be bound by the regulations of this part, the permittee's special use permit, approved exploration plan and plan of operation and any reasonable stipulations, demands and orders issued by the Regional Director.
§ 37.14   Bonding.
(a) Before the issuance of its special use permit, any applicant whose exploration plan has been approved under § 37.22 shall furnish to the Service a surety bond of not less than $100,000, or other security satisfactory to the Service, to secure performance of its exploration plan and plan(s) of operation and compliance with the permit and this part. Such surety bond shall be issued by qualified surety companies approved by the Department of the Treasury (see Department of the Treasury Circular No. 570). Such bond shall be maintained by the permittee for the benefit of the Service until the Regional Director notifies the permittee in writing that all terms and conditions of its exploration plan, special use permit, plan of operation, and this part have been met or otherwise consents to its cancellation or termination. Any bond furnished or maintained by a person under this section shall be on a form approved or prescribed by the Regional Director. The Regional Director may require an increase in the amount of any bond or other security to be furnished and any outstanding bond or security or require a new bond or security whenever additional coverage is needed to secure performance of its exploration plan and plan(s) of operation and compliance with the permit and this part or is needed as a consequence of default.
(b) Whenever a permittee's exploration plan, plan of operation, or special use permit is revised or modified, the permittee shall provide to the Regional Director within 30 days thereafter an acknowledgement by the surety that its bond continues to apply to the exploration plan, plan of operation or special use permit, as revised or modified, unless a waiver of notice to the surety is contained in the bond or the surety is not otherwise released by the revision or modification, or unless the permittee provides to the Service an increased or additional bond.
(c) Recovery of the amount specified in the permittee's bond or other security shall not preclude the Department from seeking specific performance by the permittee of any obligations not satisfied by enforcement of the bond or security, or compensation for any damages, losses or costs due to the permittee's activities which exceed the amount recovered, by pursuing the Department's legal remedies.
§ 37.21   Application requirements.
(a) Prior to submitting an exploration plan, applicants may meet with the Regional Director to discuss their proposed plans and exploratory activities and the requirements of this part.
(b) Any person wanting to conduct exploratory activities may apply for a special use permit by submitting for approval one or more written exploration plans, in triplicate, to the Regional Director, Region 7, U.S. Fish and Wildlife Service, 1011 East Tudor Road, Anchorage, Alaska 99503. To be considered, exploration plans covering the period from the inception of the program through May 31, 1986, or any portions thereof, must be received by the Regional Director during normal business hours on May 20, 1983; exploration plans covering exploratory activities other than seismic exploration for the period from June 1, 1984, through May 31, 1986, or any portions thereof, must be received by the Regional Director during normal business hours on April 2, 1984; and exploration plans covering, but not limited to, seismic exploration for the period from October 1, 1984, through May 31, 1986, or any portions thereof, must be received by the Regional Director during normal business hours on June 4, 1984.
(c) In addition to containing the information required in paragraph (d) of this section, any exploration plan submitted shall describe the applicant's plan for carrying out an integrated program of exploratory activities in such a manner as will satisfy the objective and limitations stated in § 37.1. If an applicant submits an exploration plan on May 20, 1983 with the intention of submitting another exploration plan on March 1, 1984, the applicant shall describe in its initial plan how its future exploratory activities will be integrated with those proposed under its initial plan. Any applicant submitting an exploration plan on May 20, 1983 which incorporates preliminary field investigations and/or surface geological exploration proposed to commence before August 1, 1983 may submit a written request to the Regional Director for an expedited review and approval of that portion of the exploration plan covering such preliminary investigations and/or exploration. Each exploration plan submitted must be published and be the subject of a public hearing in accordance with requirements of § 37.22(b).
(d) An exploration plan shall set forth in general terms such information as is required by this part and by the Regional Director in determining whether the plan is consistent with this part, including, but not limited to:
(1) The name and address of any person who will conduct the proposed exploratory activities, i.e. , the applicant/permittee, and, if that person is an agency, firm, corporation, organization, or association, the names and addresses of the responsible officials, or, if a partnership, the names and addresses of all partners;
(2) The names and addresses of all persons planning at the time of plan submittal to participate in the proposed exploratory activities or share in the data and information resulting therefrom through a cost-sharing or any other arrangement;
(3) Evidence of the applicant's technical and financial ability to conduct integrated and well designed exploratory activities in an arctic or subarctic environment and of the applicant's responsibility in complying with any exploration permits previously held by it;
(4) A map at a scale of 1:250,000 of the geographic areas in which exploratory activities are proposed and of the approximate locations of the applicant's proposed geophysical survey lines, travel routes to and within the refuge, fuel caches, and major support facilities;
(5) A general description of the type of exploratory activities planned, including alternate exploratory methods and techniques if proposed, and the manner and sequence in which such activities will be conducted;
(6) A description of how various exploratory methods and techniques will be utilized in an integrated fashion to avoid unnecessary duplication of the applicant's own work;
(7) A schedule for the exploratory activities proposed, including the approximate dates on which the various types of exploratory activities are proposed to be commenced and completed;
(8) A description of the applicant's proposed communication technniques;
(9) A description of the equipment, support facilities, methods of access and personnel that will be used in carrying out exploratory activities;
(10) A hazardous substances control and contingency plan describing actions to be taken to use, store, control, clean up, and dispose of these materials in the event of a spill or accident;
(11) A general description of the anticipated impacts that the proposed exploratory activities may have on the refuge's wildlife, its habitat, the environment, subsistence uses and needs, and cultural resources, and a description of mitigating measures which will be implemented to minimize or avoid such impacts;
(12) A description of the proposed procedures for monitoring the environmental impacts of its operation and its compliance with all regulatory and permit requirements;
(13) A statement that, if authorized to conduct exploratory activities, the applicant shall comply with this part, its special use permit, its approved exploration plan, plan of operation, and all reasonable stipulations, demands and orders issued by the Regional Director;
(14) A description of the applicant's proposed data quality assurance and control program; and
(15) Such other pertinent information as the Regional Director may reasonably require.
§ 37.22   Approval of exploration plan.
(a) An exploration plan shall be approved by the Regional Director if he determines that it satisfies the requirements of § 37.21 (c) and (d) and is otherwise consistent with the Act and the regulations of this part. In order to meet the objective and limitations stated in § 37.1, enforce the standards stated in § 37.11(b), or minimize adverse impacts on subsistence uses, the Regional Director may approve or disapprove any exploration plan in whole or in part or may require, as a condition of approval, an applicant to conduct its exploratory activities in an assigned area or jointly with other applicants or to make such modification in its exploration plan as he considers necessary and appropriate to make it consistent with this part. No plan shall be approved if the applicant submitting it does not demonstrate to the reasonable satisfaction of the Regional Director its adequate technical and financial ability to conduct integrated and well designed exploratory activities in an arctic or subarctic environment, and a history of responsible compliance with any exploration permits that it or its responsible officials or partners may have previously held.
(b) Upon receipt of an exploration plan submitted in accordance with § 37.21(b), the Regional Director shall promptly publish notice of the application and text of the plan in the Federal Register and newspapers of general circulation in the State of Alaska. The Regional Director shall determine within 90 days after the plan is submitted whether the plan is consistent with this part. The Regional Director may extend this 90-day period for up to 30 additional days upon written notice to the applicant. Before making his determination, the Regional Director shall hold at least one public hearing in the State for the purpose of receiving public comments on the plan and may confer with the applicant whenever he deems it necessary. The Regional Director shall give the applicant written notice of his determination.
(c) Whenever the Regional Director disapproves an exploration plan in whole or in part, he shall notify the applicant in writing of the reasons for his disapproval. The applicant may request the Director to consider that which was disapproved by the Regional Director by filing a written request with the Director, U.S. Fish and Wildlife Service, Department of the Interior, Washington, DC 20240, within 30 days from the date of disapproval. Such a request shall not operate to stay the Regional Director's disapproval. The request shall:
(1) State fully the basis for the applicant's disagreement with the Regional Director's determination;
(2) Include any statement or documentation, in addition to that already submitted by the applicant with its application, which demonstrates that the applicant's exploration plan is consistent with this part; and
(3) Indicate whether or not the applicant requests an informal hearing before the Director.
(d) The Regional Director, as a condition of approval of any exploration plan under this section, shall:
(1) Require that all data and information (including processed, analyzed and interpreted information) obtained as a result of carrying out the plan shall be submitted to the Regional Director, as provided in § 37.53;
(2) Make such data and information available to the public, except that any processed, analyzed and interpreted data or information shall be held confidential by the Department for a period of not less than 10 years following the submission of such data or information to the Regional Director or 2 years following any lease sale including the area within the refuge from which the information was obtained, whichever period is longer, as provided in § 37.54; and
(3) Require that all raw data and information obtained as a result of carrying out the plan shall be made available by the permittee to any person at fair cost.
(e) In the course of evaluating an exploration plan, the Regional Director shall also evaluate the effect of the proposed exploratory activities on subsistence uses and needs, the availability for exploration of alternate areas within the coastal plain, and alternatives to the proposed activities which would reduce or eliminate the use of areas within the coastal plain needed for subsistence purposes. If the Regional Director finds that the exploration plan, if approved, would significantly restrict subsistence uses, he shall satisfy the requirement to hold a hearing on this issue by incorporating it in any hearing held pursuant to paragraph (b) of this section and shall otherwise satisfy the procedural requirements of section 810(a) of the Alaska National Interest Lands Conservation Act, 94 Stat. 2427, 16 U.S.C. 3120, before approving the plan.
§ 37.23   Special use permit.
(a) Within 45 days, or sooner if practicable, of approving an exploration plan, or portion thereof, the Regional Director shall, unless prohibited by law, issue a special use permit to authorize the permittee to proceed with those exploratory activities described and approved in its exploration plan, or portion thereof, provided that the requirements of § 37.14(a) have been satisfied. The special use permit may contain such terms and conditions and may be amended from time to time as the Regional Director deems necessary and appropriate to carry out the Act and this part.
(b) Before issuing a special use permit to authorize exploration of lands within the coastal plain allotted pursuant to the Act of May 17, 1906, 34 Stat. 197, as amended by the Act of August 2, 1956, 70 Stat. 954, or on lands within the coastal plain the surface estate in which has been selected by or conveyed to the Kaktovik Inupiat Corporation pursuant to Sections 12 and 14 of the Alaska Native Claims Settlement Act, 85 Stat. 701 and 702, 43 U.S.C. 1611 and 1613, the Regional Director shall seek the views of the holder of such approved native allotment or the Corporation for the purpose of developing permit conditions designed to mitigate the effects of such exploration on its interests.
§ 37.24   Plan of operation.
Each approved exploration plan shall be supplemented by a written plan of operation for each fiscal year, or portions thereof, covered by the exploration plan. Each plan of operation shall specify the field operations for implementing that exploration plan during the year, or portions thereof, covered by the plan of operation. Each plan of operation shall be submitted to the Regional Director at least 30 days before field operations are to be commenced thereunder, except that any plan of operation supplementing a portion of an exploration plan that received expedited review and approval pursuant to § 37.21(c) shall be submitted 10 days before field operations are to be commenced thereunder. A plan of operation shall set forth such specific information as is required by the Regional Director in determining whether the plan is consistent with the exploration plan to which it pertains and with this part. The permittee shall make such modifications in its plan of operation as are deemed at any time by the Regional Director to be necessary and appropriate to ensure such consistency. Reconsideration of the Regional Director's actions under this section may be obtained by employing the procedures described in § 37.22(c).
§ 37.25   Revision.
(a) A permittee may request the Regional Director for permission to revise its approved exploration plan. Until the Regional Director grants the permittee's request, no revision of its exploration plan shall be implemented. Such request shall be deemed to be granted on the 10th working day following its receipt unless the Regional Director denies the request; advises the permittee that the proposed revision is major and, therefore, must satisfy the publication and hearing requirements of § 37.22(b) before it can be acted upon; by timely written notice extends the period for considering the request; conditionally approves the proposed revision with such modifications as he stipulates are necessary and appropriate; or, unconditionally approves the proposed revision within a shorter period. No revision of an exploration plan shall be approved that is inconsistent with the Act or this part. Approval of any revision is subject to the conditions stated in § 37.22(d) to the extent that they are pertinent.
(b) Upon 10 working days advance notice to the Regional Director of its proposed revision, or within such lesser period as may be concurred in by the Regional Director, a permittee may implement a revision of its plan of operation, provided that such revision is consistent with the exploration plan to which the plan of operation pertains and this part. The Regional Director may require the permittee to defer, modify, or rescind such revision whenever he determines that such action is necessary and appropriate to ensure such consistency.
(c) Reconsideration of the Regional Director's actions under this section may be obtained by employing the procedures described in § 37.22(c). A request for reconsideration shall not operate to stay the Regional Director's actions unless such stay is granted in writing by the Director.
§ 37.31   Environmental protection.
(a) The permittee shall conduct operations in a manner which avoids significant adverse effects on the refuge's wildlife, its habitat, and environment. The Regional Director may impose stipulations to supplement the permittee's special use permit and issue other orders as needed to ensure that the permittee's activities are conducted in a manner consistent with this part. If, after 30 days, or in emergencies such shorter periods as shall not be unreasonable, following a demand by the Regional Director, the permittee shall fail or refuse to perform any action required by this part, its exploration plan, plan of operation, special use permit, or a stipulation or order of the Refuge Manager, the department shall have the right, but not the obligation, to perform any or all such actions at the sole expense of the permittee. Prior to making such demand, the Regional Director shall confer with the permittee, if practicable to do so, regarding the required action or actions included in the demand. Reconsideration of the Regional Director's demands under this section may be obtained by employing the procedures described in § 37.22(c). A request for reconsideration shall not operate to stay the Regional Director's demands or the Department's performance pursuant to this section unless such stay is granted in writing by the Director.
(b) Terrestrial environment. (1) Vehicles shall be operated in a manner such that the vegetative mat or soil is not significantly damaged or displaced. Blading of snow on trails or campsites shall be limited so as to maintain an adequate protective cover.
(2) Ground vehicles shall be of the type causing the least practicable harm to the surface, such as Nodwell FN-110 or FN-60 or Bombardier track vehicles, mobile camps on flexible tracks or skids, vibrator units on flexible tracks or wheels, D-7 Caterpillar tractors, or their equivalent. They shall be operated only in the winter and where there is adequate protective cover. Vehicle operation shall cease in the spring when the Regional Director determines that the protective cover is no longer adequate. Operation of ground vehicles in the summer is prohibited.
(3) Movement of equipment through riparian willow stands shall be avoided, except when approved by the Regional Director.
(4) Above ground explosive charges shall be utilized in a manner to minimize damage to the vegetative mat.
(5) Campsites may be located on lakes which are frozen throughout, including bottom sediments, on durable ground, and on lagoons which are frozen to sufficient depth to ensure safety of personnel, but shall not be located on river ice. Durable ground can include gravel or sand bars or vegetated ground with adequate protective cover.
(6) Campsites and trails shall be kept clean of waste.
(7) Gray water may be discharged to the surface provided it is filtered, disinfected, and not discharged directly into lakes and rivers.
(8) The permittee shall take all precautionary measures necessary to prevent and suppress man-caused tundra fires and shall notify the Regional Director of the occurrence of any tundra fires immediately or as soon as communication can be established.
(9) Rehabilitation of disturbed surface areas shall be accomplished by the permittee in accordance with schedules and a plan required and approved by the Regional Director. Revegetation shall be accomplished exclusively with endemic species.
(10) The permittee shall not harass wildlife in any manner, including, but not limited to, close approach by surface vehicles or aircraft. Aircraft should maintain an altitude of at least 1500 feet above ground level whenever practicable.
(11) No explosives shall be detonated within 1/2 miles of any known denning brown or polar bear or any muskoxen or caribou herd.
(12) The permittee shall operate in such a manner as not to impede or restrict the free passage and movement of large mammals, including caribou, muskoxen, moose, polar bear, and brown bear.
(13) Feeding of wildlife is prohibited. This includes the leaving of garbage or edibles in a place which would attract wildlife. Garbage shall be kept in covered animal-proof containers while awaiting incineration.
(14) Hunting, fishing, and trapping by the permittee within the refuge are prohibited during the conduct of exploratory activities. Employing firearms in defense of life and property is allowed.
(c) Aquatic environment. (1) The permittee shall not significantly alter the banks of streams, rivers, or lakes while conducting exploratory activities. Crossings of stream, river, or lake banks shall utilize a low angle approach or, if appropriate, snow bridges. If snow bridges are utilized for bank protection they shall be free of dirt and debris and shall be removed after use or prior to breakup each year, whichever occurs first.
(2) No water shall be removed from any subsurface source. Removal of water or snow cover from or compaction of snow cover on streams, rivers or lakes identified by the Regional Director as inhabited by fish shall be prohibited during the winter.
(3) To protect fish and other aquatic fauna, high explosives shall not be detonated within, beneath, on or in close proximity to fish-bearing waters unless prior drilling indicates that the water body, including its substrate, is solidly frozen. The minimum acceptable offset from fishing-bearing waters for various size charges is:
(4) All operations shall be conducted in a manner that will not impede the passage of fish, disrupt fish spawning, overwintering or nursery areas identified by the Regional Director or block or change the character or course of, or cause significant siltation or pollution of any stream, river, pond, pothole, lake, lagoon, or drainage system.
(5) Ground vehicles shall not cross active spring areas.
(d) Cultural resources. (1) Prior to implementing any plan of operation, the permittee shall obtain from the Regional Director copies of the cultural resource reconnaissance reports, maps and other available documents which identify all known cultural resource sites and areas of predicted high probability of containing cultural resources. The Regional Director may reasonably restrict or prohibit exploratory activities in these areas and, in accordance with 36 CFR part 800, thereby mitigate, minimize or avoid any adverse effects thereon.
(2) Unless otherwise specified by the Regional Director, the following prohibitions shall be in effect:
(i) No vehicle of any type shall pass over or through a known cultural resource site with standing structures; and
(ii) No seismic train shall camp on a known cultural resource site.
(3) If any exploratory activities require entry into areas known to contain historic or archeological resources, high probability areas, or areas previously unsurveyed for cultural resources, prior to the initiation of such activities, the permittee shall, if ordered by the Regional Director, locate, identify and evaluate properties eligible for listing on the National Register of Historic Places, recover for the Department historic and archeological data contained in such properties, and take other measures, as directed by the Regional Director, designed to mitigate, minimize or avoid to the extent practicable any significant adverse effects on them. Such efforts shall be done in a manner prescribed or approved by the Regional Director in accordance with a programmatic memorandum of agreement among the Service, the State Historic Preservation Officer and the Advisory Council on Historic Preservation, and without expense or liability to the Department.
(e) General. (1) All spills or leakages of any hazardous substances, fires, fatalities, and any other conditions which threaten the refuge's resources, the environment, or human safety, shall be reported by the permittee to the Regional Director immediately or as soon as communication can be established. Other notifications shall be made by the permittee as required by applicable laws.
(2) All combustible solid waste shall be incinerated or returned to the permittee's base of operations for disposal in accordance with applicable federal, state and local standards. All non-combustible solid waste, including, but not limited to, fuel drums and shot wire, shall be returned to the permittee's base of operations for disposal in accordance with applicable federal, state and local standards.
(3) No discharge of petroleum, petroleum products, or toxic materials shall be made within the refuge. All hazardous subtances utilized and/or generated in conducting exploratory activities shall be contained, controlled, and cleaned up in accordance with the permittee's approved hazardous substances control and contingency plan. Such measures shall take precedence over all other matters except human safety.
(4) Unless exigencies warrant, in any field operations employing surface geological exploration, the equipment, facilities, and personnel used within the coastal plain shall not exceed that necessary to support a maximum of 6 simultaneously operating surface geological survey crews, and in any field operations employing seismic exploration methods, the equipment, facilities, and personnel used within the coastal plain shall not exceed that necessary to support a maximum of 6 simultaneously operating seismic survey crews.
(5) No fuel storage facilities shall be placed within the annual floodplain of fish-bearing watercourses or within 100 feet of any other water body, and no vehicle refueling shall occur within such areas except when approved by the Regional Director. All fuel storage sites shall be approved by the Regional Director. Fuel containers shall be properly stored and marked with the permittee's name, type of fuel, and last date of filling. All fuel containers with a storage capacity greater than 55 gallons shall be of double-wall construction. All fuels containers, including those emptied, shall be capped when not in actual use. All fuel containers placed within the annual floodplain of fish-bearing watercourses shall be removed prior to breakup.
(6) The permittee shall not disturb or damage any geodetic land survey monuments. If any monument is disturbed or damaged, the permittee shall reestablish it in a manner acceptable to the Regional Director.
(7) The timing and location of the detonation of explosives shall be approved in advance by the Regional Director.
(8) No permanent structures or facilities will be erected within the coastal plain. The type and location of temporary structures and facilities including, but not limited to, ice airstrips, for use in support of exploratory activities must be approved by the Regional Director.
§ 37.32   Special areas.
(a) Caribou calving and post-calving special areas. The Regional Director shall designate within the coastal plain specific caribou calving and post-calving special areas which shall be closed to all exploratory activities for such periods between May 10 and July 15 of each year as those areas are determined by the Regional Director to be used for caribou calving and post-calving or both so as to ensure that exploratory activities do not significantly adversely affect calving and post-calving caribou. No exploratory activities shall be conducted in such designated areas during such periods.
(b) Muskoxen calving special areas. Whenever he deems it necessary or appropriate to ensure that exploratory activities do not significantly adversely affect calving muskoxen, the Regional Director shall designate within the following areas specific areas which shall be closed to all exploratory activities for such periods between April 15 and June 5 of each year as those areas are determined by the Regional Director to be used for muskoxen calving. No exploratory activities shall be conducted in such designated areas during such periods.
(1) One generally encompassing the Tamayariak uplands bordered on the east by the Tamayariak River, on the northwest by the Canning River, on the east by a north-south line intersecting the benchmark “Can”, and on the south by an east-west line also intersecting the benchmark “Can”.
(2) One generally encompassing the Carter Creek uplands, bordered on the east by the Sadlerochit River, on the north by the mainland coastline, on the west by Carter Creek, and on the south by an east-west line approximately six miles inland from the coastline.
(3) One generally encompassing the Niguanak hills, bordered on the east by the Angun River, on the north by the mainland coastline, on the west by a line parallel to and two miles west of the Niguanak River, crossing portions of the Okerokovik River, and extending south to the southern boundary of the coastal plain, and on the south by the southern boundary of the coastal plain.
(c) Brown bear and polar bear denning special areas. Whenever he deems it necessary or appropriate to ensure that exploratory activities do not significantly adversely affect denning bears, the Regional Director shall designate within the coastal plain brown bear and polar bear denning sites within 1/2 mile of which all exploratory activities shall be prohibited for such periods between October 1 of one year and April 30 of the following year as are prescribed by the Regional Director.
(d) Snow goose staging special areas. Whenever he deems it necessary or appropriate to ensure that exploratory activities do not significantly adversely affect staging snow geese, the Regional Director shall designate within the general area bordered on the east by the Aichilik River, on the north by the mainland coastline, on the west by the Hulahula River, and on the south by the southern boundary of the coastal plain, specific snow goose staging special areas which shall be closed to all exploratory activities during such periods between August 20 and September 10 of each year as those areas are determined by the Regional Director to be used for snow goose staging. No exploratory activities shall be conducted in such designated areas during such periods.
(e) In addition, the Regional Director may designate specific areas within the coastal plain that are important for other wildlife or that encompass lands the surface estate in which is owned by holders of approved native allotments or the Kaktovik Inupiat Corporation as special areas in which exploratory activities may be prohibited, conditioned or otherwise restricted in such manner and for such period as prescribed by the Regional Director to avoid significant adverse effects from exploratory activities.
(f) The Regional Director shall notify the permittee of the locations of designated special areas and of the applicable limitations on its exploratory activities as far in advance of the effective dates of such limitations as is possible. The Regional Director may modify or remove such designations and limitations whenever he determines that they are no longer necessary to protect the resources or values of such special areas from significant adverse effects.
(g) No exploratory activities shall be conducted by any permittee at any time within 1/2 mile of the source of the Sadleochit Spring or within 1/4 mile on either side of Sadlerochit Spring Creek for a distance of 5 miles downstream from its source.
§ 37.33   Environmental briefing.
The permittee shall provide opportunities for the Regional Director to conduct environmental and other pertinent briefings for all of its personnel involved in field operations prior to commencement of field work and periodically thereafter as the Regional Director may determine. The permittee shall require the attendance of its personnel and arrange the time and place for such briefings upon the request of the Regional Director. In addition, the permittee shall provide a copy of this part to each employee involved with its exploratory activities.
§ 37.41   Responsibilities of the Regional Director.
The Regional Director is authorized to approve and disapprove exploration plans; issue special use permits; inspect and regulate exploratory activities; require compliance with the permittee's approved exploration plan, plan of operation, this part, and other statutes and regulations under which the refuge is administered; and perform all other duties assigned to the Regional Director by this part. The Regional Director may issue written or oral stipulations, demands and orders to carry out his responsibilities, and amend and terminate them as he deems appropriate. Any oral stipulation, demand or order shall be confirmed in writing within 3 working days from its issuance.
§ 37.42   Inspection and monitoring.
The Regional Director may designate field representatives, hereinafter known as Field Monitors, to monitor the exploratory activities in the field. A Field Monitor may exercise such authority of the Regional Director as is provided by delegation, except that a Field Monitor may not revoke a permittee's special use permit, and provided that any order issued by a Field Monitor which suspends all of a permittee's field activities shall, except in emergencies, require the concurrence of the Regional Director. The Regional Director shall have a continuing right of access to any part of the exploratory activities at any time for inspection or monitoring and for any other purpose that is consistent with this part. A permittee, upon request by the Regional Director, shall furnish lodging, food, and reasonable use of its communication and surface and air transportation systems, to the Field Monitors and other representatives of the United States for the purposes of inspecting and monitoring the permittee's exploration activities in the field and for any other purpose consistent with this part. Whenever possible, the Regional Director shall give advance notice of the need for such services and facilities, including the names of persons to be accommodated.
§ 37.43   Suspension and modification.
If at any time while exploratory activities are being carried out under an approved exploration plan and special use permit, the Regional Director, on the basis of information available to him, determines that continuation of further activities under the plan or permit will significantly adversely affect the refuge's wildlife, its habitat, or the environment, or significantly restrict subsistence uses, or that the permittee has failed to comply with its approved exploration plan, plan of operation, special use permit, any reasonable stipulation, demand or order of the Regional Director, or any regulation of this part, the Regional Director may, without any expense or liability to the Department, suspend activities under the plan and/or permit for such time, or make such modifications to the plan and/or permit, or both suspend and so modify, as he determines necessary and appropriate. Such suspensions shall state the reasons therefore and be effective immediately upon receipt of the notice. Suspensions issued orally shall be followed by a written notice confirming the action within 3 days, and all written notices will be sent by messenger or registered mail, return receipt requested. A suspension shall remain in effect until the basis for the suspension has been corrected to the satisfaction of the Regional Director. For good cause, the Regional Director may also grant at the permittee's request, a written waiver of any provision of its special use permit, so long as such waiver will not be likely to result in significant adverse effects on the refuge's resources. Reconsideration of the Regional Director's actions under this section may be obtained by employing the procedures described in § 37.22(c). A request for reconsideration shall not operate to stay the Regional Director's actions unless such stay is granted in writing by the Director.
§ 37.44   Revocation and relinquishment.
For nonuse, for failure to comply with § 37.14, or for any action of the permittee not consistent with this part, the Regional Director may revoke or a permittee may relinquish a special use permit to conduct exploratory activities at any time by sending to the other a written notice of revocation or relinquishment. Such notice shall state the reasons for the revocation or relinquishment and shall be sent by registered mail, return receipt requested, at least 30 days in advance of the date that the revocation or relinquishment will be effective. Revocation or relinquishment of a permit to conduct exploratory activities shall not relieve the permittee of the obligation to comply with all other obligations specified in this part and in its special use permit, approved exploration plan and plan of operation. Reconsideration of the Regional Director's actions under this section may be obtained by employing the procedures described in § 37.22(c). A request for reconsideration shall not operate to stay the Regional Director actions unless such stay is granted in writing by the Director.
§ 37.45   Exploration by the U.S. Geological Survey.
Notwithstanding the requirement found in § 37.21(b) on when exploration plans shall be submitted, the U.S. Geological Survey may at any time apply for a special use permit to conduct exploratory activities by submitting for approval one or more exploration plans in accordance with the requirements of this part and the Act. No plan submitted by the Survey will be approved unless (1) no other person has submitted a plan for the area involved which satisfies the regulations of this part and (2) the information which would be obtained from the Survey is needed to make an adequate report to Congress pursuant to the Act. Sections 37.13, 37.14, 37.22(d)(3), 37.46, 37.47, and 37.54(d) and the provisions of §§ 37.22(d)(2), 37.53(e), and 37.54 on processed, analyzed and interpreted data or information shall not apply to the Survey. If authorized to conduct exploratory activities, the Survey shall comply with this part in all other respects. All contractors and subcontractors used by the Survey to conduct exploratory activities shall be subject to all of the regulations of this part excepting §§ 37.13 and 37.46 and the provisions of §§ 37.22(d)(2), 37.53(e), and 37.54 on processed, analyzed and interpreted data or information.
§ 37.46   Cost reimbursement.
(a) Each applicant for or holder of a special use permit issued under this part shall reimburse the Department for its actual costs incurred, including, but not limited to, its direct costs and indirect costs as established by the indirect cost rate of the charging bureau or office, in publishing, reviewing (which includes, but is not limited to, conducting any public hearings thereon), modifying, and approving or disapproving the applicant's or permittee's exploration plan(s); reviewing evidence of the permittee's compliance with any order given by the Regional Director under § 37.13; preparing and issuing the permittee's special use permit; reviewing and acting on the permittee's plan(s) of operation; inspecting, monitoring, and enforcing the permittee's compliance with its approved exploration plan(s), plan(s) or operation, special use permit and this part; performing the permittee's obligations pursuant to § 37.31(a); and identifying, evaluating and preserving historic, archeological and cultural resources in areas to be explored by the permittee; as further delineated by the Regional Director.
(b) Each applicant shall submit with each exploration plan submitted a payment, the amount of which shall be an estimate made by the Regional Director of the costs which will be incurred by the Department in publishing, reviewing, modifying and approving or disapproving the applicant's exploration plan.
(1) If the applicant's plan is disapproved or if the applicant withdraws its application before a decision is reached on its plan, the applicant shall be responsible for such costs incurred by the Department in processing the applicant's application up to the date on which the plan is disapproved or the Regional Director receives written notice of the applicant's withdrawal, and for costs subsequently incurred by the Department in terminating the application review process. If the costs actually incurred exceed the estimate paid at the time of application, reimbursement by the applicant of such additional costs shall be due within 30 days of receiving notice from the Regional Director of the additional amount due. If the actual costs incurred are less than the estimate paid by the applicant, the excess shall be refunded to the applicant.
(2) If the applicant's plan is approved, the applicant shall pay an estimate made by the Regional Director of the costs which will be incurred by the Department in preparing and issuing to the applicant a special use permit. The first quarterly payment made by the applicant pursuant to paragraph (c) of this section will be adjusted upward or downward, as warranted, to accurately reflect the actual costs incurred by the Department in processing the permit. If an applicant withdraws after its plan is approved, but before its special use permit is issued, the applicant shall be responsible for such costs incurred by the Department in preparing the applicant's permit up to the date on which the Regional Director receives written notice of the applicant's withdrawal and for costs subsequently incurred by the Department in terminating permit preparation and issuance.
(3) When two or more applications are filed which the Regional Director determines to be in competition with each other, each applicant shall reimburse the Department for such actual costs incurred in processing its exploration plan and special use permit, if issued, except that those costs which are not readily identifiable with one of the applicants, shall be paid by each of the applicants in equal shares.
(c) Upon issuance of a special use permit, the permittee shall make an initial advance payment covering that current fiscal year quarter and quarterly payments thereafter to cover the actual costs incurred by the Department in administering the permittee's permit for its duration. Such costs shall include, but are not limited to, those direct costs and indirect costs, as established by the indirect costs rate of the charging bureau or office, incurred in reviewing and acting on permittee's plan(s) of operation; reviewing evidence of the permittee's compliance with any order given by the Regional Director under § 37.13; preparing and issuing the permittee's special use permit; inspecting, monitoring, and enforcing the permittee's compliance with its approved exploration plan, plan(s) of operation, special use permit and this part; performing the permittee's obligations pursuant to § 37.31(a); and identifying, evaluating and preserving historic, archeological and cultural resources in areas to be explored by the permittee. Each quarterly payment will be paid at the outset of the quarter and will cover the estimated cost of that quarter as adjusted by the Regional Director by reason of any adjustment warranted by paragraph (b) of this section or by overpayments or underpayments in previous quarters for which adjustment has not already been made. Upon termination of the permittee's special use permit, reimbursement or refundment of any outstanding amounts due the Department or the permittee shall be made within 180 days.
(d) Estimates required by this section shall be made by the Regional Director on the basis of the best available cost information. However, reimbursement shall not be limited to the Regional Director's estimate if actual costs exceed projected estimates.
(e) All payments required by this section shall be made payable to the Service. No applicant or permittee shall set off or otherwise deduct any debt due to or any sum claimed to be owed to it by the United States from any payment required by this section. Overpayments shall be credited or refunded to the person making them.
(f) When through partnership, joint venture or other business arrangement more than one person applies for or participates in a special use permit, each shall be jointly and severally liable for reimbursing the Department's cost under this section.
(g) Any lodging, food, communication, and transportation provided by a permittee under § 37.42 shall be deemed to be costs paid to the Department in kind for services rendered in inspecting and monitoring the permittee's exploratory activities. At the end of each quarter, the permittee shall furnish the Regional Director with a report, in a format approved or prescribed by him, on the goods and services provided during that quarter, and the names of the individuals to whom they were provided.
(h) Any dispute between an applicant or permittee and the Regional Director as to costs actually incurred by the Department and charged to the applicant or permittee shall be finally decided for the Secretary by the Director, using the procedures described in § 37.22(c).
§ 37.47   Civil penalties.
(a) This section prescribes the procedures for assessing a civil penalty for the violation of any provision of an approved exploration plan, any term or condition of the special use permit issued under § 37.23, or any prohibition contained in this part. The civil penalty remedy afforded by this section is in addition to all other remedies available to the Secretary.
(b) Notice of violation. (1) The notice of violation shall be issued by the Solicitor and served personally or by registered mail upon the person named in the notice (hereinafter the respondent) or his authorized representative. The notice shall contain:
(i) A summary of the facts believed to show a violation by the respondent;
(ii) A specific reference to the provision, term, condition or prohibition allegedly violated; and
(iii) The amount of the penalty proposed to be assessed. The notice may also contain an initial proposal for compromise or settlement of the action.
(2) The notice of violation shall also advise respondent of his right to:
(i) Respond to the notice within 45 calendar days from the date of its issuance by: (A) Undertaking informal discussions with the Solicitor; (B) Accepting the proposed penalty or the compromise, if any, offered in the notice; or (C) Filing a petition for relief in accordance with paragraph (c) of this section; or
(ii) Take no action and await the Solicitor's notice of assessment. Such response must be received by the Solicitor on or before the 45th day during normal business hours at the address stated in the notice.
(3) Any notice of violation may be amended, but any nontechnical amendment will extend the running of the respondent's 45 day period for response from the date of the notice to the date of the amendment.
(4) Acceptance of the proposed penalty or the compromise, if any, stated in the notice of violation shall be deemed to be a waiver of the notice of assessment required in paragraph (d) of this section and of the respondent's right to an opportunity for a hearing described in paragraph (e) of this section.
(c) Petition for relief. If the respondent chooses, he may ask that no penalty be assessed or that the amount be reduced and he may admit or contest the legal sufficiency of the Solicitor's charges and allegations of facts, by filing a petition for relief at the address specified in the notice within 45 calendar days from the date thereof. Such petition must be received by the Solicitor on or before the 45th day during normal business hours. The petition shall be in writing and signed by the respondent. If the respondent is a corporation, partnership, association or agency, the petition must be signed by an officer or official authorized to sign such document. It must set forth in full the legal or other reasons for the relief requested.
(d) Notice of assessment. (1) After 45 calendar days from the date of the notice of violation or any amendment thereof, the Solicitor may proceed to determine whether the respondent committed the violation alleged and to determine the amount of civil penalty to be assessed, taking into consideration the information available and such showing as may have been made by the respondent. The Solicitor shall notify the respondent of his determinations by a written notice of assessment, which shall also set forth the basis for his determinations. The notice of assessment shall be served on the respondent personally or by registered mail.
(2) The notice of assessment shall also advise the respondent of his right to request a hearing on the matter in accordance with paragraph (e) of this section.
(e) Request for a hearing. Within 45 calendar days from the date of the issuance of the notice of assessment, the respondent may request a hearing to be conducted on the matter in accordance with 5 U.S.C. 554 through 557 by filing a dated, written request for hearing with the Hearings Division, Office of Hearings and Appeals, Department of the Interior, 801 North Quincy Street, Arlington, Virginia 22203. Such request must be received at this address on or before the 45th day during normal business hours. The respondent shall state the respondent's preference as to the place and date for a hearing. The request must enclose a copy of the notice of violation and the notice of assessment. A copy of the request shall be served upon the Solicitor personally or by mail at the address specified in the notice of assessment.
(f) Finality of decision. If no request for a hearing is filed in accordance with this section, the assessment stated in the notice of assessment shall be effective and constitute the final administrative decision of the Secretary on the 45th calandar day from the date of the notice of assessment. If the request for hearing is timely filed in accordance with this section, the date of the final administrative decision in the matter shall be as provided in paragraph (g) or (h) of this section. When a civil penalty assessed under this section becomes final, the respondent shall have 20 calendar days from the date of the final administrative decision within which to make full payment of the penalty assessed. Payment will be timely only if received in the Office of the Solicitor during normal business hours on or before the 20th day.
(g) Hearing. (1) Upon receipt of a request for a hearing, the Hearings Division will assign an administrative law judge who shall have all the powers accorded by law and necessary to preside over the parties and the hearing and to make decisions in accordance with 5 U.S.C. 554 through 557. Notice of such assignment shall be given promptly to the respondent and to the Solicitor at the address stated in the notice of assessment. Upon notice of the assignment of an administrative law judge to the case, the Solicitor shall file all correspondence and petitions exchanged between the Solicitor and the respondent which shall become a part of the hearing record.
(2) The hearing shall be conducted in accordance with 5 U.S.C. 554 through 557 and with 43 CFR part 4 to the extent that it is not inconsistent with this part. Subject to 43 CFR 1.3, the respondent may appear in person, by representative, or by counsel. The hearing shall be held in a location established by the administrative law judge, giving due regard to the convenience of the parties, their representatives and witnesses. Failure to appear at the time set for hearing shall be deemed a waiver of the right to a hearing and consent to the decision on the record made at the hearing. The judge shall render a written decision on the record, which shall set forth his findings of facts and conclusions of law and the reasons therefore, and an assessment of a civil penalty if he determines that the respondent committed the violation charged.
(3) Discovery shall be obtained by employing the procedures described 43 CFR 4.1130 through 4.1141. In addition, discovery of facts known and opinions held by experts, otherwise discoverable under 43 CFR 4.1132(a) and acquired and developed in anticipation of administrative adjudication or litigation, may be obtained only as follows:
(i)(A) A party through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.
(B) Upon motion, the administrative law judge may order further discovery by other means, subject to such restrictions as to scope and such provisions under paragraph (g)(3)(iii) of this section concerning fees and expenses, as the administrative law judge may deem appropriate.
(ii) A party may discover facts known or opinions held by an expert, who has been retained or employed by another party in anticipation of administrative adjudication or litigation or preparation therefore and who is not expected to be called as a witness, only upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.
(iii) Unless manifest injustice would result, (A) the administrative law judge shall require the party seeking discovery to pay the expert, or the Department if the expert is an employee of the United States, a reasonable fee for time spent in responding to paragraphs (g)(3)(i)(B) and (g)(3)(ii) of this section; and (B) with respect to discovery under paragraph (g)(3)(i)(B) of this section the administrative law judge may require and with respect to discovery under paragraph (g)(3)(ii) of this section the administrative law judge shall require, the party seeking discovery to pay the other party a fair portion of the fees and expenses reasonably incurred by the latter party in obtaining facts and opinions from the expert.
(4) Unless the notice of appeal is filed in accordance with paragraph (h) of this section, the administrative law judge's decision shall constitute the final administrative decision of the Secretary in the matter and shall become effective 30 calendar days from the date of the decision.
(h) Appeal. (1) Either the respondent or the Solicitor may seek an appeal from the decision of an administrative law judge as to the respondent's violation or penalty or both by the filing of a notice of appeal with the Director, Office of Hearings and Appeals, United States Department of the Interior, 801 North Quincy Street, Arlington, Virginia 22203, within 30 calendar days of the date of the administrative law judge's decision. Such notice shall be accompanied by proof of service on the administrative law judge and the opposing party.
(2) Upon receipt of such a request, the Director, Office of Hearings and Appeals, shall appoint an ad hoc appeals board to determine whether an appeal should be granted, and to hear and decide an appeal. To the extent they are not inconsistent herewith, the provisions of 43 CFR part 4, subpart G shall apply to appeal proceedings under this paragraph. The determination of the board to grant or deny an appeal, as well as its decision on the merits of an appeal, shall be in writing and become effective as the final administrative determination of the Secretary in the matter on the date it is rendered, unless otherwise specified therein.
(i) Amount of penalty. The amount of any civil penalty assessed under this section shall not exceed $10,000 for each violation. Each day of a continuing violation shall, however, constitute a separate offense. In determining the amount of such penalty, the nature, circumstances, extent, and gravity of the violation committed, and, with respect to the respondent, his history of any prior offenses, his demonstrated good faith in attempting to achieve timely compliance after being cited for the violation, and such other matters as justice may require shall be considered.
(j) Petition for remission. The Solicitor may modify or remit, with or without conditions, any civil penalty which is subject to imposition or which has been imposed under this paragraph unless the matter is pending in court for judicial review or for recovery of the civil penalty assessed. A petition for remission may be filed by the respondent with the Solicitor at any time from the date of the notice of violation referred to in paragraph (b) of this section until 90 days after the date of final administrative decision assessing a civil penalty. The petition must set forth in full the legal and other reasons for the relief requested. Any petition that is not timely filed will not receive consideration. The Solicitor's decision shall be the final administrative decision for the Secretary on the petition.
§ 37.51   Operational reports.
(a) Each permittee shall submit reports every 2 weeks on the progress of exploratory activities in a manner and format approved or prescribed by the Regional Director. These shall include, but are not limited to, a daily log of operations, and a report on the discovery of any springs, hydrocarbon seeps, and other unusual phenomena.
(b) Each permittee shall submit to the Regional Director a semiannual report of exploratory activities conducted within the periods from December through May and June through November. These semiannual reports shall be submitted on August 1 and February 1 or, as otherwise specified by the Regional Director, and shall contain the following:
(1) A description of the work performed;
(2) Charts, maps, or plats depicting the areas in which any exploratory activities were conducted, specifically identifying the seismic lines and the locations where geological exploratory activities were conducted, and the locations of campsites, airstrips and other support facilities utilized;
(3) The dates on which exploration was actually performed.
(4) A narrative summary of any: (i) Surface occurrences of hydrocarbon or environmental hazards, and (ii) adverse effects of the exploratory activities on the refuge's wildlife, its habitat, the environment, cultural resources, or other uses of the area in which the activities were conducted; and
(5) Such other information as may be reasonably specified by the Regional Director.
(c) Each permittee shall also submit such other reports as are specified in this part.
§ 37.52   Records.
The permittee shall keep accurate and complete records relating to its exploratory activities and to all data and information, including, but not limited to, raw, processed, reprocessed, analyzed and interpreted data and information, obtained as a result thereof. Until September 2, 1989, the Secretary shall have access to and the right to examine and reproduce any records, papers, or other documents relating to such activities, data and information in order to ascertain the permittee's compliance with this part, ability to perform under any special use permit, and reliability and accuracy of all data, information and reports submitted to the Regional Director.
§ 37.53   Submission of data and information.
(a) The permittee shall submit to the Regional Director free of charge all data and information obtained as a result of carrying out exploratory activities. Such data and information include copies of all raw data and information and all processed, analyzed and interpreted data or information. The permittee shall, unless directed otherwise by the Regional Director, submit such data and information within 30 days after the end of the annual quarter during which they become available to it at every level of data gathering or utilization, i.e. , acquisition, processing, reprocessing, analysis, and interpretation.
(b) Each submission of geophysical data or information shall contain, unless otherwise specified by the Regional Director, the following:
(1) An accurate and complete record of each geophysical survey conducted under the permittee's permit, including digital navigational data, if obtained, and final location maps of all survey stations; and,
(2) All seismic data developed under the permit, presented in a format prescribed or approved by the Regional Director and of a quality suitable for processing.
(c) Processed geophysical information shall be submitted with extraneous signals and interference removed as much as possible, and presented in a format and of a quality suitable for interpretive evaluation, reflecting state-of-the-art processing techniques.
(d) Processed, analyzed and interpreted data or information required to be submitted by the Act and this section shall include, but not be limited to, seismic record sections, and intepretations thereof; geologic maps, cross sections, and intepretations thereof; maps of gravitational and magnetic fields and interpretations thereof; and chemical or other analyses of rock samples collected on the refuge and interpretations thereof.
(e) Any permittee or other person submitting processed, analyzed and interpreted data or information to the Regional Director shall clearly identify them by marking the top of each page bearing such data or information with the words ”PROCESSED, ANALYZED AND INTERPRETED DATA OR INFORMATION”. All pages so marked shall be physically separated by the person submitting them from those not so marked, unless doing so will destroy the value or integrity of the data or information presented. In that event or in the event that an item is submitted which is not susceptible to marking by page, the document or item submitted will be accompanied by a summary identifying the location of all processed, analyzed and interpreted data or information which are not segregated or marked by page, and explaning the reasons therefore. All pages not marked with this legend, all other data and information not identified as bearing such data or information, and all other data and information incorrectly identified as bearing such data or information shall be treated as raw data and information and shall be made available to the public upon request in accordance with § 37.54(a). The Department reserves the right to determine whether any page or item is correctly identified as constituting processed, analyzed and interpreted data or information.
(f) If the permittee proposes to transfer any data or information covered by this section to a third party or the third party proposes to transfer such data or information to another third party, the transferor shall notify the Regional Director at least 10 days in advance and shall require the receiving third party, in writing, to abide by the obligations of the permittee as specified in this section as a condition precedent to the transfer of such data or information.
(g) Upon request by the Department, a permittee shall identify each person to whom the permittee has provided data and information pursuant to § 37.22(d)(3) and provide a description of the area to which such data and information pertain.
§ 37.54   Disclosure.
(a) The Department shall make raw data and information obtained as a result of carrying out exploratory activities and submitted by the permittee or a third party available to the public upon submittal to the Congress of the report required by subsection (h) of the Act in accordance with subsection (e)(2)(C) of the Act, this section, and the procedural requirements of the Freedom of Information Act, 5 U.S.C. 552, and 43 CFR part 2. The Department shall withhold from the public all processed, analyzed and interpreted data or information obtained as a result of carrying out exploratory activities and submitted by the permittee or a third party, if they have been properly marked and correctly identified in accordance with § 37.53(e), until 10 years after the submission of such data or information to the Regional Director or until 2 years after any lease sale including the area within the refuge from which such data or information were obtained, whichever period is longer, by invoking subsection (e)(2)(C) of the Act and exemption 3 to the Freedom of Information Act, 5 U.S.C. 552(b)(3). Thereafter, the Department shall treat such data or information as raw data and information. The Department shall make all other records, except exploration plans which must be published in accordance with § 37.22(b), submitted by a permittee or a third party relating to the activities covered by the Act and this part available to the public in accordance with the Freedom of Information Act, 5 U.S.C. 552, and 43 CFR part 2.
(b) The Department reserves the right to disclose any data and information obtained as a result of carrying out exploratory activities and submitted by a permittee or a third party and any other information submitted by a permittee or a third party which may be exempt from public disclosure under the Freedom of Information Act, 5 U.S.C. 552, to an agent or third party in order to carry out the Department's statutory authorities. When practicable, the Department shall notify the permittee who provided the data or information of its intent to disclose the data or information to an agent or third party. Prior to any such disclosure, the recipient shall be required to execute a written commitment not to transfer or to otherwise disclose any data or information to anyone without the express consent of the Department. The recipient shall be liable for any unauthorized use by or disclosure of such data or information to other third parties.
(c) The Department reserves the right to disclose upon proper request any processed, analyzed and interpreted data and information and any other confidential information to the State of Alaska, to the Congress and any committee or subcommittee of the Congress having jurisdiction over the refuge or this exploration program, and to any part of the Executive and Judicial Branches of the United States for official use. The recipient shall be responsible for maintaining the confidentiality of such data and information in accordance with the Act.
(d) Commercial use by any person of data or information obtained as a result of carrying out exploratory activities and disclosed pursuant to this section is prohibited. No person shall obtain access from the Department, pursuant to paragraph (a) of this section, to any data or information obtained as a result of carrying out exploratory activities and submitted by the permittee or a third party until such person provides the Department with a statement certifying that person's awareness of the prohibition contained in this paragraph and the disqualification stated in the first sentence of § 37.4(b).