[Code of Federal Regulations]
[Title 43, Volume 1]
[Revised as of October 1, 2002]
From the U.S. Government Printing Office via GPO Access
[CITE: 43CFR36.7]

[Page 514-515]
 
                    TITLE 43--PUBLIC LANDS: INTERIOR
 
PART 36--TRANSPORTATION AND UTILITY SYSTEMS IN AND ACROSS, AND ACCESS INTO, CONSERVATION SYSTEM UNITS IN ALASKA--Table of Contents
 
Sec. 36.7  Decision process.

    There are two separate decision processes. The first is used when 
the appropriate Federal agencies have an applicable law to issue a 
right-of-way permit and the area involved is outside the National 
Wilderness Preservation System. The second is used when an area involved 
in the application is within the National Wilderness Preservation System 
or an appropriate Federal agency has no applicable law with respect to 
issuing a right-of-way permit across all or any area covered by a TUS 
application.
    (a) When the appropriate Federal agencies have an applicable law and 
the area involved is outside the National Wilderness Preservation 
System:
    (1) Within four months of the date of the notice of availability of 
a FONSI or final EIS, each appropriate Federal agency shall make a 
decision based on applicable law to approve or disapprove

[[Page 515]]

the TUS and so notify the applicant in writing.
    (2) Each appropriate Federal agency in making its decision shall 
consider and make detailed findings supported by substantial evidence as 
to the portion of the TUS, within that agency's jurisdiction, with 
respect to:
    (i) The need for and economic feasibility of the TUS;
    (ii) Alternative routes and modes of access, including a 
determination with respect to whether there is any economically feasible 
and prudent alternative to routing the system through or within an area 
and, if not, whether there are alternate routes or modes which would 
result in fewer or less severe adverse impacts upon the area;
    (iii) The feasibility and impacts of including different TUSs in the 
same area;
    (iv) Short and long term social, economic and environmental impacts 
of national, State or local significance, including impacts on fish and 
wildlife and their habitat and on rural, traditional lifestyles;
    (v) The impacts, if any, on the national security interests of the 
United States, that may result from approval or denial of the 
application for the TUS;
    (vi) Any impacts that would affect the purposes for which the 
Federal unit or area concerned was established;
    (vii) Measures which should be instituted to avoid or minimize 
negative impacts;
    (viii) The short and long term public values which may be adversely 
affected by approval of the TUS versus the short and long term public 
benefits which may accrue from such approval; and
    (ix) Impacts, if any, on subsistence uses.
    (3) To the extent the appropriate Federal agencies agree, the 
decisions may be developed jointly, singularly or in some combination 
thereof.
    (4) If an appropriate Federal agency disapproves any portion of the 
TUS, the application in its entirety is disapproved and the applicant 
may file an administrative appeal pursuant to section 1106(a) of ANILCA.
    (b) When an area involved is within the National Wilderness 
Preservation System or an appropriate Federal agency has no applicable 
law with respect to granting all or any part of a TUS application:
    (1) Within four months of the date of publication of the notice of 
the availability of the final EIS or FONSI, each appropriate Federal 
agency shall determine whether to tentatively approve or disapprove each 
right-of-way permit within its jurisdiction that applies with respect to 
the TUS and the Secretary of the Interior shall make notification 
pursuant to section 1106(b) of ANILCA.
    (i) The Federal agency having jurisdiction over a portion of a TUS 
for which there is no applicable law shall recommend approval of that 
portion of the TUS if it is determined that:
    (A) Such system would be compatible with the purposes for which the 
area was established; and
    (B) There is no economically feasible and prudent alternate route 
for the system.
    (ii) If there is applicable law for a portion of the TUS which is 
outside the National Wilderness Preservation System, the applicable law 
shall be applied in making the determination to approve or disapprove 
that portion of the TUS.
    (2) The notification shall be accompanied by a statement of the 
reasons and findings supporting each appropriate Federal agency's 
position. The findings shall include, but not be limited to, the 
findings required in paragraph (a)(2) of this section. The notification 
shall also be accompanied by the final EIS, the EA or statement that a 
categorical exclusion applies and any comments of the public and other 
Federal agencies.