[Federal Register Volume 84, Number 186 (Wednesday, September 25, 2019)]
[Proposed Rules]
[Pages 50698-50702]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-20741]



[[Page 50697]]

Vol. 84

Wednesday,

No. 186

September 25, 2019

Part IV





Department of Agriculture





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Forest Service





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36 CFR Part 251





Land Uses; Special Uses; Procedures for Operating Plans and Agreements 
for Vegetation Management Within and Along Powerline Rights-of-Way; 
Proposed Rule

  Federal Register / Vol. 84 , No. 186 / Wednesday, September 25, 2019 
/ Proposed Rules  

[[Page 50698]]


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DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Part 251

RIN 0596-AD36


Land Uses; Special Uses; Procedures for Operating Plans and 
Agreements for Vegetation Management Within and Along Powerline Rights-
of-Way

AGENCY: Forest Service, USDA.

ACTION: Proposed rule.

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SUMMARY: The U.S. Department of Agriculture, Forest Service (Agency) is 
proposing to amend its existing regulations, for the Agency's special 
uses to implement Section 512 of the Federal Land Policy and Management 
Act, as added by section 211 of division O, Consolidated Appropriations 
Act, 2018 (hereinafter ``Section 512''). This section governs the 
development and approval of operating plans and agreements for 
vegetation and facility management on National Forest System (NFS) 
lands within rights-of-way for electric transmission and distribution 
facilities (powerlines) and on their abutting lands.

DATES: Comments must be received in writing by November 25, 2019.

ADDRESSES: Submit comments electronically by following the instructions 
at the Federal eRulemaking portal at http://www.regulations.gov. 
Comments also may be submitted by mail to the USDA Forest Service, 
Lands and Realty Staff, 201 14th Street SW, Mailstop 1124, Washington, 
DC 20250-1125. If comments are sent electronically, duplicate comments 
should not be sent by mail. Comments should be confined to issues 
pertinent to the proposed rule, and the reasons for any recommended 
changes should be explained. The specific section and wording being 
addressed should be referenced, where possible. All comments, including 
names and addresses when provided, will be placed in the record and 
will be available for public inspection and copying. The public may 
inspect comments received on this proposed rule in the Lands and Realty 
Management Staff, 1st Floor Southwest, 201 14th Street SW, Washington, 
DC 20250-1125, on business days between 8:30 a.m. and 4:00 p.m. Those 
wishing to inspect comments are encouraged to call ahead at 202-205-
1196 to facilitate entry into the building.

FOR FURTHER INFORMATION CONTACT: Reggie Woodruff, Energy Program 
Manager, Lands and Realty Management staff, (202) 205-1196.

SUPPLEMENTARY INFORMATION: 

Background and Need for the Proposed Rule

    The proposed rule is being promulgated pursuant to Section 512 (43 
U.S.C. 1772), which is an amendment to Title V of FLPMA (43 U.S.C. 
1761-1772). Section 501(a)(5) of FLPMA (43 U.S.C. 1761(a)(5)) 
authorizes the Forest Service to issue or reissue right-of-way 
authorizations for powerlines on NFS lands. Section 501(b)(1) of FLPMA 
(43 U.S.C. 1761(b)(1)) provides that prior to issuing or reissuing a 
special use authorization for a right-of-way, the Forest Service must 
require that the applicant submit any plans, contracts, or other 
information related to the proposed or existing use of the right-of-way 
that the Agency deems necessary to determine, in accordance with FLPMA, 
whether to issue or reissue the authorization and the terms and 
conditions that should be included in the authorization.
    Section 503(c) of FLPMA (43 U.S.C. 1763(c)) provides that right-of-
way authorizations must be issued or reissued pursuant to Title V of 
FLMPA and its implementing regulations and must also be subject to such 
terms and conditions as the Forest Service may prescribe regarding 
extent, duration, survey, location, construction, maintenance, transfer 
or assignment, and termination. Section 505 of FLPMA (43 U.S.C. 1765) 
gives the Forest Service broad discretion to establish terms and 
conditions in right-of-way authorizations, including terms and 
conditions that will effectuate the purposes of FLPMA and its 
implementing regulations and minimize damage to scenic and aesthetic 
values and fish and wildlife habitat and otherwise protect the 
environment (43 U.S.C. 1765(a)(i)-(ii)). In addition, Section 505(b) 
(43 U.S.C. 1765(b)) requires the Forest Service to include terms and 
conditions in right-of-way authorizations that the Agency deems 
necessary to protect federal property and economic interests; 
efficiently manage the lands which are subject or adjacent to the 
right-of-way; protect lives and property; protect the interests of 
individuals living in the general area traversed by the right-of-way 
who rely on the fish, wildlife, and other biotic resources of the area 
for subsistence purposes; require location of the right-of-way along a 
route that will cause least damage to the environment, taking into 
consideration feasibility and other relevant factors; and otherwise 
protect the public interest in the lands traversed by or adjacent to 
the right-of-way.
    Consistent with this statutory authority, the Forest Service 
regulates the occupancy and use of NFS lands for powerline rights-of-
way through issuance of a special use authorization under 36 CFR part 
251, subpart B. The Forest Service must include in special use 
authorizations terms and conditions the Agency deems necessary to 
effectuate the purposes of FLPMA and its implementing regulations (36 
CFR 251.56(a)(1)(i)(A)); minimize damage to scenic and esthetic values 
and fish and wildlife habitat and otherwise protect the environment (36 
CFR 251.56(a)(1)(i)(B)); protect federal property and economic 
interests (36 CFR 251.56(a)(1)(ii)(A)); efficiently manage the lands 
subject and adjacent to the authorized use (36 CFR 
251.56(a)(1)(ii)(B)); protect lives and property (36 CFR 
251.56(a)(1)(ii)(D)); protect the interests of individuals living in 
the general area of the authorized use who rely on resources of the 
area (36 CFR 251.56(a)(1)(ii)(E)); and otherwise protect the public 
interest (36 CFR 251.56(a)(1)(ii)(G)).
    Based on these statutory and regulatory requirements, the Forest 
Service issues special use authorizations for powerline rights-of-way 
that require the holder, in consultation with the Forest Service, to 
prepare an operating plan that includes provisions governing vegetation 
and facility management on NFS lands within and abutting the right-of-
way. Right-of-way authorizations for powerlines on NFS lands also 
require Forest Service approval of the operating plan before it is 
implemented.
    In 2018, Congress amended FLPMA to add Section 512, which 
establishes requirements for the development and approval of operating 
plans and agreements for vegetation and facility management on NFS 
lands within powerline rights-of-way and on their abutting lands. 
Consistent with the definitions in Section 512(a), the Forest Service 
is proposing to amend its regulations at 36 CFR 251.51 to add 
definitions for ``hazard tree,'' ``operating plan or agreement for an 
electric transmission or distribution line,'' and ``owner or 
operator.'' The proposed rule would define an operating plan or 
agreement for a powerline on NFS lands as a plan or agreement that 
provides for long-term, cost-effective, efficient, and timely 
inspection, operation, maintenance and vegetation management of the 
powerline within the right-of-way and on abutting NFS lands, including 
management of hazard trees, to enhance electric reliability, promote 
public safety, and avoid fire hazards.

[[Page 50699]]

    In addition, the Forest Service is proposing to revise 36 CFR 
251.56, which governs terms and conditions in special use 
authorizations, to add a new paragraph (h), entitled Operating plans 
and agreements for electric transmission and distribution facilities. 
Consistent with Section 512(c), this new paragraph would include 
requirements for operating plans and agreements for powerlines. Per 
Section 512(c)(1) and (c)(4)(A), paragraph (h) of the proposed rule 
would provide for the operating plan or agreement to be prepared by the 
owner or operator of the powerline, approved by the authorized officer, 
and incorporated by reference into the corresponding special use 
authorization. Consistent with Section 512(d), paragraphs (h)(1) and 
(h)(2) of the proposed rule would specify when an agreement instead of 
an operating plan may be used. Consistent with Section 512(k), 
paragraph (h)(3) would provide that an existing operating plan must, at 
the holder's initiative, be revised consistent with Section 512 and 
submitted to the Forest Service for approval. Paragraph (h)(4), per 
Section 512(c)(1), would provide that an operating plan or agreement 
may be prepared by the owner or operator alone or in consultation with 
the Forest Service.
    Per Section 512(c)(3) and (c)(4), (e), and (f), paragraph (h)(5) of 
the proposed rule would address the contents of an operating plan or 
agreement for a powerline, including:
     Coordination between the owner or operator and the Forest 
Service;
     Compliance with applicable law; applicable reliability and 
safety standards; the applicable land management plan; environmental 
compliance; resource protection; fire control; routine, non-routine, 
and emergency maintenance of the powerline; and road and trail 
construction, reconstruction, and maintenance in support of the 
powerline;
     Best management practices for vegetation management, 
procedures for marking timber, and road and trail standards and best 
management practices;
     Types of activities that require prior written approval 
from the Forest Service, including construction, reconstruction, and 
non-routine maintenance of the powerline; non-emergency vegetation 
management; and road and trail construction and reconstruction in 
support of the powerline; and
     Timeframes for:
    [cir] The owner or operator to notify the Forest Service of 
routine, non-routine, and emergency maintenance of the powerline and 
non-emergency and emergency vegetation management for the powerline;
    [cir] The owner or operator to request approval from the Forest 
Service of non-routine maintenance of and non-emergency vegetation 
management for the powerline; and
    [cir] The authorized officer to respond to a request by the owner 
or operator for approval of non-routine maintenance of and non-
emergency vegetation management for the powerline.
     Procedures for prior Forest Service approval of non-
emergency vegetation management and emergency vegetation management of 
the powerline without prior Forest Service approval; and
     Procedures for modification of an approved operating plan 
or agreement.
    Per Section 512(c)(4)(A), paragraph (h)(6) of the proposed rule 
would require proposed operating plans and agreements to be reviewed 
and approved in accordance with procedures developed jointly by the 
Forest Service and the United States Department of the Interior, Bureau 
of Land Management. Paragraph (h)(6), consistent with Section 
512(c)(4), would require these procedures to specify timeframes for:
     Submission of agency comments on a proposed operating plan 
or agreement;
     Approval of a proposed operating plan or agreement, to the 
maximum extent practicable, within 120 days from the date the proposed 
operating plan or agreement was submitted; and
     Approval of any necessary modifications to an approved 
operating plan or agreement.
    Per Section 512(c)(1) and (c)(4)(A), proposed paragraph (h)(7) 
would provide that when an approved operating plan or agreement expires 
before termination of the corresponding special use authorization, the 
owner or operator must prepare a new proposed operating plan or 
agreement, either solely or in consultation with the authorized 
officer, and submit it to the authorized officer for review and 
approval in accordance with the procedures described in proposed 
paragraph (h)(6).
    Consistent with Section 512(h)(1), proposed paragraph (h)(8) would 
require the Forest Service to report annually on its website requests 
for approval of activities to be conducted under operating plans and 
agreements and the response to those requests.
    Proposed paragraph (h)(9)(i), per Section 512(g)(1), would provide 
that strict liability in tort may not be imposed on an owner or 
operator for injury or damages resulting from the Forest Service's 
unreasonably withholding or delaying approval of an operating plan or 
agreement or unreasonably failing to adhere to an applicable schedule 
in an approved operating plan or agreement. Consistent with Section 
512(g)(2), proposed paragraph (h)(9)(ii) would provide that for 10 
years from the effective date of Section 512, strict liability in tort 
for injury or damages resulting from activities conducted by an owner 
or operator under an approved agreement may not exceed $500,000 per 
incident.
    Consistent with Section 512(b), proposed paragraph (h)(10) would 
require the Forest Service to issue and periodically update guidance to 
ensure that operating plans and agreements for powerline authorizations 
are appropriately developed, approved, and implemented. Proposed 
paragaph (h)(10) would require that the guidance:
     Be developed in consultation with owners of powerlines;
     Be compatible with mandatory reliability standards 
established by the Electric Reliability Organization;
     Consider all applicable law, including fire safety and 
electrical system reliability requirements, such as reliability 
standards established by the Electric Reliability Organization;
     Consider the 2016 Memorandum of Understanding on 
Vegetation Management for Powerline Rights-of-Way Among the Edison 
Electric Institute, Utility Arborist Association, the National Park 
Service, the United States Fish and Wildlife Service, the Bureau of 
Land Management, the Forest Service, and the United States 
Environmental Protection Agency, and any successor memorandum of 
understanding;
     Seek to minimize the need for case-by-case approvals for 
non-emergency vegetation management (including hazard tree removal), 
facility inspection, and operation and maintenance of powerlines; and
     Provide for prompt and timely review of requests to 
conduct non-emergency vegetation management of powerlines.
    Per Section 512(c)(5), the Forest Service's current regulations 
implementing the National Environmental Policy Act (NEPA) at 36 CFR 
220.6(d)(10) and (e)(2) exclude categories of actions covered by an 
operating plan or agreement for a powerline authorization from 
documentation in an environmental assessment (EA) or an environmental 
impact statement (EIS). Section 220.6(d)(10) establishes a categorical 
exclusion from documentation in an EA or EIS (CE) for reissuance of an 
existing

[[Page 50700]]

special use authorization that involves only administrative changes and 
does not involve changes in the authorized facilities or increase in 
the scope or intensity of authorized activities, or extension to the 
term of the authorization, when the holder is in full compliance with 
the terms and conditions of the existing authorization. Section 
220.6(e)(2) establishes a CE for additional construction or 
reconstruction of existing powerlines in a designated corridor, 
including reconstructing a powerline by replacing poles and wires.
    Proposed revisions to the Forest Service's NEPA regulations at 36 
CFR 220.5 (84 FR 27544) would enhance the Agency's ability to rely on a 
CE in approving activities covered by an operating plan or agreement 
for a powerline authorization. Proposed Sec.  220.5(d)(11) would 
establish a new CE that does not require a project or case file and 
decision memo for reissuance of special use authorizations to reduce 
the backlog of expired and expiring authorizations. One of the examples 
for this CE would be issuance of a new authorization to replace a 
powerline authorization that is at the end of its term. In addition, 
the proposed revisions to the Agency's NEPA regulations would expand 
the current CE for special use authorizations at Sec.  220.5(e)(3) from 
5 to 20 acres and would remove the qualifier ``minor.'' One of the 
examples for this CE would be approval of up to a 40-foot-wide, 4-mile-
long utility corridor on NFS lands.
    As provided by Section 512(j)(2), the Forest Service will publish a 
final rule by March 31, 2020. The Agency anticipates that 
implementation of the rule would promote the reliability of the United 
States' electrical grid and would reduce the threat of damage to 
powerlines, natural resources, and nearby communities by streamlining 
approval for routine and emergency vegetation management within and 
abutting powerline rights-of-way on NFS lands.

Regulatory Certifications

Executive Order 12866

    Executive Order (E.O.) 12866 provides that the Office of 
Information and Regulatory Affairs (OIRA) in the Office of Management 
and Budget will review all significant rules. OIRA has determined that 
this proposed rule is not significant.

Executive Order 13771

    The proposed rule has been reviewed in accordance with E.O. 13771 
on reducing regulation and controlling regulatory costs and has been 
designated as an ``other action'' for purposes of the E.O.

Congressional Review Act

    Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), 
OIRA has designated this rule as not a major rule, as defined by 5 
U.S.C. 804(2).

National Environmental Policy Act

    This proposed rule would establish procedures for the development 
and approval of operating plans and agreements for vegetation and 
facility management within and abutting powerline rights-of-way on NFS 
lands. Agency regulations at 36 CFR 220.6(d)(2) (73 FR 43093) exclude 
from documentation in an environmental assessment or environmental 
impact statement rules, regulations, or policies to establish Service-
wide administrative procedures, program processes, or instructions. The 
Agency has concluded that this proposed rule falls within this category 
of actions and that no extraordinary circumstances exist which would 
require preparation of an environment assessment or environmental 
impact statement.

Regulatory Flexibility Act Analysis

    This proposed rule has been considered in light of the Regulatory 
Flexibility Act (5 U.S.C. 602 et seq.). This proposed rule would not 
have any direct effect on small entities as defined by the Regulatory 
Flexibility Act. The proposed rule would not impose recordkeeping 
requirements on small entities; would not affect their competitive 
position in relation to large entities; and would not affect their cash 
flow, liquidity, or ability to remain in the market. Therefore, the 
Forest Service has determined that this proposed rule would not have a 
significant economic impact on a substantial number of small entities 
pursuant to the Regulatory Flexibility Act.

Federalism

    The Agency has considered this proposed rule under the requirements 
of E.O. 13132, Federalism and has determined that the proposed rule 
conforms with the Federalism principles set out in the E.O.; would not 
impose any compliance costs on the states; and would not have 
substantial direct effects on the states, the relationship between the 
federal government and the states, or the distribution of power and 
responsibilities among the various levels of government. Therefore, the 
Agency has determined that no further assessment of Federalism 
implications is necessary.

Consultation and Coordination With Indian Tribal Governments

    The Agency has determined that national tribal consultation is not 
necessary for this proposed rule. This proposed rule, which would 
implement statutory requirements governing operating plans and 
agreements for powerline rights-of-way on NFS lands, is programmatic 
and would not have any direct effects on tribes. Tribal consultation 
will occur as appropriate in connection with specific applications for 
powerline rights-of-way on NFS lands.

No Takings Implications

    This proposed rule has been analyzed in accordance with the 
principles and criteria contained in E.O. 12630, Governmental Actions 
and Interference with Constitutionally Protect Property Rights. The 
Agency has determined that the proposed rule would not pose the risk of 
a taking of private property.

Controlling Paperwork Burdens on the Public

    This proposed rule does not contain any recordkeeping or reporting 
requirements or other information collection requirements as defined in 
5 U.S.C. 1320 that are not already required by law or not already 
approved for use. Accordingly, the review provisions of the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.) and its implementing 
regulations at 5 CFR part 1320 do not apply.

Energy Effects

    This proposed rule has been reviewed under E.O. 13211, Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. The Agency has determined that this proposed rule 
does not constitute a significant energy action as defined in the E.O.

Civil Justice Reform

    This proposed rule has been reviewed under E.O. 12988, Civil 
Justice Reform. If the proposed rule were adopted, (1) all state and 
local laws and regulations that conflict with the proposed rule or that 
would impede its full implementation would be preempted; (2) no 
retroactive effect would be given to the proposed rule; and (3) it 
would not require administrative proceedings before parties may file 
suit in court challenging its provisions.

[[Page 50701]]

Unfunded Mandates

    Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2 
U.S.C. 1531-1538), the Agency has assessed the effects of this proposed 
rule on state, local, and tribal governments and the private sector. 
This proposed rule would not compel the expenditure of $100 million or 
more by any state, local, or tribal government or anyone in the private 
sector. Therefore, a statement under section 202 of the act is not 
required.

List of Subjects in 36 CFR Part 251

    Electric power, Mineral resources, National Forests, Rights-of-way, 
and Water resources.

    Therefore, for the reasons set out in the preamble, the Forest 
Service proposes to amend part 251, subpart B, of title 36 of the Code 
of Federal Regulations as follows:

PART 251--LAND USES

Subpart B--Special Uses

0
1. Revise the authority citation for part 251, subpart B, to read as 
follows:

    Authority: 16 U.S.C. 460l-6a, 460l-6d, 472, 497b, 497c, 551, 
580d, 1134, 3210; 30 U.S.C. 185; 43 U.S.C. 1740, 1761-1772.

0
2. In Sec.  251.51, add definitions for ``hazard tree,'' ``operating 
plan or agreement for an electric transmission or distribution 
facility,'' and ``owner or operator,'' in alphabetical order, to read 
as follows:


Sec.  251.51  Definitions.

* * * * *
    Hazard tree--for purposes of vegetation management for an electric 
transmission or distribution line, any tree or part thereof (whether 
located inside or outside a right-of-way) that has been designated, 
prior to tree failure, by a certified or licensed arborist or forester 
under the supervision of the Forest Service or the owner or operator 
(a) to be dead, likely to die within the routine vegetation management 
cycle, or likely to fail within the routine vegetation management 
cycle; and (b) if the tree or part of the tree failed, likely to cause 
substantial damage or disruption of a transmission or distribution 
facility or come within 10 feet of an electric power line.
* * * * *
    Operating plan or agreement for an electric transmission or 
distribution facility--a plan or an agreement prepared by the owner or 
operator of an electric transmission or distribution facility, approved 
by the authorized officer, and incorporated by reference into the 
corresponding special use authorization that provides for long-term, 
cost-effective, efficient, and timely inspection, operation, 
maintenance, and vegetation management of the electric transmission and 
distribution facility within the right-of-way and on abutting National 
Forest System lands, including management of hazard trees, to enhance 
electric reliability, promote public safety, and avoid fire hazards.
* * * * *
    Owner or operator--for purposes of an electric transmission or 
distribution facility, the owner or operator of the facility or a 
contractor or other agent engaged by the owner or operator of the 
facility.
* * * * *
0
3. In Sec.  251.56, add paragraph (h), to read as follows:


Sec.  251.56  Terms and conditions.

* * * * *
    (h) Operating plans and agreements for electric transmission and 
distribution facilities (hereinafter, and for purposes of this 
paragraph only, ``operating plans'' and ``agreements''). An operating 
plan or agreement consistent with 36 CFR 251.56(h) is required for new 
and reauthorized electric transmission and distribution facilities on 
National Forest System lands. Operating plans and agreements must have 
prior written approval from the authorized officer.
    (1) Use of operating plans. Operating plans, rather than 
agreements, are required for electric transmission and distribution 
facilities that are subject to the mandatory reliability standards 
established by the Electric Reliability Organization and that sold more 
than 1,000,000 megawatt hours of electric energy for purposes other 
than resale during each of the 3 calendar years immediately preceding 
March 23, 2018.
    (2) Use of agreements. Electric transmission and distribution 
facilities that are not subject to the mandatory reliability standards 
established by the Electric Reliability Organization or that sold less 
than or equal to 1,000,000 megawatt hours of electric energy for 
purposes other than resale during each of the 3 calendar years 
immediately preceding March 23, 2018, may be subject to an agreement, 
instead of an operating plan.
    (3) Existing operating plans. Existing operating plans shall be 
modified at the owner's or operator's initiative as necessary to be 
consistent with 36 CFR 251.56(h) and submitted to the authorized 
officer for approval. Existing operating plans that are consistent with 
36 CFR 251.56(h) do not have to be submitted for re-approval by the 
authorized officer.
    (4) Development of proposed operating plans and agreements. Owners 
and operators may develop a proposed operating plan or agreement on 
their own or in consultation with the authorized officer.
    (5) Content of operating plans and agreements. At a minimum, 
operating plans and agreements shall:
    (i) Identify the electric transmission or distribution facility 
covered by the operating plan or agreement (hereinafter ``covered 
line'');
    (ii) Consider preexisting operating plans and agreements for the 
covered line;
    (iii) Address coordination between the owner or operator and the 
Forest Service and specify their points of contact;
    (iv) Address compliance with applicable law; applicable reliability 
and safety standards (owners and operators subject to mandatory 
reliability standards established by the Electric Reliability 
Organization or superseding standards may use those standards as part 
of their operating plan); the applicable land management plan; 
environmental compliance; resource protection; fire control; routine, 
non-routine, and emergency maintenance of the covered line; and road 
and trail construction, reconstruction, and maintenance in support of 
the covered line;
    (v) Identify best management practices for vegetation management, 
procedures for marking timber, and road and trail standards and best 
management practices;
    (vi) Address the types of activities conducted under the operating 
plan or agreement that require prior written approval from the 
authorized officer under 36 CFR 251.61, including construction, 
reconstruction, and non-routine maintenance of the covered line; non-
emergency vegetation management; and road and trail construction and 
reconstruction in support of the covered line;
    (vii) Specify timeframes for:
    (A) The owner or operator to notify the authorized officer of 
routine, non-routine, and emergency maintenance of the covered line and 
non-emergency and emergency vegetation management for the covered line;
    (B) The owner or operator to request approval from the authorized 
officer of non-routine maintenance of and non-emergency vegetation 
management for the covered line; and
    (C) The authorized officer to respond to a request by the owner or 
operator for approval of non-routine maintenance of

[[Page 50702]]

and non-emergency vegetation management for the covered line;
    (viii) Include the following procedures with regard to authorized 
officer approval of vegetation management:
    (A) Non-emergency vegetation management. Non-emergency vegetation 
management must have prior written approval from the authorized 
officer, unless all 3 of the following conditions are met:
    (1) The owner or operator has submitted a request for approval to 
the authorized officer in accordance with the specified timeframe in 
the approved operating plan or agreement;
    (2) The proposed vegetation management is in accordance with the 
approved operating plan or agreement; and
    (3) The authorized officer has failed to respond to the request in 
accordance with the specified timeframe in the approved operating plan 
or agreement.
    (B) Emergency vegetation management. If vegetation or hazard trees 
have contacted or, as specified in the operating plan or agreement, 
present an imminent danger of contacting the covered line from within 
or adjacent to the right-of-way for the covered line, the owner or 
operator may, without prior written approval from the authorized 
officer, prune or remove the vegetation or hazard trees to avoid the 
disruption of electric service and eliminate immediate fire and safety 
hazards. The owner or operator shall notify the authorized officer in 
writing of the location and quantity of the pruning or removal within 
24 hours of the pruning or removal;
    (ix) Include the following procedures for modification of an 
approved operating plan or agreement:
    (A) The authorized officer shall give the owner or operator of the 
covered line prior notice of any changed conditions that warrant a 
modification of the approved operating plan or agreement;
    (B) The authorized officer shall give the owner or operator an 
opportunity to submit a proposed modification of the approved operating 
plan or agreement, consistent with the procedures described in 
paragraph (h)(6) of this section, to address the changed conditions;
    (C) The authorized officer shall consider the proposed modification 
consistent with the procedures described in paragraph (h)(6) of this 
section; and
    (D) The owner or operator may continue to implement the approved 
operating plan or agreement to the extent it does not directly and 
adversely affect the conditions prompting the modification; and
    (x) For agreements only, reflect the relative financial resources 
of the owner or operator of the covered line compared to other owners 
or operators of an electric transmission or distribution facility.
    (6) Review and approval of proposed operating plans and agreements. 
Proposed operating plans and agreements shall be submitted to the 
authorized officer for review and approval in writing before they are 
implemented. Proposed operating plans and agreements shall be reviewed 
and approved in accordance with procedures developed jointly by the 
Forest Service and the United States Department of the Interior, Bureau 
of Land Management. These procedures shall be consistent with 
applicable law and shall specify timeframes for:
    (i) Submission of applicable agency comments on a proposed 
operating plan or agreement;
    (ii) Approval of a proposed operating plan or agreement that, to 
the maximum extent practicable, is within 120 days from the date the 
proposed operating plan or agreement was submitted; and
    (iii) Approval of any necessary modifications to an approved 
operating plan or agreement.
    (7) Expiration of approved operating plans and agreements before 
termination of the corresponding special use authorization. Upon 
expiration of an approved operating plan or agreement before 
termination of the corresponding special use authorization, the owner 
or operator must prepare a new proposed operating plan or agreement, 
either solely or in consultation with the authorized officer, and 
submit it to the authorized officer for review and approval in 
accordance with the procedures described in paragraph (h)(6) of this 
section.
    (8) Reporting of requests and responses to requests for non-
emergency vegetation management. The Forest Service shall annually 
report on its website requests for approval of non-emergency vegetation 
management pursuant to paragraph (h)(5)(viii)(A) of this section and 
responses to those requests.
    (9) Strict Liability. (i) Notwithstanding paragraph (d)(2) of this 
section, strict liability in tort may not be imposed on an owner or 
operator for injury or damages resulting from the authorized officer's 
unreasonably withholding or delaying approval of an operating plan or 
agreement or unreasonably failing to adhere to an applicable schedule 
in an approved operating plan or agreement.
    (ii) Notwithstanding paragraph (d)(2) of this section, for 10 years 
from March 23, 2018, strict liability in tort for injury or damages 
resulting from activities conducted by an owner or operator under an 
approved agreement may not exceed $500,000 per incident.
    (10) Guidance. To enhance the reliability of the electric grid and 
to reduce the threat of wildfire damage to, and wildfire caused by 
vegetation-related conditions within, electric transmission and 
distribution rights-of-way and abutting NFS lands, including hazard 
trees, the Forest Service shall issue and periodically update guidance 
to ensure that provisions are appropriately developed and implemented 
for utility vegetation management, facility inspection, and operation 
and maintenance of rights-of-way. The guidance shall:
    (i) Be developed in consultation with owners;
    (ii) Be compatible with mandatory reliability standards established 
by the Electric Reliability Organization;
    (iii) Consider all applicable law, including fire safety and 
electrical system reliability requirements, such as reliability 
standards established by the Electric Reliability Organization;
    (iv) Consider the 2016 Memorandum of Understanding on Vegetation 
Management for Powerline Rights-of-Way Among the Edison Electric 
Institute, Utility Arborist Association, the National Park Service, the 
U.S. Fish and Wildlife Service, the Bureau of Land Management, the 
Forest Service, and the U.S. Environmental Protection Agency, and any 
successor memorandum of understanding;
    (v) Seek to minimize the need for case-by-case approvals for non-
emergency vegetation management (including hazard tree removal), 
facility inspection, and operation and maintenance of electric 
transmission and distribution facilities; and
    (vi) Provide for prompt and timely review of requests to conduct 
non-emergency vegetation management.

     Dated: September 5, 2019.
Daniel James Jiron,
Acting Deputy Under Secretary, Natural Resources and Environment.
[FR Doc. 2019-20741 Filed 9-24-19; 8:45 am]
BILLING CODE 3411-15-P