[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
