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

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

(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