[Federal Register Volume 62, Number 195 (Wednesday, October 8, 1997)]
[Rules and Regulations]
[Pages 52509-52510]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-26625]


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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: Final rule.

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SUMMARY: The Department of the Interior is implementing this final rule 
to 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: Effective date: This rule becomes effective November 7, 1997.
    Compliance date: This rule will apply to agency decisionmaking 
under ANILCA Title XI beginning November 7, 1997.

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 or 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), the 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 Corporation, the Alaska 
Miners Association, the Alaska Forest Association, and the Resource 
Development Council for Alaska, Inc. 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 a mediator to explore whether 
review and possible revision of the Title XI regulations might provide 
a basis for settlement.
    On September 17, 1996, the Department proposed (61 FR 48873) one 
revision to the 1986 regulations in order to improve the regulations' 
workability and reduce the opportunities for delays in decisionmaking. 
The proposal followed substantial review and consultation with 
interested parties both within and outside the Department. The proposal 
provided an additional advantage of offering a focus for the consensus 
necessary to settle the longstanding litigation. The litigation was 
dismissed on August 30, 1996, subject to reinstatement if the final 
regulations differed from the proposal.
    The Department did not propose 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 will remain intact. Also, the Department did not 
propose any changes to the regulatory provisions governing access to 
subsistence resources under Title VIII of ANILCA (see 36 CFR 13.46 
(NPS) and 50 CFR 36.12 (FWS)). Finally, neither the proposed nor this 
final rule concerns recognition or management of R.S. 2477 rights-of-
way.

Summary of Public Comments

    Six comments were received in response to publication of the 
proposed rule. None of the responses objected to the proposed revision 
of 43 CFR 36.2(h).
    The Alaska Department of Law stated that the revision would be 
consistent with the August 30, 1996, Order issued by the United States 
Court of Appeals for the Ninth Circuit in Trustees for Alaska v. United 
States Department of the Interior, No. 93-35493 (Trustees). The 
Department of Law added, however, that the State does not necessarily 
concur with the facts and

[[Page 52510]]

interpretations presented in the proposed rule.
    The Pacific Legal Foundation, commenting on behalf of several 
intervenors in Trustees, stated that the revision is neither necessary 
nor useful. However, the Foundation supports the change in order to 
settle the litigation.
    The comments submitted by the Trustees for Alaska (on behalf of the 
appellants in the litigation), the Wilderness Society, and the Sierra 
Club, all support the revision. The Wilderness Society and the Sierra 
Club also provided comments on other provisions of 43 CFR Part 36 that 
they believe should be revised. The Department considered these issues 
while preparing the proposed rule and concluded that no other 
provisions of part 36 require modification at this time.
    Finally, the United States Small Business Administration commented 
on the lack of support in the proposed rule for the Department's 
certification that the proposed revision will not have a significant 
economic effect on a substantial number of small entities. The factual 
basis for this conclusion is in the nature of the proposed revision. As 
stated in the background to the proposed rule, the purpose of the 
revision is to ``improve the regulations' workability and reduce the 
opportunities for delays in decision-making.'' In essence, the revision 
will replace an elaborate formula with a simpler and more 
straightforward definition. Because the revision is for purposes of 
clarification and its effect is primarily procedural and beneficial, 
the rule would have no significant economic effect or change on a 
substantial number of small entities. It follows that the final rule 
does not require preparation of a regulatory analysis.

Section-by-Section Analysis

Section 36.2 Definitions

    As a general matter, ANILCA Title XI established 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 revises 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 the 1983 rulemaking.
    The revised definition which the Department is adopting 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.

    This definition in the opinion of the Department is simpler and 
more straightforward than the elaborate formula which was added in the 
final 1986 regulations. The revised 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 revised definition also avoids the 
opportunities for delay and controversy inherent in the 1986 
definition. Finally, the revised definition will 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.''

Drafting Information

    The primary authors of this rule are David A. Watts of the 
Solicitor's Office, Department of the Interior, David A. Funk 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, DC.

Paperwork Reduction Act

    This rule does not contain collections of information that require 
approval by the Office of Management and Budget under the Paperwork 
Reduction Act of 1995.

Compliance With Other Laws

    This rule was reviewed by the Office of Management and Budget under 
Executive Order 12866. The Department of the Interior determined that 
this document will not have a significant economic effect on a 
substantial number of small entities under the Regulatory Flexibility 
Act (5 U.S.C. 601 et seq.).
    The Department has determined and certifies pursuant to the 
Unfunded Mandates Reform Act (2 U.S.C. 1502 et seq.), that this rule 
will not impose a cost of $100 million or more in any given year on 
local, State or tribal governments or private entities.
    The Department has determined that this rule meets the applicable 
standards provided in section 3(a) and 3(b)(2) of Executive Order 
12988.
    This rule is not a major rule under the Congressional review 
provisions of the Small Business Regulatory Enforcement Fairness Act (5 
U.S.C. 8-4(2)).
    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.
    In consideration of the foregoing, 43 CFR Part 36 is amended as 
follows:

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

    1. The authority citation 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 22, 1997.
Donald J. Barry,
Acting Assistant Secretary for Fish and Wildlife and Parks.

    Dated: September 23, 1997.
Sylvia V. Baca,
Deputy Assistant Secretary for Land and Minerals Management.
[FR Doc. 97-26625 Filed 10-7-97; 8:45 am]
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