[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