[Federal Register Volume 85, Number 133 (Friday, July 10, 2020)]
[Rules and Regulations]
[Pages 41387-41394]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-13999]
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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 Powerline Facility Maintenance and Vegetation Management
Within and Abutting the Linear Boundary of a Special Use Authorization
for a Powerline Facility
AGENCY: Forest Service, USDA.
ACTION: Final rule.
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SUMMARY: The U.S. Department of Agriculture is amending its existing
special use regulations to implement section 512 of the Federal Land
Policy and Management Act (FLPMA), 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 maintenance and vegetation management of electric
transmission and distribution line facilities (powerline facilities) on
National Forest System (NFS) lands inside the linear boundary of
special use authorizations for powerline facilities and on abutting NFS
lands to remove or prune hazard trees.
DATES: This rule is effective August 10, 2020.
FOR FURTHER INFORMATION CONTACT: Reggie Woodruff, Energy Program
Manager, Lands and Realty Management, (202) 205-1196 or
[email protected].
SUPPLEMENTARY INFORMATION:
Background and Need for the Final Rule
The final 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 powerline facilities 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
FLPMA 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
[[Page 41388]]
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 facilities
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 facilities that
require the holder, in consultation with the Forest Service, to prepare
an operating plan that includes provisions governing powerline facility
maintenance and vegetation management on NFS lands within and abutting
the right-of-way (43 U.S.C. 1761(b)(1); 36 CFR 251.56(a)(1)). Special
use authorizations for powerline facilities 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 powerline facility maintenance and vegetation
management on NFS lands within the linear boundary of a special use
authorization for a powerline facility and on abutting NFS lands to
remove or prune hazard trees. These requirements build on the Forest
Service's preexisting authority in section 501(b)(1) of FLPMA (43
U.S.C. 1761(b)(1)) to require holders of powerline facility
authorizations to have an operating plan. This final rule implements
section 512.
Section 512 of FLPMA repeatedly uses the phrase, ``on abutting
lands, including hazard trees,'' in referring to vegetation management
outside the linear boundary of a special use authorization for a
powerline facility that is covered by the operating plan or agreement
for that authorization. Taking section 512 as a whole, the phrase, ``on
abutting lands, including hazard trees,'' is best interpreted as
referring to hazard trees on abutting lands. The definition for
``hazard tree'' in section 512 contains specific parameters for
determining the location of hazard trees outside the linear boundary of
a special use authorization for a powerline (i.e., if the trees failed,
they would be likely to cause substantial damage or disruption to a
transmission or distribution facility or come within 10 feet of an
electric power line). To that extent, the definition for ``hazard
tree'' prescribes the scope of vegetation management on NFS lands
abutting the linear boundary of an authorization for a powerline
facility. Accordingly, to clarify the scope of vegetation management on
abutting NFS lands under section 512 of FLPMA, the preamble and the
text of the final rule refer to vegetation management ``on abutting
lands to remove or prune hazard trees as defined in the final rule.''
The Department anticipates that implementation of the final rule
will promote the reliability of the United States' electrical grid and
will reduce the threat of damage to powerline facilities, natural
resources, and nearby communities by streamlining approval for routine
and emergency vegetation management on NFS lands within the linear
boundary of a special use authorization for a powerline facility and on
abutting NFS lands to remove or prune hazard trees as defined in the
final rule.
Summary of Public Comments
On September 25, 2019, the Forest Service published a proposed rule
in the Federal Register (84 FR 50698) with a 60-day comment period,
ending November 25, 2019, to implement section 512. The Forest Service
received 17 written comments, consisting of letters and web-based
submittals. All commenters generally supported the proposed rule.
Commenters were primarily electric utilities and generally expressed
the need for additional details and clarity on how operating plans and
agreements for a powerline facility would be reviewed and approved by
the Agency.
The intent of this final rule is to incorporate the provisions of
section 512 into the Forest Service's special use regulations, rather
than to provide specific direction on how to implement those
provisions, such as specifying timeframes and steps for Forest Service
review and approval of operating plans and agreements for a powerline
facility or categories of actions covered by operating plans and
agreements for a powerline facility that are categorically excluded
from documentation in an environmental assessment (EA) or environmental
impact statement (EIS). In coordination with the U.S. Department of the
Interior's Bureau of Land Management (BLM), which is also subject to
section 512, the Forest Service will publish proposed directives for
public comment that would provide specific direction on how to
implement section 512 consistent with BLM's implementation of the
statute.
Comments and Responses
Comment: Multiple commenters recommended that the Agency
specifically identify categorical exclusions from documentation in an
EA or EIS (CEs) that could be used for vegetation management of
powerline facilities, maintenance of powerline facilities, and other
types of activities conducted on NFS lands within the linear boundary
of a special use authorization for a powerline facility and on abutting
NFS lands to remove or prune hazard trees as defined in the final rule.
Additionally, multiple commenters noted the need for clarity on the
applicability of consultation requirements under the Endangered Species
Act (ESA) and National Historic Preservation Act (NHPA) for those
activities and how the Agency would meet those requirements with the
120-day period for review and approval of proposed operating plans and
agreements for powerline facilities.
Response: The Agency has confirmed that it has CEs to support
expedited approval of routine maintenance that involves minimal ground
disturbance and routine vegetation management that involves limited
areas on NFS lands within the linear boundary of a special use
authorization for an existing powerline facility and on abutting NFS
lands to remove or prune hazard trees as defined in the final rule.
Discussions with the U.S. Department of the Interior and the Advisory
Council on Historic Preservation have confirmed that Forest Service
approval of routine maintenance and vegetaton management on NFS lands
within the linear boundary of an authorization for an existing
powerline facility, and on abutting NFS lands to remove or prune hazard
trees as defined in the final rule, requires consultation under the ESA
and NHPA. Additional evaluation and discussions are ongoing about
review and approval of powerline facility activities to determine the
content of additional applicable CEs,
[[Page 41389]]
whether to propose legislation or amendments to Forest Service NEPA
regulations, and to determine the applicability of programmatic
agreements to satisfy consultation under the ESA and NHPA. Those
discussions will inform the Agency's forthcoming proposed directives
implementing this final rule.
Comment: Multiple commenters expressed concern that the proposed
rule did not address coordination between the Forest Service and BLM to
develop a common process for approving operating plans and agreements
for powerline facilities and vegetation management, maintenance, and
inspections conducted under those operating plans and agreements.
Response: Consistent with section 512(c)(4)(A)(iv) of FLPMA,
paragraph (h)(6)(i) of the final rule states that the procedures
developed jointly with BLM will provide that a proposed operating plan
or agreement must be approved, to the maximum extent practicable,
within 120 days from the date the proposed operating plan or agreement
was received by the authorized officer, with the understanding that
such factors as the number of proposed operating plans and agreements
under review by an authorized officer and the number of powerline
facilities covered under a single operating plan or agreement may
affect the practicability of approving a proposed operating plan or
agreement within 120 days from the date of receipt. Based on
coordination with BLM as required by section 512(c)(4)(A)(iii) of
FLPMA, paragraph (h)(6)(i) of the final rule also states that, to the
maximum extent practicable, a proposed modification to an approved
operating plan or agreement must be approved within 120 days from the
date the proposed modification was received by the authorized officer.
The Department has determined that it would be more appropriate to
enumerate other aspects of the process for approving operating plans
and agreements for powerline facilities and vegetation management,
maintenance, and inspections conducted under those operating plans and
agreements in Forest Service directives, rather than in this final
rule. The Forest Service will be publishing for public comment the
proposed directives implementing this final rule. In addition,
consistent with section 512(c)(4)(A) of FLPMA and paragraph (h)(6) of
the final rule, the Forest Service is working with BLM to develop joint
procedures for reviewing and approving proposed operating plans and
agreements, which the Agency anticipates including in the proposed
directives implementing this final rule.
The Department has determined that it would be more appropriate for
operating plans and agreements to be in effect concurrently with their
associated powerline authorization. Therefore, rather than providing
for submission of a new proposed operating plan or agreement upon
expiration of an existing operating plan or agreement before expiration
of the corresponding powerline authorization, paragraph (h)(7) of the
final rule provides that every 5 years from the approval date of an
operating plan or agreement, the owner or operator must review and, as
necessary, update the operating plan or agreement to ensure consistency
with changed conditions and submit it to the authorized officer for
review and approval. Like the proposed rule, paragraph (h)(7) of the
final rule also provides that upon expiration of a special use
authorization for a powerline facility, 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.
Comment: Multiple commenters asked how the Agency would determine
which existing operating plans are consistent with the requirements in
section 512 of FLPMA and who would make that determination.
Response: Forest Service authorized officers have delegated
authority to manage NFS lands under their jurisdiction in accordance
with applicable statues, regulations, and Forest Service directives,
including the authority to determine whether existing operating plans
are consistent with section 512, as implemented by Sec. 251.56(h) of
this final rule. The Department agrees that the proposed rule did not
specifically address the authorized officer's authority to make this
determination. Accordingly, the Department has revised paragraph (h)(3)
of the final rule to provide that the authorized officer, in
consultation with the owner or operator of a powerline facility, will
determine whether an existing operating plan for a powerline facility
is consistent with Sec. 251.56(h) and will notify the owner or
operator of that determination, and that within 18 months of the date
of notification that an existing operating plan is inconsistent with 36
CFR 251.56(h), the owner or operator must modify the existing operating
plan to be consistent with 36 CFR 251.56(h) and submit it to the
authorized officer for review and approval. The Department has further
revised paragraph (h)(3) of the final rule to provide, pursuant to the
authority in 43 U.S.C. 1761(b)(1), that if an owner or operator does
not have an operating plan, within 3 years from the effective date of
the final rule, the owner or operator must submit to the authorized
officer a proposed operating plan consistent with 36 CFR 251.56(h) for
review and approval.
Comment: Multiple commenters recommended that the Agency specify
which reliability standards could be used by electric utilities to
develop operating plans and agreements for a powerline facility.
Response: The Department has determined that it would be more
appropriate to specify applicable reliability standards for powerline
facility operating plans and agreements in forthcoming proposed Forest
Service directives, which will be published for public comment.
Comment: Multiple commenters expressed concern about a lack of
clarity regarding the difference between liability standards for
powerline facility operating plans and liability standards for
powerline facility operating agreements. One commenter stated that it
was unfair to have a lower liability standard for one segment of the
electric utility industry. Other commenters stated that strict
liability should not apply to vegetation management for powerline
facilities to give utilities a greater incentive to complete the work.
Response: The Department believes that the proposed and final rules
clearly iterate the difference between liability standards for
powerline facility operating plans and liability standards for
powerline facility operating agreements. Consistent with section
512(g)(1), paragraph (h)(9)(i) of the final rule provides for both
powerline facility operating plans and powerline facility operating
agreements that strict liability in tort may not be imposed on an owner
or operator of a powerline facility 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. These conditions on strict liability in tort do not apply to
any other type of special use besides powerline facilities.
In addition, consistent with section 512(g)(2), paragraph
(h)(9)(ii) of the final rule provides that for 10 years from the date
of enactment of section 512 on March 23, 2018, strict liability in tort
for injury or damages resulting from activities conducted by an owner
or operator under an approved powerline facility operating agreement
may not exceed $500,000 per incident. This limitation on strict
liability in tort
[[Page 41390]]
applies only to powerline facility operating agreements. It does not
apply to powerline facility operating plans or to operating plans for
any other types of special uses.
Section 504(h)(2) of FLPMA (43 U.S.C. 1764(h)(2)), which is
codified in the Forest Service's regulations at 36 CFR 251.56(d)(2),
provides that any regulation imposing strict liability in tort must
include a maximum limitation on damages commensurate with the
foreseeable risks or hazards presented.
Other than the requirement for a cap on strict liability in tort in
section 504(h)(2), the conditions on strict liability in tort in
section 512(g)(1) for operating plans and agreements, and the
limitation in section 512(g)(2) on strict liability in tort for
agreements, Title V of FLPMA imposes no restrictions on strict liabilty
in tort under a special use authorization for a powerline facility,
including for vegetation management on NFS lands within the linear
boundary of the authorization and on abutting NFS lands to remove or
prune hazard trees as defined in the final rule.
Comment: Multiple commenters requested that additional terms be
defined and that the term ``non-emergency vegetation management'' be
removed to reduce confusion in describing ``routine vegetation
management.''
Response: The Department agrees that it would be helpful to add
definitions to the final rule, consistent with Agency and utility
industry practice and based on comments received on the proposed rule,
for the following key terms of art in the context of powerline facility
maintenance and vegetation management: ``emergency maintenance,''
``non-routine maintenance,'' and ``routine maintenance''; ``emergency
vegetation management'' and ``non-emergency (routine) vegetation
management''; ``minimum vegetation clearance distance''; ``maximum
operating sag''; and ``powerline facility.''
For simplicity, the Department has changed the term ``electric
transmission or distribution facility'' to ``powerline facility,''
which is defined as ``one or more electric distribution or transmission
lines authorized by a special use authorization, and all appurtenances
to those lines supporting conductors of one or more electric circuits
of any voltage for the transmission of electric energy, overhead ground
wires, and communications equipment for communications uses that solely
support operation and maintenance of the electric distribution or
transmission lines and is not leased to other parties for
communications uses that serve other purposes.'' If an owner or
operator leases space or communications equipment to other parties for
purposes other than operation and maintenance of a powerline facility,
a separate communications use authorization is required per 36 CFR
261.10(a) and Forest Service Handbook 2709.11, Chapter 90.
The Department has retained the term ``non-emergency vegetation
management'' to clarify that it includes all vegetation management that
is not encompassed by the term ``emergency vegetation management.''
However, because the utility industry typically uses the term ``routine
vegetation management,'' the Department has added the word ``routine''
after the phrase ``non-emergency'' to this term and uses the term
``routine vegetation management'' elsewhere in the rule to refer to
``non-emergency vegetation management.''
In addition, the Department has clarified that the definition of
``hazard tree'' includes brush, shrubs, and other plants besides trees,
since these other types of vegetation may also pose a risk to a
powerline facility. The Department has also revised the definition for
``linear right-of-way'' to explain that the linear boundary of a right-
of-way is delineated by its legal description. The revised definition
clarifies what is meant by vegetation management on NFS lands inside
the linear boundary of a special use authorization for a powerline and
on abutting NFS lands to remove or prune hazard trees, for purposes of
section 512 of FLPMA.
Comment: Multiple commenters expressed concern that the proposed
regulation would require owners and operators to get additional written
approval for powerline facility maintenance and vegetation management
covered by an approved operating plan or agreement.
Response: To clarify written approval requirements, paragraph
(h)(5)(vi) of the final rule requires operating plans and agreements to
address the types of activities that the owner or operator will be
allowed to conduct upon approval of the operating plan or agreement by
the authorized officer without additional prior written approval under
existing Forest Service regulations at 36 CFR 251.61, including routine
vegetation management and routine maintenance, and those activities
that will require additional prior written approval from the authorized
officer under 36 CFR 251.61, including but not limited to non-routine
maintenance and construction of roads and trails in support of a
powerline facility.
In addition, consistent with section 512(f)(3) of FLPMA, paragraph
(h)(5)(viii) in the final rule provides that routine 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. Further, while paragraph (h)(5)(viii) of
the final rule provides that emergency vegetation management does not
require prior written approval from the authorized officer, the owner
or operator must notify the authorized officer in writing of the
location and quantity of the emergency vegetation management within 24
hours of completion.
Comment: Multiple commenters expressed concern that the proposed
regulation did not specify who would establish the applicable minimum
clearance distance between vegetation and powerline facilities. These
commenters stated that the applicable minimum vegetation clearance
distance (MVCD) should be considered and that it should be up to the
utilities to determine the applicable MVCD.
Response: The definition for ``hazard tree'' in section 512 and 36
CFR 251.51 of the final rule states that a hazard tree must be
designated by a certified or licensed arborist or forester under the
supervision of the Forest Service or the owner or operator. Section
512(c)(2) provides that owners and operators subject to mandatory
reliability standards established by the Electric Reliability
Organization (ERO) may use those standards as part of their operating
plan or agreement. The Energy Policy Act of 2005 created the ERO, an
independent, self-regulating entity that enforces mandatory electric
reliability rules on all users, owners, and operators of the nation's
electric transmission system. The North American Electric Reliability
Corporation (NERC) is the ERO that develops and enforces electric
generation and transmission reliability standards for North America.
NERC reliability standards generally establish the reliability
requirements for planning and operating the North American electric
generation and transmission system. The current NERC reliability
standard, FAC-003-4, requires electric utilities to conduct
[[Page 41391]]
vegetation management to avoid encroachment of vegetation into the
minimum vegetation clearance distance (MVCD). For example, vegetation
outside the linear boundary of a special use authorization for a
powerline facility may fall, sway, or grow into the MVCD and therefore
may have to be removed under NERC reliability standard FAC-003-4 as
part of vegetation management conducted under that authorization. Thus,
the MVCD helps determine the location of hazard trees for purposes of
section 512 of FLPMA and vegetation management under an operating plan
or agreement for a powerline facility.
The applicable MVCD under NERC reliability standard FAC-003-4 is
determined based on the voltage and height of a powerline facility and
ranges from 1 to 18 feet. The MVCD gives utilities a uniform, objective
standard for determining whether vegetation poses an imminent threat to
their powerlines and therefore constitutes a hazard that is likely to
cause substantial damage to the powerlines or disrupt powerline
service. Incorporating MVCD, an industry-wide standard, into operating
plans and agreements and powerline authorizations will provide
consistency in administration of authorizations for powerline
facilities on NFS lands.
Accordingly, in the definition for ``hazard tree,'' the Department
has added a reference to the MVCD to clarify that the applicable MVCD
may exceed the 10-foot parameter specified in section 512. In addition,
the Department has added a definition to the final rule, consistent
with Agency and utility industry practice and based on comments
received on the proposed rule, for ``minimum vegetation clearance
distance'' and a definition for ``maximum operating sag,'' a term
included in the definition for ``minimum vegetation clearance
distance.'' The applicable MVCD will be specified in the special use
authorization for a powerline facility and associated approved
operating plan or agreement. Moreover, consistent with NERC reliability
standard FAC-003-4, the Department has added language to the definition
of a hazard tree to clarify that it may include vegetation in a
position that, under geographical or atmospheric conditions, could
cause the vegetation to fall, sway, or grow into a powerline facility
before the next routine vegetation management cycle.
These definitions make clear, consistent with section 512, that
vegetation management conducted on NFS lands inside the linear boundary
of a special use authorization for a powerline facility and on abutting
NFS lands to prune or remove hazard trees, as provided for in these
definitions, is covered by the operating plan or agreement for the
powerline facility authorization and is therefore subject to the
liability standards in that authorization.
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 final rule is not significant.
Executive Order 13771
The final 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 final rule will establish procedures for the development and
approval of operating plans and agreements for vegetation management
and powerline facility maintenance on NFS lands within the linear
boundary of a right-of-way for a powerline facility and on abutting NFS
lands to remove or prune hazard trees as defined in the final rule.
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
Department has concluded that this final 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
The Department has considered this final rule under the Regulatory
Flexibility Act (5 U.S.C. 602 et seq.). This final rule will not have
any direct effect on small entities as defined by the Regulatory
Flexibility Act. The final rule will not impose recordkeeping
requirements on small entities; will not affect their competitive
position in relation to large entities; and will not affect their cash
flow, liquidity, or ability to remain in the market. Therefore, the
Forest Service has determined that this final rule will not have a
significant economic impact on a substantial number of small entities
pursuant to the Regulatory Flexibility Act.
Federalism
The Department has considered this final rule under the
requirements of E.O. 13132, Federalism, and has determined that the
final rule conforms with the Federalism principles set out in the E.O.;
will not impose any compliance costs on the states; and will 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
Department has determined that no further assessment of Federalism
implications is necessary.
Consultation and Coordination With Indian Tribal Governments
The Department has determined that national tribal consultation is
not necessary for this final rule. This final rule, which would
implement statutory requirements governing operating plans and
agreements for special use authorizations for powerline facilities on
NFS lands, is programmatic and will not have any direct effects on
tribes. Tribal consultation will occur as appropriate in connection
with specific applications for powerline facility rights-of-way on NFS
lands.
No Takings Implications
The Department has analyzed this final rule in accordance with the
principles and criteria in E.O. 12630, Governmental Actions and
Interference with Constitutionally Protected Property Rights. The
Department has determined that the final rule will not pose the risk of
a taking of private property.
Controlling Paperwork Burdens on the Public
This final 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
The Department has reviewed this final rule under E.O. 13211,
Actions
[[Page 41392]]
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. The Department has determined that this final
rule does not constitute a significant energy action as defined in the
E.O.
Civil Justice Reform
The Department has reviewed this final rule under E.O. 12988, Civil
Justice Reform. Upon adoption of this final rule, (1) all state and
local laws and regulations that conflict with the final rule or that
would impede its full implementation will be preempted; (2) no
retroactive effect will be given to the final rule; and (3) it will not
require administrative proceedings before parties may file suit in
court challenging its provisions.
Unfunded Mandates
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2
U.S.C. 1531-1538), the Department has assessed the effects of this
final rule on state, local, and tribal governments and the private
sector. This final rule will 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 Department
is amending 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 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. Amend Sec. 251.51 by
0
a. Adding in alphabetical order the definitions of ``emergency
maintenance,'' ``emergency vegetation management,'' and ``hazard
tree,'';
0
b. Revising the definition of ``linear right-of-way,''; and
0
c. Adding in alphabetical order the definitions of ``maximum operating
sage,'' ``minimum vegetation clearance distance,'' ``non-emergeny
(routine) vegetation management,'' ``non-routine maintenance,''
``operating plan or agreement for a poweline facility,'' ``owner or
operator,'' ``powerline facility,'' and ``routine maintenance''.
The additions and revision read as follows:
Sec. 251.51 Definitions.
* * * * *
Hazard tree--for purposes of vegetation management for a powerline
facility, any tree, brush, shrub, other plant, or part thereof,
hereinafter ``vegetation'' (whether located on National Forest System
lands inside or outside the linear boundary of the special use
authorization for the powerline facility), that has been designated,
prior to failure, by a certified or licensed arborist or forester under
the supervision of the Forest Service or the owner or operator to be:
(1) Dead; likely to die or fail before the next routine vegetation
management cycle; or in a position that, under geographical or
atmospheric conditions, could cause the vegetation to fall, sway, or
grow into the powerline facility before the next routine vegetation
management cycle; and
(2) Likely to cause substantial damage to the powerline facility;
disrupt powerline facility service; come within 10 feet of the
powerline facility; or come within the minimum vegetation clearance
distance as determined in accordance with applicable reliability and
safety standards and as identified in the special use authorization for
the powerline facility and the associated approved operating plan or
agreement.
* * * * *
Linear right-of-way--an authorized right-of-way for a linear
facility, such as a road, trail, pipeline, electric transmission line,
fence, water transmission facility, or fiber optic cable, whose linear
boundary is delineated by its legal description.
Maintenance. (1) Emergency maintenance--immediate repair or
replacement of any component of a powerline facility that is necessary
to prevent imminent loss, or to redress the loss, of electric service
due to equipment failure in accordance with applicable reliability and
safety standards and as identified in an approved operating plan or
agreement.
(2) Non-routine maintenance--realigning, upgrading, rebuilding, or
replacing an entire powerline facility or any segment thereof,
including reconductoring, as identified in an approved operating plan
or agreement.
(3) Routine maintenance--repair or replacement of any component of
a powerline facility due to ordinary wear and tear, such as repair of
broken strands of conductors and overhead ground wire; replacement of
hardware (e.g., insulator assembly) and accessories; maintenance of
counterpoise, vibration dampers, and grading rings; scheduled
replacement of decayed and deteriorated wood poles; and aerial or
ground patrols to perform observations, conduct inspections, correct
problems, and document conditions to provide for operation in
accordance with applicable reliability and safety standards and as
identified in an approved operating plan or agreement.
* * * * *
Maximum operating sag--The theoretical position of a powerline
facility conductor (wire) when operating at 100 degrees Celsius, which
must be accounted for when determining minimum vegetation clearance
distance.
Minimum vegetation clearance distance--a calculated minimum
distance stated in feet or meters measured from a powerline facility
conductor (wire) at maximum operating sag to vegetation on National
Forest System lands within the linear boundary of a special use
authorization for a powerline facility and on abutting National Forest
System lands to remove or prune hazard trees, which the owner or
operator uses to determine whether vegetation poses a system
reliability hazard to the powerline facility.
* * * * *
Operating plan or agreement for a powerline facility (hereinafter
``operating plan or agreement'')--a plan or an agreement prepared by
the owner or operator of a powerline 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 powerline facility on
National Forest System lands within the linear boundary of the
authorization for the powerline facility and on abutting National
Forest System lands to remove or prune hazard trees, to enhance
electric reliability, promote public safety, and avoid fire hazards.
* * * * *
Owner or operator--for purposes of a powerline facility, the owner
or operator of the powerline facility or a contractor or other agent
engaged by the owner or operator of the powerline facility.
* * * * *
Powerline facility--one or more electric distribution or
transmission lines authorized by a special use authorization, and all
appurtenances to those lines supporting conductors of one or more
electric circuits of any voltage for the transmission of electric
[[Page 41393]]
energy, overhead ground wires, and communications equipment for
communications uses that solely support operation and maintenance of
the electric distribution or transmission lines and is not leased to
other parties for communications uses that serve other purposes.
* * * * *
Vegetation management. (1) Emergency vegetation management--
unplanned pruning or removal of vegetation on National Forest System
lands within the linear boundary of a special use authorization for a
powerline facility and unplanned pruning or removal of hazard trees on
abutting National Forest System lands that have contacted or present an
imminent danger of contacting the powerline facility to avoid the
disruption of electric service or to eliminate an immediate fire or
safety hazard.
(2) Non-emergency (routine) vegetation management--planned actions
as described in an operating plan or agreement periodically taken to
remove vegetation, in whole or in part, on National Forest System lands
within the linear boundary of a special use authorization for a
powerline facility and on abutting National Forest System lands to
remove or prune hazard trees to ensure normal powerline facility
operations and to prevent wildfire in accordance with applicable
reliability and safety standards and as identified in an approved
operating plan or agreement.
0
3. Amend Sec. 251.56 by adding paragraph (h), to read as follows:
Sec. 251.56 Terms and conditions.
* * * * *
(h) Operating plans and agreements. An operating plan or agreement
consistent with this paragraph (h) is required for new and reauthorized
powerline facilities on National Forest System lands.
(1) Use of operating plans. Operating plans, rather than
agreements, are required for powerline 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 operating agreements. Powerline 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.
Powerline facilities that are not subject to an agreement must be
subject to an operating plan.
(3) Existing operating plans and lack of an operating plan. The
authorized officer shall determine, in consultation with the owner or
operator of a powerline facility, whether the existing operating plan
for that powerline facility is consistent with this paragraph (h) and
shall notify the owner or operator of that determination. Within 18
months of the date of notification that the existing operating plan is
inconsistent with this paragraph (h), the owner or operator shall
modify the existing operating plan to be consistent with this paragraph
(h) and shall submit it to the authorized officer for review and
approval. Existing operating plans that are consistent with this
paragraph (h) do not have to be submitted for reapproval by the
authorized officer. If an owner or operator does not have an operating
plan, within 3 years from August 10, 2020, the owner or operator shall
submit to the authorized officer a proposed operating plan consistent
with this paragraph (h) for review and approval.
(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 powerline 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) Describe the vegetation management, inspection, and operation
and maintenance methods that may be used to comply with all applicable
law, including fire safety requirements and reliability standards
established by the Electric Reliability Organization (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;
the applicable minimum vegetation clearance distance; procedures for
designating, marking, and removing or pruning hazard trees and other
vegetation; and road and trail standards and best management practices;
(vi) Address the types of activities that shall be allowed by the
owner or operator upon approval of the operating plan or agreement by
the authorized officer without additional prior written approval as a
new, changed, or additional use or area under 36 CFR 251.61, including
routine vegetation management and routine maintenance, and those
activities that shall require additional prior written approval from
the authorized officer as a new, changed, or additional use or area
under 36 CFR 251.61, including but not limited to non-routine
maintenance and construction of roads and trails 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
routine 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 routine 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 and routine
vegetation management for the covered line;
(viii) Include the following procedures with regard to whether
authorized officer approval is required for vegetation management:
(A) Routine vegetation management. Routine 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.
[[Page 41394]]
(B) Emergency vegetation management. Emergency vegetation
management does not require prior written approval from the authorized
officer. The owner or operator shall notify the authorized officer in
writing of the location and quantity of the emergency vegetation
management within 24 hours of completion;
(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 a powerline 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, which shall be consistent with applicable law.
These procedures shall:
(i) Provide that a proposed operating plan or agreement or proposed
modification to an approved operating plan or agreement shall be
approved, to the maximum extent practicable, within 120 days from the
date the proposed operating plan or agreement or proposed modification
was received by the authorized officer, with the understanding that
such factors as the number of proposed operating plans and agreements
under review by an authorized officer and the number of powerline
facilities covered under a single operating plan or agreement may
affect the practicability of approving a proposed operating plan or
agreement within 120 days from the date of receipt; and
(ii) Specify a timeframe for submission of applicable Agency
comments on a proposed operating plan or agreement.
(7) Review and expiration of approved operating plans and
agreements. Every 5 years from the approval date of an operating plan
or agreement, the owner or operator shall review and, as necessary,
update the operating plan or agreement to ensure consistentency with
changed conditions and shall submit it to the authorized officer for
review and approval in accordance with the procedures described in
paragraph (h)(6) of this section. Upon expiration of a special use
authorization for a powerline facility 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 routine
vegetation management. The Forest Service shall annually report on its
website requests for approval of routine 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) Forest Service directives. 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 or on,
powerline facility rights-of-way and by hazard trees on abutting
National Forest System lands, the Forest Service shall issue and
periodically update directives in its directive system (36 CFR 200.4)
to ensure that provisions are appropriately developed and implemented
for powerline facility vegetation management, powerline facility
inspection, and operation and maintenance of powerline facility rights-
of-way. The directives 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
routine vegetation management (including hazard tree removal),
powerline facility inspection, and operation and maintenance of
powerline facilities; and
(vi) Provide for prompt and timely review of requests to conduct
routine vegetation management.
James E. Hubbard,
Under Secretary, Natural Resources and Environment.
[FR Doc. 2020-13999 Filed 7-9-20; 8:45 am]
BILLING CODE 3411-15-P