[Federal Register Volume 87, Number 29 (Friday, February 11, 2022)]
[Rules and Regulations]
[Pages 7947-7950]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-02889]


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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 Right-of-Way for a Powerline Facility

AGENCY: Forest Service, (Agriculture) USDA.

ACTION: Final rule; technical amendment.

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SUMMARY: The Forest Service, U.S. Department of Agriculture, is making 
purely technical, clarifying revisions to its existing regulations 
governing procedures for operating plans and agreements for powerline 
facility inspection, operation and maintenance, and vegetation 
management. The revisions are necessary to conform definitions and text 
in the regulations to revisions made to the proposed implementing 
directive in response to public comment. These purely technical, 
clarifying revisions do not formulate standards, criteria, or 
guidelines applicable to Forest Service programs and therefore do not 
require public notice and comment under section 14(a) of the Forest and 
Rangeland Renewable Resources Planning Act of 1974.

DATES: Effective February 9, 2022.

FOR FURTHER INFORMATION CONTACT: Reggie Woodruff, Energy Program 
Manager, Lands and Realty Management, 202-205-1196 or 
[email protected].

SUPPLEMENTARY INFORMATION: This final rule makes purely technical, 
clarifying revisions to the Department's existing regulations at 36 CFR 
251.51 and 251.56(h) governing procedures for operating plans and 
agreements for powerline facility inspection, operation and 
maintenance, and vegetation management. The revisions conform 
definitions in Sec.  251.51 and text in Sec.  251.56(h) to revisions 
made to the proposed implementing directive in response to public 
comment.
    Specifically, the Department is adding the term ``qualified 
vegetation management specialist'' to the definition of ``hazard tree'' 
to be more inclusive of personnel titles used by owners and operators 
and is removing the reference to the Forest Service in connection with 
who may identify hazard trees because the owner or operator, not the 
Forest Service, is responsible for inspecting, identifying, and felling 
hazard trees.
    In the definition of ``minimum vegetation clearance distance,'' the 
Department is adding the phrase ``that is used to prevent flashover 
between conductors and vegetation for various altitudes and operating 
voltages'' and removing the phrase ``within or abutting the linear 
boundary of a special use authorization for a powerline facility'' to 
better align the definition of minimum vegetation clearance distance 
with the industry definition.
    In the definition for ``operating plan or agreement for a powerline 
facility,'' the Department is adding a reference to construction, 
reconstruction, and maintenance of access roads and trails, which are 
covered by an operating plan or agreement.
    The Department is revising the definition for ``powerline 
facility'' to clarify that it includes communications equipment that is 
owned by the owner or operator; that solely supports operation and 
maintenance of the electric distribution or transmission lines; and 
that is not leased to other parties for communications uses that serve 
other purposes. Communications equipment that does not meet these 
criteria must be authorized under a separate special use authorization.
    The Department is removing the terms ``removal'' and ``remove'' as 
they relate to hazard trees and vegetation in the definitions and text 
and replacing them with the terms ``felling'' and ``fell'' to 
accurately describe accepted treatment of hazard trees and vegetation.
    Consistent with the defined term ``linear right-of-way,'' the 
Department is replacing the phrase ``linear boundary of a special use 
authorization for a powerline facility'' with the phrase ``linear 
right-of-way for a powerline facility'' in the definitions for 
``minimum vegetation clearance distance,'' ``emergency vegetation 
management,'' ``operating plan or agreement for a powerline facility 
(operating plan or agreement),'' and ``non-emergency (routine) 
vegetation management.''
    An owner or operator that meets either of the two criteria for an 
operating agreement specified in the governing statute, section 512 of 
the Federal Land Policy and Management Act (43 U.S.C. 1772), is 
eligible for an operating agreement. An owner or operator that meets 
both criteria is also eligible. To clarify that point, the Department 
is revising Sec.  251.56(h)(2) to provide that an owner or operator 
that meets the first and/or the second criterion is eligible for an 
operating agreement.
    Consistent with the final implementing directive, for powerline 
facilities without an operating plan, the Department is revising Sec.  
251.56(h)(3) to extend the deadline for submitting a proposed operating 
plan or agreement from August 31, 2023, to 18 months from the date the 
authorized officer notifies the owner or operator that a proposed 
operating plan or agreement must be submitted, which must occur no 
later than September 30, 2026. Revised Sec.  251.56(h)(3) gives the 
authorized officer the discretion to determine the sequence of 
notification of the requirement to submit a proposed modified operating 
plan or proposed operating plan or agreement, based on factors 
enumerated in the final implementing directive.
    The final implementing directive provides for the requisite 
environmental

[[Page 7948]]

analysis and consultation for routine vegetation management to be 
completed before a proposed operating plan or agreement is approved, or 
case-by-case after a proposed operating plan or agreement is approved, 
but before routine vegetation management is conducted. Accordingly, the 
Department is revising the second criterion in Sec.  
251.56(h)(5)(viii)(A) that must be met to conduct routine vegetation 
management without authorized officer approval to state that the 
proposed routine vegetation management must be covered by approval of a 
proposed operating plan or agreement or by subsequent case-by-case 
environmental analysis and consultation.
    Also for consistency with the final implementing directive, the 
Department is revising Sec.  251.56(h)(5)(viii)(B) to provide that the 
owner or operator must notify the authorized officer by email of the 
location and type of emergency vegetation management as soon as 
practicable, but no later than 24 hours after completion, and that 
within 30 days of completion must submit to the authorized officer a 
written report detailing at a minimum the location, type, and scope of 
emergency vegetation management conducted, the reason it was conducted, 
the methods used to conduct it, and the resulting benefit.
    For consistency with the final implementing directive, the 
Department is revising Sec.  251.56(h)(7) to require that at least 
every 10 years, rather than every 5 years, from the approval date of an 
operating plan or agreement, the owner or operator must review and, as 
appropriate not just as necessary, propose updates to the operating 
plan or agreement to ensure consistency with changed conditions. In 
addition, consistent with the final implementing directive, revised 
paragraph (h)(7) provides that proposed updates to an approved 
operating plan or agreement that are deemed significant by the 
authorized officer will be treated as proposed modifications and must 
be submitted by the owner or operator for review and approval by the 
authorized officer in accordance with the procedures described in 
paragraph (h)(6). Revised paragraph (h)(7) further provides that 
proposed updates that are deemed non-significant by the authorized 
officer may be made by written agreement of the owner or operator and 
the authorized officer.

Regulatory Certifications

Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Consistent with Executive Order (E.O.) 12866, the Office of 
Information and Regulatory Affairs (OIRA) in the Office of Management 
and Budget will determine whether proposed, interim, and final rules 
that impose, eliminate, or modify requirements on non-Forest Service 
parties are significant and will review any proposed, interim, or final 
rules that OIRA has designated as significant. This final rule does not 
impose, eliminate, or modify requirements on non-Forest Service parties 
and therefore does not require a significance determination by OIRA. 
E.O. 13563 reaffirms the principles of E.O. 12866 while calling for 
improvements in the nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The Forest Service has developed this final rule consistent with E.O. 
13563.

Congressional Review Act

    Since this final rule does not impose, eliminate, or modify 
requirements on non-Forest Service parties, it is not a major rule as 
defined by the Small Business Regulatory Enforcement Fairness Act of 
1996 (known as the Congressional Review Act), 5 U.S.C. 804(2).

National Environmental Policy Act

    This final rule will make purely technical, clarifying revisions to 
existing Forest Service regulations at 36 CFR 251.51 and 251.56(h) to 
conform to revisions made to the proposed implementing directive in 
response to public comment. Agency regulations at 36 CFR 220.6(d)(2) 
(73 FR 43093) exclude from documentation in an environmental assessment 
(EA) or environmental impact statement (EIS) ``rules, regulations, or 
policies to establish Service-wide administrative procedures, program 
processes, or instructions.'' The Forest Service has concluded that 
this final rule falls within this category of actions and that no 
extraordinary circumstances exist which would require preparation of an 
EA or EIS.

Regulatory Flexibility Act Analysis

    The Forest Service has considered this final rule under the 
requirements of 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 Forest Service has considered this final rule under the 
requirements of E.O. 13132, Federalism. The Forest Service has 
determined that the final rule conforms with the federalism principles 
set out in this E.O.; will not impose any compliance costs on the 
states; and will not have substantial direct effects on the states, on 
the relationship between the Federal government and the states, or on 
the distribution of power and responsibilities among the various levels 
of government. Therefore, the Forest Service has concluded that the 
final rule does not have Federalism implications.

Consultation With Tribal Governments

    The Forest Service has reviewed this final rule in accordance with 
the requirements of E.O. 13175, Consultation and Coordination with 
Indian Tribal Governments. The Forest Service has determined that 
national tribal consultation is not necessary for the final rule. The 
final rule, which will make purely technical, clarifying revisions to 
existing Forest Service regulations at 36 CFR 251.51 and 251.56(h) to 
conform to revisions made to the proposed implementing directive in 
response to public comment, does not impose, eliminate, or modify 
requirements on non-Forest Service parties and therefore does not have 
any direct effects on tribes.

Environmental Justice

    The Forest Service has considered the final rule under the 
requirements of E.O. 12898, Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations. The Forest 
Service has determined that the final rule is consistent with E.O. 
12898.

No Takings Implications

    The Forest Service has analyzed the final rule in accordance with 
the principles and criteria in E.O. 12630, Governmental Actions and 
Interference with Constitutionally Protected Property Rights. The 
Forest Service has determined that the final rule will not

[[Page 7949]]

pose the risk of a taking of private property.

Energy Effects

    The Forest Service has reviewed the final rule under E.O. 13211, 
Actions Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. The Forest Service has determined that the final 
rule will not constitute a significant energy action as defined in E.O. 
13211, and OIRA has not otherwise designated the final rule as a 
significant energy action.

Civil Justice Reform

    The Forest Service has analyzed the final rule in accordance with 
the principles and criteria in E.O. 12988, Civil Justice Reform. Upon 
issuance of the final rule, (1) all state and local laws and 
regulations that conflict with the final rule or that impede its full 
implementation will be preempted; (2) no retroactive effect will be 
given to this 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), signed into law on March 22, 1995, the Forest 
Service has assessed the effects of the final rule on state, local, and 
tribal governments and the private sector. The 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.

Controlling Paperwork Burdens on the Public

    The final rule does not contain information collection requirements 
as defined in 5 CFR part 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.

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 forth 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. The authority citation for part 251 continues to read as follows:

    Authority: 16 U.S.C. 472, 479b, 551, 1134, 3210, 6201-13; 30 
U.S.C. 1740, 1761-1771.


0
2. The authority citation for subpart B continues 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
3. Amend Sec.  251.51 by revising the definitions of ``Hazard tree'', 
``Minimum vegetation clearance distance'', ``Operating plan or 
agreement for a powerline facility (hereinafter ``operating plan or 
agreement'')'', ``Powerline facility'', and ``Vegetation management'' 
to 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 NFS lands inside or 
outside the linear right-of-way for the powerline facility), that has 
been designated, prior to failure, by a certified or licensed arborist, 
qualified vegetation management specialist, or forester under the 
supervision of 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.
* * * * *
    Minimum vegetation clearance distance--the calculated distance 
(stated in feet or meters) that is used to prevent flashover between 
conductors and vegetation for various altitudes and operating voltages. 
The MVCD is measured from a conductor's maximum operating sag to 
vegetation on NFS lands within the linear right-of-way for a powerline 
facility and on NFS lands adjacent to either side of the linear right-
of-way for a powerline facility for purposes of felling or pruning 
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 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 NFS lands within the 
linear right-of-way for the powerline facility and on NFS lands 
adjacent to either side of the linear right-of-way to fell or prune 
hazard trees and to construct, reconstruct, and maintain access roads 
and trails, to enhance electric reliability, promote public safety, and 
avoid fire hazards.
* * * * *
    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 
energy, overhead ground wires, and communications equipment that is 
owned by the owner or operator; that solely supports operation and 
maintenance of the electric distribution or transmission lines; and 
that is not leased to other parties for communications uses that serve 
other purposes.
* * * * *
    Vegetation management. (1) Emergency vegetation management--
unplanned felling and pruning of vegetation on National Forest System 
lands within the linear right-of-way for a powerline facility and 
unplanned felling and pruning 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 
fell or prune vegetation on National Forest System lands within the 
linear right-of-way for a powerline facility and on abutting National 
Forest System lands to fell or prune hazard trees to

[[Page 7950]]

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
4. Amend Sec.  251.56 by revising paragraphs (h)(2), (h)(3), 
(h)(5)(viii), (h)(7), and (h)(10)(v) to read as follows:


Sec.  251.56  Terms and Conditions

* * * * *
    (h) * * *
    (2) Use of operating agreements. Powerline facilities that are not 
subject to the mandatory reliability standards established by the 
Electric Reliability Organization and/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 paragraph (h) of this 
section 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 paragraph (h) of this section, the 
owner or operator shall modify the existing operating plan to be 
consistent with paragraph (h) of this section or, if eligible, shall 
prepare a proposed operating agreement and shall submit the proposed 
modified operating plan or proposed operating agreement to the 
authorized officer for review and approval. Existing operating plans 
that are consistent with paragraph (h) of this section do not have to 
be submitted for reapproval by the authorized officer. If an owner or 
operator does not have an operating plan, within 18 months of the date 
of notification from the authorized officer that a proposed operating 
plan or agreement must be submitted, the owner or operator shall submit 
to the authorized officer a proposed operating plan or agreement 
consistent with paragraph (h) of this section for review and approval. 
The authorized officer shall provide notification of the requirement to 
submit a proposed modified operating plan or a proposed operating plan 
or agreement no later than September 30, 2026. The authorized officer 
has the discretion to determine the sequence of notification, based on 
factors enumerated in implementing Forest Service directives.
* * * * *
    (5) * * *
    (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 routine vegetation management is covered by 
approval of a proposed operating plan or agreement or by subsequent 
case-by-case environmental analysis and consultation; and
    (3) The authorized officer has failed to respond to the request in 
accordance with the specified timeframe in the approved operating plan 
or agreement.
    (B) Emergency vegetation management. Emergency vegetation 
management does not require prior written approval from the authorized 
officer. The owner or operator shall notify the authorized officer by 
email of the location and type of emergency vegetation management as 
soon as practicable, but no later than 24 hours after completion. 
Within 30 days of completion, the owner or operator shall submit to the 
authorized officer a written report detailing at a minimum the 
location, type, and scope of emergency vegetation management conducted, 
the reason it was conducted, the methods used to conduct it, and the 
resulting benefit;
* * * * *
    (7) Review and expiration of approved operating plans and 
agreements. At least every 10 years from the approval date of an 
operating plan or agreement, the owner or operator shall review and, as 
necessary or appropriate, propose updates to the operating plan or 
agreement to ensure consistency with changed conditions. Proposed 
updates to an approved operating plan or agreement that are deemed 
significant by the authorized officer shall be treated as proposed 
modifications and shall be submitted by the owner or operator for 
review and approval by the authorized officer in accordance with the 
procedures described in paragraph (h)(6) of this section. Proposed 
updates that are deemed non-significant by the authorized officer may 
be made by written agreement of the owner or operator and the 
authorized officer. Upon expiration of a special use authorization for 
a powerline facility, the owner or operator shall prepare a new 
proposed operating plan or agreement, either solely or in consultation 
with the authorized officer, 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.
* * * * *
    (10) * * *
    (v) Seek to minimize the need for case-by-case approvals for 
routine vegetation management (including hazard tree felling and 
pruning), powerline facility inspection, and operation and maintenance 
of powerline facilities; and
* * * * *

    Dated: February 7, 2022.
Meryl Harrell,
Deputy Under Secretary, Natural Resources and Environment.
[FR Doc. 2022-02889 Filed 2-9-22; 11:15 am]
BILLING CODE 3411-15-P