[Federal Register Volume 61, Number 181 (Tuesday, September 17, 1996)]
[Proposed Rules]
[Pages 48873-48874]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-23775]


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DEPARTMENT OF THE INTERIOR

Office of the Secretary

43 CFR Part 36

RIN 1093-AA07


Transportation and Utility Systems In and Across, and Access 
Into, Conservation System Units in Alaska

AGENCY: Office of the Secretary, Interior.

ACTION: Proposed rule.

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SUMMARY: This proposed rule would revise and simplify the regulatory 
definition of the term ``economically feasible and prudent alternative 
route'' as used in the review of proposed transportation and utility 
systems in Alaska under Title XI of the Alaska National Interest Lands 
Conservation Act (ANILCA).

DATES: Comments are requested by November 18, 1996.

ADDRESSES: Comments on the proposed regulations should be addressed to: 
Field Director, Alaska Field Office, National Park Service, 2525 
Gambell Street, Room 107, Anchorage, AK 99503-2892.

FOR FURTHER INFORMATION CONTACT: David A. Funk, Alaska Field Office, 
National Park Service, 2525 Gambell Street, Room 107, Anchorage, AK 
99503-2892. Phone: (907) 257-2589.

SUPPLEMENTARY INFORMATION:

Background

    On December 2, 1980, the Alaska National Interest Lands 
Conservation Act (ANILCA) was signed into law as Public Law 96-487 (94 
Stat. 2371, 16 U.S.C. 3101, et seq.). Title XI of ANILCA, which is 
entitled ``Transportation and Utility Systems in and across, and Access 
into, Conservation System Units,'' established guidelines and 
procedures for submitting and processing applications for 
transportation and utility systems (TUS) in Alaska when any portion of 
the route of the system will be within any conservation system unit, 
national recreation area, or national conservation area. In addition, 
Title XI authorizes special access, temporary access, and access to 
inholdings.
    On July 15, 1983, the Department of the Interior (Department) 
proposed comprehensive regulations to implement ANILCA Title XI on 
lands in Alaska under the jurisdiction of the National Park Service 
(NPS), U.S. Fish and Wildlife Service (FWS), and the Bureau of Land 
Management (BLM) (48 FR 32506). On September 4, 1986, the Department 
published final Title XI regulations (51 FR 31619).
    In early 1987, the Trustees for Alaska and other groups (Trustees) 
sued the Department to challenge the Title XI regulations as exceeding 
the authority granted to the Department by ANILCA. Parties intervening 
in the case included Arctic Slope Regional Council, the Alaska Miners 
Association, the Alaska Forest Association, and the Resource 
Development Council for Alaska, Inc. (The State of Alaska's Motion to 
Intervene on appeal is pending.) In Orders dated April 29, 1991, and 
March 16, 1993, the U.S. District Court for the District of Alaska 
granted summary judgment to the Department. The Trustees appealed the 
lower court's decision to the U.S. Court of Appeals for the Ninth 
Circuit, which assigned the case to the Chief Circuit Mediator to 
explore whether possible revision of the Title XI regulations, then 
under consideration by the Department of the Interior, might provide a 
basis for settlement. Based on all the parties' oral stipulation of 
agreement, and with the State of Alaska's concurrence, the Chief 
Circuit Mediator entered a court order on August 30, 1996, dismissing 
the litigation on the basis of the Department's proposal of a single 
regulatory revision to the existing Title XI regulations. If, after 
consideration of comments received in response to today's proposed 
rulemaking, the Department decides to promulgate a final rule based on 
the language of the proposed rule, the Ninth Circuit Court will dismiss 
the Title XI appeal with prejudice.
    The Department is today proposing one revision to the 1986 
regulations in order to improve the regulations' workability and reduce 
the opportunities for delays in decision-making. The decision to 
propose this one revision follows substantial review and discussion 
with interested parties both within and outside the Department. Based 
on these discussions and the August 30, 1996 Court Order entered by the 
Ninth Circuit's Chief Mediator, the Department is hopeful that this 
rulemaking process will result in settlement of the longstanding 
litigation.
    The Department is not proposing any other revisions of the Title XI 
regulations. Thus, for example, the 1986 regulations implementing the 
Title XI provisions concerning access to inholdings, special access, 
and temporary access remain intact. Also, the Department is not 
proposing any changes to the regulatory provisions governing access to 
subsistence resources under Title VIII of ANILCA

[[Page 48874]]

(see 36 CFR Sec. 13.46 (NPS) and 50 CFR Sec. 36.12 (FWS)). Finally, 
this rulemaking does not concern recognition and management of R.S. 
2477 rights-of-way.

Section-by-Section Analysis

Section 36.2  Definitions

    As a general matter, ANILCA Title XI establishes the following 
criteria for approval of a transportation or utility system across a 
conservation system unit, national conservation area, or national 
recreation area in Alaska: (1) The proposed transportation or utility 
system must be ``compatible with the purposes for which the unit was 
established,'' and (2) there must be no ``economically feasible and 
prudent alternative route for the system.'' This rulemaking proposes to 
revise the regulatory definition of the term ``economically feasible 
and prudent alternative route'' in the second criterion by replacing 
the complex definition promulgated in 1986 with the simpler definition 
originally proposed in 1983.
    The existing definition promulgated in 1986 reads as follows:
    ``Economically feasible and prudent alternate route'' means an 
alternate route must meet the requirements for being both economically 
feasible and prudent. To be economically feasible, the alternate route 
must be able to attract capital to finance its construction and an 
alternate route will be considered to be prudent only if the difference 
of its benefits minus its costs is equal to or greater than that of the 
benefits of the proposed transportation or utility system minus its 
costs.
    The revised definition which the Department is proposing today is 
the same as the definition originally proposed in 1983 (48 FR 32506), 
as follows:
    ``Economically feasible and prudent alternative route'' means a 
route either within or outside an area that is based on sound 
engineering practices and is economically practicable but does not 
necessarily mean the least costly alternative route.
    The proposed definition is simpler and more straightforward than 
the elaborate formula which was added in the final 1986 regulations. 
The proposed definition includes the economic considerations mentioned 
in the legislative history, but avoids the complex and potentially 
misleading quantitative analysis required by the 1986 definition. The 
proposed definition avoids the opportunities for delay and controversy 
inherent in the 1986 definition. Finally, the proposed definition is 
more likely to facilitate decisions consistent with the statutory 
preference for routing a TUS outside a conservation system unit, 
national recreation area, or national conservation area expressed in 
ANILCA section 1104(g)(2)(B). A technical correction to this definition 
replaces the term ``alternate route'' with the analogous, statutorily 
used term, ``alternative route.''

Public Participation

    It is the policy of the Department of the Interior, whenever 
practical, to afford the public an opportunity to participate in the 
rulemaking process. Accordingly, interested persons may submit written 
comments, suggestions or objections regarding this rulemaking document 
to the address noted at the beginning of this rulemaking.

Drafting Information

    The primary authors of this proposal are David A. Funk and Russel 
J. Wilson of the Alaska Regional Office, National Park Service, and 
Molly N. Ross, Office of the Assistant Secretary for Fish and Wildlife 
and Parks, Department of the Interior, Washington, D.C.

Paperwork Reduction Act

    This rule does not contain collections of information that require 
approval by the Office of Management and Budget under 44 U.S.C. 3501, 
et seq.

Compliance With Other Laws

    In accordance with the Regulatory Flexibility Act, 5 U.S.C. 601 et 
seq., the Department has determined that this rule will not have a 
significant economic effect on a substantial number of small entities, 
nor does it require a preparation of a regulatory analysis.
    The rule has been reviewed under Executive Order 12866.
    The Department has determined this rule is categorically excluded 
from the procedural requirements of the National Environmental Policy 
Act pursuant to 516 DM 2, Appendix 1.5. The action was previously 
covered by an Environmental Assessment and a Finding of No Significant 
Impact. None of the exceptions to the categorical exclusions in 516 DM 
2, Appendix 2, applies.

List Of Subjects in 43 CFR Part 36

    Access, Alaska, Conservation system units, National parks, Rights-
of-way, Traffic regulation, Transportation, Utilities, Wildlife 
refuges.

    Accordingly, 43 CFR Part 36 is proposed to be amended as set forth 
below:

PART 36--TRANSPORTATION AND UTILITY SYSTEMS IN AND ACROSS, AND 
ACCESS INTO, CONSERVATION SYSTEM UNITS IN ALASKA

    1. The authority section for part 36 continues to read as follows:

    Authority: 16 U.S.C. 1, 3, 668dd et seq., and 3101 et seq.; 43 
U.S.C. 1201.

    2. Section 36.2 is amended by revising paragraph (h) to read as 
follows:


Sec. 36.2  Definitions.

* * * * *
    (h) Economically feasible and prudent alternative route means a 
route either within or outside an area that is based on sound 
engineering practices and is economically practicable but does not 
necessarily mean the least costly alternative route.
* * * * *
    Dated: September 11, 1996.
George T. Frampton, Jr.,
Assistant Secretary for Fish and Wildlife and Parks.
    Dated: September 11, 1996.
Bob Armstrong,
Assistant Secretary for Land and Minerals Management.
[FR Doc. 96-23775 Filed 9-16-96; 8:45 am]
BILLING CODE 4310-70-P