[Federal Register Volume 88, Number 140 (Monday, July 24, 2023)]
[Proposed Rules]
[Pages 47442-47453]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-15453]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 29

[Docket No. FWS-HQ-NWRS-2019-0017; FF09R50000-XXX-FVRS8451900000]
RIN 1018-BD78


Streamlining U.S. Fish and Wildlife Service Permitting of Rights-
of-Way Across National Wildlife Refuges and Other U.S. Fish and 
Wildlife Service-Administered Lands

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; revisions and reopening of the comment period.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are revising 
our proposed rule that would streamline our process for permitting of 
rights-of-way across National Wildlife Refuge System lands and other 
Service-administered lands. By aligning Service processes more closely 
with those of other Department of the Interior (DOI) bureaus, to the 
extent practicable and consistent with applicable law, we will reduce 
the amount of time the Service requires to process applications for 
rights-of-way across Service-managed lands. We originally proposed 
revisions that included requiring a preapplication meeting and use of a 
standard application, allowing electronic submission of applications, 
and providing the Service with additional flexibility, as appropriate, 
to determine the fair market value or fair market rental value of 
rights-of-way across Service-managed lands. We now further propose new 
permit terms and conditions and other regulatory changes. The Service 
seeks comments on this revised proposed rule.

DATES: The public comment period on the proposed rule that published on 
January 19, 2021, at 86 FR 5120, is reopened. We will accept comments 
until August 23, 2023.

ADDRESSES: This revised proposed rule, the original proposed rule (86 
FR 5120, January 19, 2021), supporting documents, and the comments we 
received on the proposed rule are available at https://www.regulations.gov at Docket No. FWS-HQ-NWRS-2019-0017.
    Information collection requirements: Written comments and 
suggestions on the information collection requirements may be submitted 
at any time to the Service Information Collection Clearance Officer, 
U.S. Fish and Wildlife Service, 5275 Leesburg Pike, MS: PRB (JAO/3W), 
Falls Church, VA 22041-3803 (mail); or [email protected] (email). 
Please reference ``OMB Control Number 0596-0249'' in the subject line 
of your comments.

FOR FURTHER INFORMATION CONTACT: Ken Fowler, U.S. Fish and Wildlife 
Service, MS: NWRS, 5275 Leesburg Pike, Falls Church, VA 22041; (703) 
358-1876. Individuals in the United States who are deaf, deafblind, 
hard of hearing, or have a speech disability may dial 711 (TTY, TDD, or 
TeleBraille) to access telecommunications relay services. Individuals 
outside the United States should use the relay services offered within 
their country to make international calls to the point of contact in 
the United States.

SUPPLEMENTARY INFORMATION: 

Background

    The Service's mission is working with others to conserve, protect, 
and enhance, fish, wildlife, plants, and their habitats for the 
continuing benefit of the American people. The Service has some amount 
of management responsibility for more than 96 million terrestrial acres 
as well as an additional 760 million acres of submerged lands in marine 
national monuments. The 96 million acres of terrestrial land includes 
approximately 89 million acres where the Service is the principal land 
manager and permitting authority; nearly 4.9 million acres of 
conservation easements on private lands, where landowners are the 
principal land managers, but the Service has a permitting role when a 
proposed use will affect the United States' real property interest; 
more than 1.7 million acres of public land where another Federal agency 
is the principal land manager and permitting authority, but where the 
Service has some management responsibility through an agreement with 
another agency; and approximately 775,000 acres under a temporary lease 
or agreement where another entity is the permitting authority.
    Of the 89 million acres of terrestrial land principally managed by 
the Service, 76.8 million acres are in Alaska, 12.2 million acres are 
in the lower 48 States, and 50,000 acres are in Hawaii. The vast 
majority of these acres are part of the National Wildlife Refuge System 
(Refuge System), the mission of which is to administer a national 
network of lands and waters for the conservation, management, and where 
appropriate, restoration of the fish, wildlife, and plant resources and 
their habitats within the United States for the benefit of present and 
future generations of Americans (16 U.S.C. 668dd(a)(2)). The total also 
includes approximately 21,000 acres of public land in the National Fish 
Hatchery System, which the Service manages for the propagation and 
distribution of fish and other aquatic animal life.
    The 89 million acres of terrestrial land includes more than 20 
million acres of designated wilderness that the Service manages for 
``the preservation of their wilderness character'' in accordance with 
the Wilderness Act of 1964 (16 U.S.C. 1131 et seq.). Subject to 
existing private rights, and special provisions included in specific 
wilderness-designation statutes and the Alaska National Interest Lands 
Conservation Act (ANILCA; Pub. L. 96-487; 16 U.S.C. 3101 et seq.), the 
Wilderness Act prohibits commercial enterprises and permanent roads. 
The law also prohibits temporary roads; motor vehicles, motorized 
equipment, motorboats, landing of aircraft, and other forms of 
mechanical transport; structures; and installations, unless their use 
can be

[[Page 47443]]

demonstrated to be necessary to meet minimum requirements for the 
administration of the area for Wilderness Act purposes.

Statutory Authority

    Refuge System lands and waters are managed according to the 
authorities of the National Wildlife Refuge System Administration Act 
of 1966 (Administration Act; 16 U.S.C. 668dd-668ee), as amended by the 
National Wildlife Refuge System Improvement Act of 1997 (Improvement 
Act; Pub. L. 105-57), and ANILCA. For lands in Alaska, the Improvement 
Act specifies that ANILCA provisions prevail in any situation in which 
there is a conflict between any provision in the Improvement Act and 
any provision of ANILCA. If a right-of-way across Refuge System lands 
is specifically authorized by ANILCA, then the Service must follow the 
procedures in 43 CFR part 36 when permitting the right-of-way and 
follow other applicable Refuge System laws and regulations where they 
do not conflict with ANILCA.
    The Administration Act authorizes the Service to permit a new use, 
or expand, renew, or extend an existing use, of a refuge only when the 
Service determines it is a compatible use. The term ``compatible use'' 
means a wildlife-dependent recreational use or any other use of a 
refuge that, in the sound professional judgment of the Service 
Director, will not materially interfere with or detract from the 
fulfillment of the mission of the Refuge System or the purpose(s) of 
the refuge.

Compatible Use Determinations

    A ``compatibility determination'' is a written determination, 
signed and dated by the Refuge Manager, that an existing or new use of 
a refuge is compatible with the Refuge System mission and the 
purpose(s) of the refuge. Currently, there are more than 560 national 
wildlife refuges, and each refuge has different establishing 
authorities, purposes, habitat types, wildlife species, and public 
uses, which can result in different compatibility determinations for 
the same use. The Improvement Act required the Service to issue 
regulations establishing a process for determining whether a proposed 
use is a compatible use; these regulations are set forth in title 50 of 
the Code of Federal Regulations in part 26. The Improvement Act 
authorizes the Service to permit a right-of-way across Refuge System 
land only when the right-of-way is a compatible use.
    The Improvement Act's compatibility requirements apply only to 
Service permitting of rights-of-way across Refuge System lands and do 
not apply to other Service lands, except in the case of National Fish 
Hatchery System lands, where, by regulation at 50 CFR 70.6, the Refuge 
compatibility requirements in 50 CFR part 26 are equally applicable to 
fish hatcheries, and at 50 CFR 70.7, where the right-of-way regulations 
are equally applicable to fish hatcheries. The Service processes 
applications for other rights-of-way across lands outside the Refuge 
System and National Fish Hatchery System under the applicable authority 
cited at 43 CFR part 2800, and these lands are not subject to the 
Improvement Act's compatibility requirement.
    The Administration Act authorizes the Secretary of the Interior, 
acting through the Service Director, to issue a right-of-way permit 
across Refuge System lands only after the applicant pays the Service 
the fair market value or fair market rental value of the right-of-way, 
unless the applicant is exempt from such payment by any other provision 
of Federal law, including ANILCA title XI. In addition, before issuing 
a right-of-way permit, the Service must assess the effects of the 
proposed use, as required by the National Environmental Policy Act of 
1969 (NEPA; 42 U.S.C. 4321 et seq.); the Endangered Species Act of 1973 
(ESA; 16 U.S.C. 1531 et seq.), as amended; the National Historic 
Preservation Act of 1966 (NHPA; 54 U.S.C. 300101 et seq.); and other 
applicable laws and Executive orders.

Existing Rights-of-Way

    The regulations at 50 CFR 26.41 state that, for existing rights-of-
way, the Service will not make a compatibility determination and will 
deny any request for maintenance of an existing right-of-way that will 
affect a unit of the Refuge System, unless:
     The design adopts appropriate measures to avoid resource 
impacts and includes provisions to ensure no net loss of habitat 
quantity and quality;
     Restored or replacement areas identified in the design are 
afforded permanent protection as part of the national wildlife refuge 
or wetland management district affected by the maintenance; and
     All restoration work is completed by the applicant prior 
to any title transfer or recording of the easement, if applicable.
    In accordance with the Improvement Act, in instances where an 
existing use is authorized for more than 10 years (such as an electric 
utility right-of-way), the Service will not reevaluate whether the use 
is a compatible use during the permit term so long as the right-of-way 
holder is in compliance with all the terms and conditions of the 
permit. In a permit's terms and conditions, the Service may require 
permit modifications at a future date to ensure that the use remains a 
compatible use. All right-of-way permits issued by the Service include 
language allowing the Service to terminate the right-of-way permit if 
the permittee's use violates the permit terms and conditions.
    Additionally, this proposed rule and the Improvement Act's 
compatibility requirement do not apply to permanent rights-of-way in 
existence prior to land acquisitions by the United States, including 
prior existing highway rights-of-way held by State and local units of 
government, except in situations where there is a proposed expansion, 
rerouting, or additional use of a right-of-way that will encumber 
Refuge System lands. The Improvement Act requires that all uses of 
Refuge System lands be compatible with the purpose(s) for which those 
areas were established and the mission of the Refuge System, and 
activities not authorized by a preexisting right-of-way are subject to 
50 CFR 26.41 and the procedures in this proposed rule.
    The Service may not authorize an expansion, rerouting, or 
additional use of a right-of-way that will encumber Refuge System lands 
unless the use is compatible with the purpose(s) for which those areas 
were established and the Refuge System mission.

Original Proposed Amendments to the Right-of-Way Regulations

    On January 19, 2021, we published in the Federal Register (86 FR 
5120) a proposed rule to revise and streamline Service regulations for 
permitting of rights-of-way by aligning Service processes more closely 
with those of other DOI bureaus, to the extent practicable and 
consistent with applicable law. The original proposed rule proposed to 
revise the Service's regulations in 50 CFR part 29, subpart B, for 
permitting of rights-of-way across Service lands. The proposed changes 
would streamline the right-of-way permitting process for proposed uses 
on Service-managed lands and reorganize the right-of-way regulations. 
For a description of the substantive changes originally proposed to the 
regulations in 50 CFR part 29, subpart B, see the January 19, 2021, 
proposed rule (86 FR 5120).

Summary of Comments and Responses

    We accepted public comments on the proposed rule for 60 days, 
ending March 22, 2021. By that date, we received 15 comments on the 
proposed rule. Three

[[Page 47444]]

comments suggested that the Service make no changes to its regulations 
to streamline right-of-way permitting. Overall, nine comments suggested 
no additional changes to those we had proposed. We discuss the 
remaining comments by topic, below.
    Comment (1): The State of Alaska and Doyan, an Alaska Native 
corporation, commented that ANILCA authorizes certain types of rights-
of-way in Alaska, and that these rights-of-way have their own set of 
regulations in 43 CFR part 36.
    Our Response: In this document, we updated the proposed rule to 
clarify that rights-of-way authorized by ANILCA must follow the 
procedures in 43 CFR part 36.
    Comment (2): The State of Utah and the Incorporated Research 
Institutions for Seismology suggested that, in remote areas, requiring 
an applicant to provide a survey plat prepared by a licensed 
professional land surveyor or another professional licensed by the 
State will create an unnecessary burden. These commenters suggested 
that, in remote areas located far from any road system, the Service 
should waive the requirement for an applicant to provide a survey plat 
before the Service will issue a right-of-way permit.
    Our Response: The regulations as previously written required 
applicants to provide documentation that ``show the right-of-way in 
such detail that the right-of-way can be accurately located on the 
ground.'' As part of the development of the proposed rule, the Service 
reviewed different types of location information, including GIS 
coordinates, provided by some applicants in lieu of a survey plat, and 
found that the information was generally insufficient for the Service 
to accurately locate these sites on the ground.
    The purpose of the revised land-survey portion of the proposed 
regulations is to standardize applicant documentation that supports the 
geographic location, linear length and direction, and overall land area 
for those uses that will alter the landscape or otherwise provide for 
long-term exclusive use of Federal land within national wildlife 
refuges. The proposed rule requires an applicant to provide a survey 
plat prepared by a licensed professional land surveyor or another 
professional licensed by the State before the Service will issue a 
right-of-way permit. However, the proposed rule does not require 
applicants to submit a survey plat with their initial application, and, 
in most cases, the Service is able to determine whether a proposed use 
is a compatible use before the applicant must provide a survey plat. 
The Service recognizes the challenges in surveying rights-of-way in 
remote areas. However, the Service requires that a tenable right-of-way 
boundary is in place and locatable on the ground. We did not make any 
changes to the proposed rule as a result of these comments.
    Comment (3): The Incorporated Research Institutions for Seismology 
singled out the EarthScope: Transportable Array project, which installs 
seismic monitoring stations in remote locations throughout Alaska, as a 
scientific project that will be burdened if the Service requires 
applicants to provide a survey plat before the agency permits a right-
of-way.
    Our Response: The Service issues right-of-way permits to authorize 
longer term uses, typically uses lasting 10 years or more. The Service 
issues special use permits to authorize short-term uses of Refuge 
System lands, and special use permits do not require a survey plat. To 
authorize nonpermanent placement of equipment on Refuge System lands 
for short-term scientific research purposes, the Service may issue a 
special use permit if the Service determines the use is a compatible 
use. We did not make any changes to the proposed rule as a result of 
these comments.
    Comment (4): ExteNet Systems suggested that the Service exempt 
``small wireless facilities'' (as that term is defined at 47 CFR 
1.6002(l)) from the requirement to pay the fair market value or fair 
market rental value for use and occupancy of Service land, and, in its 
place, implement a fixed use and occupancy fee of $270 per year for 
each small wireless facility.
    Our Response: The Administration Act requires the Service to obtain 
payment of fair market value or fair market rental value for use and 
occupancy of Refuge System land before permitting a right-of-way. If 
the Department of the Interior approves a fee schedule for small 
wireless facilities that assesses the fair market value or fair market 
rental value for use and occupancy of Federal land for small wireless 
facilities, then this rule would allow the Service to use that fee 
schedule. We did not make any changes to the proposed rule as a result 
of these comments.
    Comment (5): The State of Alaska and the State of Utah stated that 
the Service has no authority to regulate lands within existing State 
road and highway systems, and they requested that the Service clarify 
that these proposed regulations do not apply to existing State road and 
highway systems.
    Our Response: This proposed rule has no impact on prior existing 
highway rights-of-way held by State and local units of government on 
FWS-administered land, except that, consistent with 23 CFR 645.205, 
activities not authorized by a prior existing highway right-of-way, as 
well as activities that fall outside the footprint of an existing 
right-of-way, are subject to 50 CFR 26.41 and the procedures in this 
revised proposed rule. Under 50 CFR 26.41, which implements the 
Improvement Act's compatible-use requirement, the Service may not 
authorize an expansion, rerouting, or additional use of a right-of-way 
that will encumber Refuge System lands unless the use is compatible 
with the purpose(s) for which those areas were established. We did not 
make any changes to the proposed rule as a result of these comments.
    Comment (6): The National Rural Electric Cooperative Association 
suggested that the Service clarify that the compatible-use requirement 
for rights-of-way across Refuge System land does not apply to Service 
lands outside the Refuge System.
    Our Response: We clarified that Refuge compatibility requirements 
do not apply to lands outside the Refuge System and National Fish 
Hatchery System. By regulation at 50 CFR 70.6, the Refuge compatibility 
requirements in 50 CFR part 26 are applicable to fish hatcheries.
    Comment (7): A commenter suggested we eliminate gender-specific 
references.
    Our Response: We agree and made appropriate changes to the proposed 
regulatory text in this revised proposed rule.

Changes From the Proposed Rule

    As discussed above, under Summary of Comments and Responses, we 
made changes to the proposed rule based on comments we received. We 
clarified that permitting for rights-of-way authorized by ANILCA must 
follow the procedures in 43 CFR part 36. We clarified that the 
compatible-use requirement for rights-of-way applies to rights-of-way 
on Refuge System land and does not apply to rights-of-way on other 
Service lands, except in the case of National Fish Hatchery System 
lands, where, by regulation at 50 CFR 70.6, the Refuge compatibility 
requirements in 50 CFR part 26 are equally applicable to fish 
hatcheries. We also eliminated gender-specific references in the 
proposed rule.
    In addition to these changes, we determined that additional 
regulatory revisions are also necessary for clarity and to align 
Service requirements more

[[Page 47445]]

closely with those of other DOI bureaus. Under Sec.  29.21-3, we 
clarified that our evaluation of rights-of-way previously permitted for 
more than 10 years will examine compliance with the terms and 
conditions of the authorization and not reexamine the original 
authorization, consistent with 16 U.S.C. 668dd(d)(3)(B)(vii). Under 
Sec.  29.21-7, we clarified that a permit will be issued for a term of 
up to 50 years when the Service Regional Director deems it appropriate, 
or for a lesser term, as the existing regulatory language authorizing a 
permit term (i.e., generally up to 50 years, or so long as the permit 
is used for the purpose for which it was issued, or for a lesser term 
when considered appropriate) is interpreted inconsistently by different 
Service Regional offices.
    Under Sec.  29.21-4(b)(2), we clarified that an applicant must 
provide an environmental analysis for a proposed new right-of-way, but 
that an environmental analysis for renewals of existing rights-of-way 
that involve no changes to the permitted use need address only the 
impacts of ongoing operation and maintenance and any new statutory 
requirements since the original permit issuance. We also clarified 
that, before the Service will issue a right-of-way permit, an applicant 
must provide a preliminary site and facility construction plan for a 
proposed right-of-way that requires construction, and provide a 
vegetation management plan when vegetation will be disturbed by 
construction, operation, or maintenance of the right-of-way; however, 
this proposed rule would provide the Service Regional Director 
discretion with respect to timing, i.e., when the Service requires this 
information. The original proposed rule left it to a Regional Director 
to determine, in all cases, whether the Service requires an 
environmental analysis, preliminary construction plan, and vegetation 
management plan.
    Consistent with our goal of aligning Service processes more closely 
with those of other DOI bureaus, we propose to update Sec.  29.21-6 to 
clarify our cost-recovery procedures for application processing and 
monitoring of rights-of-way. Under proposed Sec.  29.21-6(c)(2), the 
Regional Director has the discretion to waive reimbursement for Service 
costs for right-of-way application evaluation and processing activities 
and monitoring activities so long as there are appropriated funds for 
these activities. Under Sec.  29.21-6(d), we clarified that payments 
received by the Service to reimburse the United States for the costs 
incurred in evaluating and processing applications, and for monitoring, 
will be deposited into the United States Treasury until such time that 
any provision of law allows these payments to supplement the Service's 
appropriation.
    Under Sec.  29.21-8, we updated our proposed permit terms and 
conditions to make them more consistent with those of other DOI 
bureaus. We also clarified that certain permit terms and conditions are 
always required and cannot be waived, and that other terms and 
conditions are required but may be waived if the Regional Director 
determines they are not relevant to the requested use. Under Sec.  
29.21-8(e), we added the option for the Service to require a bond for a 
right-of-way when the Regional Director determines that the Service is 
likely to incur reclamation costs due to the construction or operation 
of the right-of-way, or if the right-of-way is abandoned or terminated; 
similar to the Bureau of Land Management, we propose to exempt Federal, 
State, and local governments from these bonding requirements. Under 
Sec.  29.21-8(f), we added terms and conditions for rights-of-way for 
communications facilities to implement the Mobile Now Act (47 U.S.C. 
1455(d)(1)).
    Under Sec.  29.21-11(b), we clarified that the terms of the right-
of-way permit will specify the amount of the lump sum paid by the 
applicant for use and occupancy during the current permit term, or, if 
applicable, the initial annual rental payment amount for use and 
occupancy of the permitted area. Under Sec.  29.21-11(d), we clarified 
that, consistent with 16 U.S.C. 668dd(d)(2), payments received by the 
Service for use and occupancy of rights-of-way on Refuge lands and 
interests in land will be deposited into the Migratory Bird 
Conservation Fund to carry out the provisions of the Migratory Bird 
Conservation Act (16 U.S.C. 715 et seq.) and the Migratory Bird Hunting 
Stamp Act (16 U.S.C. 718 et seq.). We also clarified that, consistent 
with 16 U.S.C. 715s(a), payments received for use and occupancy of 
rights-of-way on other Service-managed lands and interests in land will 
be deposited into the National Wildlife Refuge Fund, to make payments 
annually to counties and other units of local government.
    We propose to revise Sec.  29.21-13(m) to be consistent with Public 
Law 101-475, enacted October 3, 1990, which amended the Mineral Leasing 
Act to eliminate the 60-day waiting period after the Secretary of the 
Interior notifies Congress of DOI's intention to permit a right-of-way 
for a pipeline 24 inches or more in diameter that will be used for the 
transportation of oil, natural gas, synthetic liquid or gaseous fuels, 
or any refined product produced from these substances.
    Finally, we updated the structure of the regulatory language to 
improve readability.

Required Determinations

    As stated above, before issuing a right-of-way permit, the Service 
must assess the effects of the proposed use, as required by NEPA, the 
ESA, and the NHPA as well as other applicable laws and Executive 
orders. In regard to NEPA, we believe that this proposed rulemaking 
action qualifies for a categorical exclusion as described in 43 CFR 
46.210(i) for rulemaking actions that are primarily procedural in 
nature. As set forth in that regulation, under this proposed rule, we 
will conduct NEPA analysis for individual permit applications.
    For descriptions of our actions to ensure compliance with the 
following statutes and Executive orders, see our January 19, 2021, 
proposed rule (86 FR 5120):
     Regulatory Flexibility Act;
     Paperwork Reduction Act of 1995;
     Unfunded Mandates Reform Act;
     Executive Orders 12630, 12866, 12988, 13132, 13175, 13211, 
and 13563.

List of Subjects in 50 CFR Part 29

    Public lands mineral resources, Public lands rights-of-way, 
Wildlife refuges.

Proposed Regulation Promulgation

    For the reasons given in the preamble, we hereby propose to further 
amend part 29, subchapter C of chapter I, title 50 of the Code of 
Federal Regulations, as proposed to be amended January 19, 2021, at 86 
FR 5120, as set forth below:

PART 29--LAND USE MANAGEMENT

0
1. The authority citation for part 29 continues to read as follows:

    Authority: 5 U.S.C. 301; 16 U.S.C. 460k, 664, 668dd, 685, 690d, 
715i, 725, 3161; 30 U.S.C. 185; 31 U.S.C. 3711, 9701; 40 U.S.C. 319; 
43 U.S.C. 315a; 113 Stat. 1501A-140.

0
2. Amend Sec.  29.21 by:
0
a. Revising the section heading;
0
b. Adding introductory text;
0
c. Adding the definitions for ``ANILCA'' and ``National Fish Hatchery 
System land'' in alphabetical order;
0
d. Revising the definitions for ``National Wildlife Refuge System 
land'' and ``Other lands''; and
0
e. Adding the definitions for ``Regional Director'' and ``Right-of-
way'' in alphabetical order.
    The revisions and additions read as follows:

[[Page 47446]]

Sec.  29.21  Definitions.

    In this subpart, the following terms will have the meanings set 
forth in this section:
    ANILCA means the Alaska National Interest Lands Conservation Act 
(16 U.S.C. 3101 et seq.).
* * * * *
    National Fish Hatchery System land means lands and waters, and 
interests therein, administered by the Secretary to propagate and 
distribute fish and other aquatic animal life and managed for the 
protection of all species of wildlife.
    National Wildlife Refuge System land means lands and waters, and 
interests therein, administered by the Secretary under the National 
Wildlife Refuge System Administration Act (16 U.S.C. 668dd-668ee), as 
amended, including wildlife refuges, game ranges, wildlife management 
areas, conservation areas, waterfowl production areas, and other areas 
administered for the protection and conservation of fish, wildlife, and 
plant species.
    Other lands mean all other lands, or interests therein, and waters 
administered by the Secretary through the U.S. Fish and Wildlife 
Service that are not included in the National Wildlife Refuge System or 
the National Fish Hatchery System, e.g., administrative sites.
* * * * *
    Regional Director means the official in charge of a region of the 
U.S. Fish and Wildlife Service or an authorized representative of the 
Regional Director. When the regulations in this part require the 
Regional Director's signature or written approval, only the Regional 
Director or the person acting in the Regional Director's official 
capacity may sign.
    Right-of-way means a use on, under, or over Federal lands that is 
authorized pursuant to a right-of-way permit issued by the U.S. Fish 
and Wildlife Service, unless the use is included in a contract for 
services to a Service facility or if the use is requested by the 
Service to benefit the mission of the National Wildlife Refuge System 
or the National Fish Hatchery System.
0
3. Revise Sec.  29.21-1 to read as follows:


Sec.  29.21-1  Purpose and scope.

    The regulations in this subpart prescribe the procedures for filing 
applications and the terms and conditions under which rights-of-way 
over and across the lands administered by the U.S. Fish and Wildlife 
Service may be permitted.
    (a) National Wildlife Refuge System lands except lands in Alaska. 
Applications for all forms of rights-of-way on or over such lands must 
be submitted under authority of Public Law 89-669, as amended (80 Stat. 
926; 16 U.S.C. 668dd), or for oil and gas pipelines under section 28 of 
the Mineral Leasing Act of 1920, as amended (30 U.S.C. 181 et seq.), 
following the application procedures set out in Sec.  29.21-4. The 
Service will not permit a right-of-way unless it meets the 
compatibility-determination requirement described in Sec.  29.21-3. See 
Sec.  29.21-12 for additional requirements applicable to rights-of-way 
for electric power transmission lines and Sec.  29.21-13 for additional 
requirements applicable to rights-of-way for pipelines for the 
transportation of oil, natural gas, synthetic liquid or gaseous fuels, 
or any refined product produced from these substances.
    (b) National Wildlife Refuge System lands in Alaska. Applications 
for rights-of-way authorized under title XI of ANILCA must be submitted 
under authority of 16 U.S.C. 3101 et seq. and follow the procedures and 
requirements set forth in 43 CFR part 36 and other applicable Refuge 
laws and regulations where they do not conflict with ANILCA. 
Applications for all other rights-of-way on or over lands in Alaska 
must be submitted under authority of 16 U.S.C. 668dd, as amended, or 
for oil and gas pipelines under section 28 of the Mineral Leasing Act 
of 1920, as amended (30 U.S.C. 181 et seq.), following the application 
procedures set out in Sec.  29.21-4.
    (c) National Fish Hatchery System lands. Applications for rights-
of-way across National Fish Hatchery System lands follow the same 
procedures as applications for rights-of-way across National Wildlife 
Refuge System lands.
    (d) National Wildlife Refuge System lands--less than fee interest. 
The Service requires permits for rights-of-way that may affect a 
property interest acquired by the United States. If the requested 
right-of-way or regular maintenance of the requested right-of-way may 
affect the United States' interest, then an application for a right-of-
way permit must be submitted in accordance with procedures set forth in 
Sec.  29.21-4, except those applications for rights-of-way authorized 
under title XI of ANILCA will follow the procedures set forth in 43 CFR 
part 36. If the Regional Director determines that the requested right-
of-way and regular maintenance of the requested right-of-way will not 
adversely affect the United States' interest, then the Regional 
Director will sign a letter to the applicant stating that the proposed 
right-of-way will not affect the interest of the United States and the 
Service has no objection to the fee owner allowing the right-of-way.
    (e) Other lands outside the National Wildlife Refuge System and 
National Fish Hatchery System. Rights-of-way on or over other lands 
will be permitted in accordance with controlling authorities cited in 
43 CFR part 2800, or for oil and gas pipelines under section 28 of the 
Mineral Leasing Act of 1920, as amended (30 U.S.C. 181 et seq.). See 
Sec.  29.21-12 for additional requirements applicable to rights-of-way 
for electric power transmission lines and Sec.  29.21-13 for additional 
requirements applicable to rights-of-way for pipelines for the 
transportation of oil, natural gas, synthetic liquid or gaseous fuels, 
or any other refined product produced from those substances. 
Applications must be submitted in accordance with procedures set out in 
Sec.  29.21-4, except that the compatibility-determination requirement 
in Sec.  29.21-3 does not apply to lands outside the National Wildlife 
Refuge System and National Fish Hatchery System.
0
4. Revise Sec.  29.21-2 to read as follows:


Sec.  29.21-2  Preapplication meeting.

    Before submitting an application for a permit for a new right-of-
way or a modification of an existing right-of-way across lands managed 
by the Service, an applicant must contact the appropriate Regional 
Director to schedule a preapplication meeting with the Service. Contact 
information for the Service Regional Offices is available at https://www.regulations.gov in Docket No. FWS-HQ-NWRS-2019-0017. There is no 
fee for the preapplication meeting. During the meeting, the applicant 
may ask questions about the application process, provide information 
about the scope of the requested right-of-way and its location, and 
receive feedback. The Service will advise the applicant of the 
documentation required for the Service to review and process the 
application, provide an estimated timeline for the Service to review 
and process the application, and ask the applicant to provide 
information necessary for the Service to estimate application 
processing costs (See Sec.  29.21-6(a)(2)).
0
5. Redesignate Sec. Sec.  29.21-3 through 29.21-9 as Sec. Sec.  29.21-7 
through 29.21-13, respectively, and add new Sec. Sec.  29.21-3 through 
29.21-6, to read as follows:


Sec.  29.21-3  Compatibility-determination requirement.

    Consistent with the National Wildlife Refuge System Administration 
Act, as amended (16 U.S.C. 668dd-668ee), and the procedures set forth 
in Sec.  26.41 of this chapter, the Service will not permit

[[Page 47447]]

or renew a right-of-way across National Wildlife Refuge System land 
unless the Service determines that the use is compatible with the 
mission of the Refuge System and the purpose(s) of the refuge. This 
requirement does not apply to the access of privately owned minerals, 
or when access is required by any other prevailing provision of law. In 
the case of any right-of-way previously permitted for a period longer 
than 10 years (such as an electric utility right-of-way), the Service 
will not reevaluate whether the permitted use is a compatible use 
during the permit term so long as the right-of-way permit holder is in 
compliance with all the terms and conditions of the permit. The 
requirements and procedures of Sec.  26.41(c) of this chapter apply to 
any requested maintenance of or modifications to an existing right-of-
way. No compatibility determination is necessary to permit or renew a 
right-of-way across lands outside of the National Wildlife Refuge 
System and the National Fish Hatchery System.


Sec.  29.21-4  Application procedures.

    (a) Preapplication meeting. To request the preapplication meeting 
required by Sec.  29.21-2, contact the appropriate Service Regional 
Office, the geographic jurisdictions of which are listed at 50 CFR 2.2. 
Contact information for the Service Regional Offices is available at 
https://www.regulations.gov in Docket No. FWS-HQ-NWRS-2019-0017.
    (b) Application. Applicants must use Standard Form 299 (SF-299), 
Application for Transportation and Utility Systems and Facilities on 
Federal Lands, to request new rights-of-way, modifications of existing 
rights-of-way, and renewals of existing rights-of-way. In addition to a 
completed and signed SF-299, each application must include the 
attachments described in paragraphs (b)(1) and (2) of this section. 
There is no application fee, but applicants must reimburse the Service 
for its costs to evaluate and process the application, as set forth at 
Sec.  29.21-6(a). See paragraph (d) of this section for submission 
instructions.
    (1) Map. The map must show a general view of the proposed right-of-
way and a detailed view of the proposed project area in relationship to 
the Service boundary. If the proposed right-of-way is within a Public 
Land Survey System area, the map must show the section(s), township(s), 
and range(s) within which the proposed right-of-way would be located. 
See Sec.  29.21-5 for requirements regarding a survey plat and legal 
description of the area.
    (2) Environmental analysis. The environmental analysis supplements 
the basic environmental information on the SF-299 and must include 
information concerning the impact of the proposed right-of-way on the 
environment, including, but not limited to, the impact on air and water 
quality; scenic and aesthetic features; historic, architectural, 
archeological, and cultural features; and wildlife, fish, and marine 
life, including habitat connectivity and migratory routes.
    (i) The environmental analysis must include sufficient data to 
enable the Service to prepare a compatibility determination; prepare an 
environmental assessment or environmental impact statement in 
accordance with section 102(2)(C) of the National Environmental Policy 
Act of 1969 (42 U.S.C. 4321 et seq.); and comply with the requirements 
of the Migratory Bird Treaty Act of 1918 (16 U.S.C. 703-712), the 
Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.), the Wilderness 
Act of 1964 (16 U.S.C 1131 et seq.), the Wild and Scenic Rivers Act of 
1968 (16 U.S.C. 1271 et seq.), and the National Historic Preservation 
Act of 1966 (54 U.S.C. 300101 et seq.). To comply with the National 
Environmental Policy Act, an environmental assessment or environmental 
impact statement prepared by another Federal agency, the applicant, or 
the applicant's contractor may be sufficient; however, in all cases, 
this documentation must be prepared in consultation with the Regional 
Director.
    (ii) For renewals of existing rights-of-way that involve no changes 
to the permitted use, the environmental analysis need address only the 
impacts, including the cumulative effects, of the ongoing operation and 
maintenance of the right-of-way, as well as any statutory requirements 
not in place and therefore not considered at the time of original 
permit issuance.
    (c) Other required documents. Unless otherwise stated in this 
section, the Service requires the following additional documents before 
issuing a right-of-way permit. During the preapplication meeting or in 
a subsequent communication, the applicant will be informed when the 
Service requires this information and other information, which the 
applicant must provide after the initial application submission but 
before a right-of-way permit may be issued.
    (1) Survey plat and legal description. See Sec.  29.21-5 for 
requirements.
    (2) Preliminary site and facility construction plans. These plans 
are required for applications for rights-of-way or renewals of rights-
of-way where construction is required. They must show all proposed 
construction work and include a list of equipment to be used in 
construction and a proposed construction timeline.
    (3) Vegetation management plan. A vegetation management plan is 
required for applications for rights-of-way or renewals of rights-of-
way where there will be disturbance of vegetation resulting from the 
construction, operation, or maintenance of the right-of-way. The 
vegetation management plan must be prepared in consultation with the 
Regional Director and must describe:
    (i) Vegetation clearing that may occur as part of structural 
construction, maintenance, and removal.
    (ii) Routine vegetation management that may occur, including a 
description of all physical and mechanical methods that will be used, 
how equipment will be cleaned before and after entry to the right-of-
way, and how the spread of nonnative species by equipment and 
activities will be minimized.
    (iii) Any pesticides, herbicides, or other chemicals proposed for 
use, as well as the actions the applicant will take to minimize the 
adverse impacts of pesticides, herbicides, and other chemicals on 
native species including pollinators present in or adjacent to the 
right-of-way.
    (iv) Any revegetation and restoration activities, including how the 
applicant will incorporate regionally appropriate native seeds and 
plants, particularly those that provide breeding, feeding, and 
sheltering habitat for native species present in the area, including 
but not limited to native pollinators.
    (d) Submission instructions. Applicants may submit applications for 
rights-of-way through electronic filing or certified mail.
    (1) Electronic filing. Applications submitted through electronic 
filing (E-file) must include a digital copy of the SF-299, the map, and 
the environmental analysis, as well as any other attachments that the 
Regional Director requires for application processing. The Service may 
provide additional instructions at the preapplication meeting.
    (2) Certified mail. Application submissions through certified mail 
must include one printed copy of the SF-299, the map, and the 
environmental analysis, as well as any other attachments that the 
Regional Director requires for application processing. Applicants must 
send all documents by certified mail to the Regional Director for the 
region where the proposed right-of-way is located. Addresses for the 
Service Regional Offices are provided at 50 CFR 2.2. Mailing envelopes 
should

[[Page 47448]]

be clearly marked ``Attn: NWRS Realty Right-of-Way Permit Processing.''


Sec.  29.21-5  Survey plat and legal description.

    (a) Before the Service will issue a right-of-way permit, the 
applicant must provide a final survey plat and legal description that 
shows and describes the proposed right-of-way in such detail that the 
Service can accurately locate the proposed right-of-way on the ground.
    (b) Survey plats and legal descriptions of the right-of-way area 
must be stamped and signed by a licensed professional land surveyor or 
other professional licensed or authorized by the State to carry out 
land-surveying activities.
    (1) Survey plats must meet the following standards:
    (i) Survey plats must be geodetically referenced to the current 
State or national datum. In some cases, new geodetic control points 
will need to be set within or near the right-of-way area.
    (ii) Survey plats must show ties to the monuments marking the 
boundaries of the Service-owned land that the right-of-way would 
affect, or from which those boundaries are calculated. In cases such as 
road construction that involve allowing full control of the right-of-
way area, a boundary survey is required.
    (iii) The points where the right-of-way enters and leaves Service 
land must be annotated on the survey with distance ties to the nearest 
boundary monuments.
    (iv) For a linear strip right-of-way, the courses and distances of 
the center line and the width of the right-of-way on each side of the 
center line must be annotated.
    (v) If the right-of-way or site is located wholly within Service 
land, a minimum of two ties to boundary corners or geodetic control 
points that can be readily recovered must be shown.
    (vi) Survey plats must show the existing or proposed facilities in 
sufficient detail that an average person can determine the nature and 
extent of the proposed use.
    (vii) Survey plats must include all uses of Service-managed land 
required as part of the right-of-way, including access roads.
    (viii) Survey plats must show the location of any other right-of-
way areas in the vicinity.
    (ix) Survey plats must show major natural or cultural features such 
as roads, rivers, fences, etc., required for orientation and 
intelligent interpretation.
    (x) The acreage contained within the right-of-way area must be 
shown.
    (xi) Letter-sized plats are preferred, but larger format plats, 
such as the right-of-way plan sets prepared for highway and utility 
projects, are acceptable if they meet the other requirements.
    (xii) A digital version of the plat in AutoCAD, ArcGIS, or similar 
format must be submitted along with a signed paper or document prepared 
in Adobe Acrobat or similar process.
    (2) The legal description must:
    (i) Be in metes-and-bounds, aliquot parts, or linear strip format;
    (ii) Conform to and reference the survey plat;
    (iii) Be tied to the controlling monuments shown on the plat;
    (iv) Reference the geodetic coordinates of the point of beginning 
or point of commencement, and have a clearly documented basis of 
bearing; and
    (v) For linear corridor projects, use a ``strip description'' 
format, based on a geometrically defined centerline. For example: ``All 
that portion of [land unit description] lying within the following 
described strip of land.''


Sec.  29.21-6  Reimbursement of costs.

    (a) Application evaluation and processing activities. (1) Unless 
reimbursement is waived as provided under paragraph (c) of this 
section, the applicant for a right-of-way permit must reimburse the 
United States for the costs the Service incurs in evaluating and 
processing the application, even if the result of this evaluation is a 
denial of the application. These costs may include, but are not limited 
to, the Service's costs to review the application and related 
materials, conduct resource surveys of the proposed permit area, 
prepare a compatibility determination, prepare documentation to comply 
with the National Environmental Policy Act (42 U.S.C. 4321 et seq.) and 
other applicable laws, obtain an appraisal, draft correspondence, and 
draft the permit.
    (2) If requested by the applicant during or after the required 
preapplication meeting, the Regional Director will provide the 
applicant a preliminary estimate of the Service's application 
evaluation and processing costs using the information provided by the 
applicant during or after the preapplication meeting.
    (3) After receiving a complete application, the Regional Director 
will estimate the Service's application evaluation and processing costs 
using the information the applicant provided in the application and 
during or after the preapplication meeting.
    (4) Unless reimbursement is waived as provided under paragraph (c) 
of this section, the applicant must submit a payment to reimburse the 
Service for its estimated costs before the Service will evaluate and 
process the right-of-way permit application.
    (5) If the Service's cost to evaluate and process the right-of-way 
application exceeds the estimated amount, the Regional Director will 
promptly notify the applicant of the deficient amount, and the 
applicant must submit payment for the deficient amount before the 
Service will issue a right-of-way permit. The Regional Director will 
refund any overpayments at the request of the applicant.
    (b) Monitoring activities. (1) By accepting a permit under this 
subpart, the permit holder agrees to reimburse the Service for the 
costs incurred for all monitoring activities, which include monitoring 
the construction, operation, maintenance, and termination of 
facilities, to ensure compliance with the terms, conditions, and 
stipulations of the right-of-way permit.
    (2) The Regional Director will estimate the total costs the Service 
expects to incur for monitoring activities over the permit term using 
the information the applicant provided in the application and during or 
after the preapplication meeting.
    (3) At the discretion of the Regional Director, the Service may 
require reimbursement for its estimated monitoring costs in a lump-sum 
payment before the Service issues a right-of-way permit, or at periodic 
intervals, not to exceed 5 years, specified in the permit.
    (4) When reimbursement for costs for monitoring activities is 
required at periodic intervals specified in the permit, the Regional 
Director will review the amount of reimbursement not more than every 5 
years after the issuance of the permit. The Regional Director will 
provide the permit holder with written notice of intent to impose new 
charges to reflect current monitoring costs commencing with the ensuing 
charge year. The revised charges will be effective unless the permit 
holder files an appeal in accordance with Sec.  29.22.
    (c) Waiver of reimbursement for Service costs. (1) No reimbursement 
for Service costs for right-of-way application evaluation and 
processing activities and monitoring activities will be required of:
    (i) State or local governments or agencies or related 
instrumentalities;
    (ii) Federal Government agencies; or
    (iii) Private individuals or organizations when the proposed right-
of-way contributes to the Service's operation or maintenance of the 
refuge

[[Page 47449]]

or fish hatchery as certified in writing by the Regional Director.
    (2) Additionally, the Regional Director has the discretion to waive 
reimbursement for Service costs for right-of-way application evaluation 
and processing activities and monitoring activities so long as there 
are appropriated funds for these activities.
    (3) When reimbursement for Service costs for monitoring activities 
is waived during the permit term, the permit will contain a statement 
to that effect.
    (4) Reimbursement of costs is required and cannot be waived for any 
right-of-way permit issued under section 28 of the Mineral Leasing Act 
of 1920, as amended (30 U.S.C. 181 et seq.).
    (d) Service use of payments received for reimbursement of costs. 
Payments received by the Service to reimburse the United States for the 
costs incurred in evaluating and processing applications, and for 
monitoring, will be deposited into the United States Treasury until 
such time that any provision of law allows these payments to supplement 
the Service's appropriation.
0
6. Revise newly redesignated Sec.  29.21-7 to read as follows:


Sec.  29.21-7  Nature of interest granted.

    (a) Where the land administered by the Service is owned in fee by 
the United States and the right-of-way is compatible with the 
objectives of the area, the Service may issue a permit after it is 
approved in writing by the Regional Director.
    (b) For rights-of-way permitted under authority of section 28 of 
the Mineral Leasing Act of 1920, as amended (30 U.S.C. 181 et seq.), 
for pipelines for the transportation of oil, natural gas, synthetic 
liquid or gaseous fuels, or any refined product produced from these 
substances:
    (1) The permit term may not exceed 30 years.
    (2) The right-of-way may not exceed 50 feet in width, plus the area 
occupied by the pipeline and its related facilities, unless the 
Regional Director finds, and records the reasons for the finding based 
on the analysis in a compatibility determination, that a wider right-
of-way is necessary for operation and maintenance after construction 
and to protect the environment or public safety. ``Related facilities'' 
include but are not limited to valves, pump stations, supporting 
structures, bridges, monitoring and communication devices, surge and 
storage tanks, and terminals.
    (c) For rights-of-way other than those referred to in paragraph (b) 
of this section, the permit term may be up to 50 years when the 
Regional Director deems it appropriate, or a lesser term.
    (d) The Service may issue a temporary permit supplementing a right-
of-way for additional land needed during construction, operation, 
maintenance, or termination of the pipeline, or to protect the natural 
environment or public safety.
    (e) Unless otherwise provided, no interest granted shall give the 
grantee any right whatever to remove any material, earth, or stone for 
construction or other purpose, except that stone or earth necessarily 
removed from the right-of-way in the construction of a project may be 
used elsewhere along the same right-of-way in the construction of the 
same project.
0
7. Revise newly redesignated Sec.  29.21-8 to read as follows:


Sec.  29.21-8  Terms and conditions.

    (a) Prior rights. Any right-of-way permit issued will be subject to 
rights reserved, if any, by a prior owner, and rights held, if any, by 
a third party.
    (b) Agreement of terms and conditions. An applicant, by accepting a 
permit, agrees to such terms and conditions as may be prescribed by the 
Regional Director, including special stipulations required to ensure 
the permitted use is compatible with the mission of the Refuge System 
and the purpose(s) of the refuge. (See Sec.  29.21-12 for specific 
requirements for electric powerlines and Sec.  29.21-13 for specific 
requirements for oil and gas pipelines.)
    (c) Terms and conditions required for all permit holders. In 
addition to any terms and conditions prescribed by the Regional 
Director, the permit holder must agree to all of the following terms 
and conditions:
    (1) The permit is for the specific use described and may not be 
construed to authorize any other use within the permit area unless 
approved in writing by the Regional Director upon determination by the 
Service project manager that the additional use is a compatible use.
    (2) The permit may be amended only by a written instrument signed 
and executed by the Regional Director and the permit holder.
    (3) The permit holder may not transfer or assign this permit to 
another party without obtaining the Regional Director's prior written 
approval.
    (4) The permit holder may not allow another party to collocate 
equipment or activities on their infrastructure or right-of-way. Any 
entity that wants to collocate equipment or activities must apply for 
its own Service right-of-way permit in accordance with the regulations 
in 50 CFR 29.21.
    (5) The permit holder is responsible for ensuring that its 
officers, employees, representatives, agents, contractors, and 
subcontractors are familiar with the permit and comply with its terms 
and conditions.
    (6) The permit holder must provide the Service project manager with 
current contact information (company address, points of contact, 
telephone numbers, email addresses, etc.) for both routine and 
emergency communications, and, in the case of corporations, of the 
address of its principal place of business and the names and addresses 
of its principal officers.
    (7) Authorized representatives of the United States have the right 
to enter and inspect the permitted area at any time without providing 
prior notice to the permit holder.
    (8) The Regional Director may suspend or terminate all or any part 
of the issued permit for failure of the permit holder to comply with 
any or all of the terms or conditions of the permit, or for 
abandonment.
    (i) A rebuttable presumption of abandonment is raised by deliberate 
failure of the permit holder to use the permit, for any continuous 2-
year period, for the purpose for which the permit was issued or 
renewed. In the event of noncompliance or abandonment, the Regional 
Director will notify the permit holder in writing of any intention to 
suspend or terminate the permit 60 days from the date of the notice and 
state the reasons, unless prior to that time the holder completes such 
corrective actions as are specified in the notice. The Regional 
Director may allow an extension of time within which to complete 
corrective actions if the Regional Director believes that extenuating 
circumstances, not within the permit holder's control, such as adverse 
weather conditions, disturbance to wildlife during breeding periods or 
periods of peak concentration, or other compelling reasons, warrant an 
extension.
    (ii) Should the holder of a right-of-way permit issued under 
authority of the Mineral Leasing Act of 1920, as amended (30 U.S.C. 181 
et seq.), fail to take corrective action within the 60-day period, the 
Regional Director will provide for an administrative proceeding, 
pursuant to 5 U.S.C. 554, prior to a final departmental decision to 
suspend or terminate the permit. In the case of all other right-of-way 
permit holders, failure to take corrective action within the 60-day 
period will result in a determination by the Regional Director to 
suspend or terminate the permit.
    (iii) No administrative proceeding is required in cases in which 
the permit terminates under its terms.

[[Page 47450]]

    (9) The permit holder must prevent the disturbance or removal of 
any public land survey monument or project boundary monument unless and 
until the permit holder has requested and received from the Regional 
Director written approval of measures that the permit holder will take 
to perpetuate the location of the monument.
    (10) The permit holder must conduct operations, including by 
setting their time and location, in a manner that avoids or minimizes 
impacts to fish and wildlife or their habitats, including, but not 
limited to, impacts caused by exposure to physical and chemical 
hazards, disruption of hydrologic processes, lighting and visual 
disturbance, and duration and frequency of noise.
    (11) The permit holder must comply with State and Federal laws and 
regulations that are applicable to the project within which the permit 
is issued and to the lands that are included in the right-of-way.
    (i) The permit holder must comply with the Archaeological Resources 
Protection Act (16 U.S.C. 470aa et seq.). The disturbance of 
archaeological or historical sites and the removal of artifacts from 
Federal land are prohibited.
    (ii) The permit holder must comply with the applicable requirements 
of the Migratory Bird Treaty Act of 1918 (16 U.S.C. 703-712), the 
Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.), the Wilderness 
Act of 1964 (16 U.S.C. 1131 et seq.), the Wild and Scenic Rivers Act of 
1968 (16 U.S.C. 1271 et seq.), and the National Historic Preservation 
Act of 1966 (54 U.S.C. 300101 et seq.).
    (iii) The permit holder must immediately suspend all activities and 
notify the Service project manager upon the discovery of any threatened 
or endangered species or archeological, paleontological, or historical 
resources within or near the permitted area. All natural and cultural 
resources discovered in the permitted area are the property of the 
United States.
    (12) The permit holder must clear and keep clear the lands within 
the permit area to the extent and in the manner directed by the Service 
project manager in charge; and to dispose of all vegetative and other 
material cut, uprooted, or otherwise accumulated during the 
construction and maintenance of the project so as to decrease the fire 
hazard and also in accordance with any instructions that the Service 
project manager specifies.
    (13) The permit holder must do everything reasonably within the 
permit holder's power, both independently and on request of any duly 
authorized representative of the United States, to prevent and suppress 
fires on or near the permitted area, including making available such 
construction and maintenance resources that are reasonably obtainable 
for the suppression of such fires.
    (14) After the expiration or termination of this permit, the permit 
holder must remove all facilities and equipment from the permitted area 
and restore the permitted area to its pre-permit condition as directed 
and approved by the Service project manager. Any facilities or 
equipment not removed within 6 months, unless more time is deemed 
necessary for conservation purposes by the Regional Director, will be 
deemed abandoned and will be disposed of in accordance with applicable 
Federal law. In that event, the permit holder will be liable to the 
Service for all of its costs in disposing of the facilities or 
equipment and restoring the permitted area.
    (15) In accordance with applicable Federal law, in the 
construction, operation, and maintenance of the project, the permit 
holder will not discriminate against any employee or applicant for 
employment because of race, color, religion, sex, or national origin 
and must require an identical provision to be included in all 
subcontracts.
    (16) The permit holder must pay the United States the full value 
for all damages to the lands or other property of the United States 
caused by the permit holder or that person's employees, contractors, or 
agents of the contractors.
    (i) In cases in which the permit is issued to a State or other 
governmental agency that has no legal power to assume such a liability 
with respect to damages caused to lands or property, that agency will 
repair all such damages.
    (ii) In cases in which the permit involves lands that are under the 
exclusive jurisdiction of the United States, the permit holder or his 
or her employees, contractors, or agents of the contractors will be 
liable to third parties for injuries incurred in connection with the 
permit area.
    (17) The permit holder will indemnify and hold harmless the United 
States and its officers, employees, agents, and representatives from 
and against all liability of any sort whatsoever arising out of the 
permit holder's activities under this permit. This agreement to 
indemnify and hold harmless from and against all liability includes 
liability under Federal or State environmental laws, including but not 
limited to the Comprehensive Environmental Response, Compensation, and 
Restoration Act, as amended (42 U.S.C. chapter 103); the Resource 
Conservation and Recovery Act, as amended (42 U.S.C. 6901 et seq.); and 
what is commonly known as the Clean Water Act, as amended (33 U.S.C. 
1251-1387). This agreement to indemnify and hold harmless will survive 
the permit's termination or expiration.
    (18) The Regional Director may require permit modifications at any 
future date to ensure that the permitted use is compatible with the 
Refuge System mission and the purpose(s) of the refuge. Required permit 
modifications could include but are not limited to changes to permit 
conditions and/or additional stipulations that a Regional Director 
deems necessary based on new information.
    (d) Terms and conditions required of most permit holders. The 
permit holder must also agree to the following terms and conditions, 
which are required unless the Regional Director determines they are not 
relevant to the requested use:
    (1) The permit holder must notify the Service project manager in 
writing at least 5 business days before conducting any maintenance or 
nonemergency repair work within the permitted area. The written notice 
must describe the location of the proposed work, the equipment to be 
used, and the size of work crews anticipated to be working on Service 
land. The Service project manager may require an onsite meeting before 
any maintenance or nonemergency repair work commences and may assign a 
site monitor to be present during such work. Except in emergencies, all 
work in the permitted area must be conducted during normal business 
hours. To respond to an emergency, the permit holder may enter the 
permitted area at other times to conduct repair work after calling the 
Service project manager.
    (2) The permit holder must erect and maintain appropriate warning 
signs, barricades, or other warning devices during all periods when the 
permit holder is using the permitted area, including periods of 
maintenance or repair.
    (3) The permit holder must rebuild and repair such roads, fences, 
structures, and trails as may be destroyed or injured by construction 
work.
    (4) Notwithstanding the issuance of this permit, the Service may 
establish trails, roads, or other improvements across, over, on, or 
through the permitted area for use by the Service, by visitors, or by 
others.

[[Page 47451]]

    (5) Upon request by the Regional Director, the permit holder must 
build and maintain necessary and suitable crossings for all roads and 
trails that intersect the works constructed, maintained, or operated 
under the right-of-way.
    (6) The permit holder must take any soil and resource conservation 
and protection measures, including weed control, on the land covered by 
the permit that the Service project manager in charge requests.
    (7) The permit holder must provide for habitat connectivity on the 
land covered by the permit to the maximum extent possible, for example 
through use of wildlife-friendly fencing, perches or perch deterrents 
for birds, fish-passable culverts, vegetative screening or hiding 
cover, that the Service project manager in charge requests.
    (8) The permit holder must promptly notify the Service project 
manager in charge of the amount of merchantable timber, if any, that 
will be cut, removed, or destroyed in the construction and maintenance 
of the project, and to pay the United States in advance of construction 
such sum of money that the project manager determines to be the full 
stumpage value of the timber to be cut, removed, or destroyed.
    (9) Issuance of the permit is subject to the express condition that 
the exercise of the permit will not unduly interfere with the 
management, administration, or disposal by the United States of the 
land to be affected. The permit holder agrees and consents to the 
occupancy and use by the United States, or its grantees, permittees, or 
lessees, of any part of the permit area not actually occupied for the 
purpose of the permitted rights to the extent that the use does not 
unreasonably interfere with the permittee's use of the permitted area.
    (10) Any facility constructed on the permit area will be modified 
or adapted, if modification is found by the Regional Director to be 
necessary, without liability or expense to the United States, so that 
the facility will not conflict with the use and occupancy of the land 
for any authorized works that may be constructed on the land under the 
authority of the United States. The modification will be planned and 
scheduled so as not to interfere unduly with or to have minimal effect 
upon continuity of energy and delivery requirements for Service 
facilities.
    (e) General liability insurance. The Service may require the permit 
holder to procure and maintain in force and effect during the term of 
this permit commercial general liability insurance to protect against 
claims arising out of the acts or omissions of the permit holder or its 
officers, employees, agents, or representatives while conducting the 
activities authorized by this permit. The insurance policy must provide 
coverage for discharges or escapes of pollutants or contaminants into 
the environment, including sudden or accidental discharges or escapes. 
The Regional Director will determine the minimum amount of coverage per 
occurrence and in the aggregate. The policy must be issued by a company 
duly licensed to do business in the State where the project is located 
and must name the United States of America as an additional insured. 
Before the Regional Director executes this permit, the permittee must 
provide the Service with a copy of its certificate of insurance showing 
the required coverage.
    (f) Bonds. The Service may require a bond for a permit when the 
Regional Director determines that the Service is likely to incur 
reclamation costs during or after the term of the right-of-way due to 
the construction, operation, or maintenance of the right-of-way. The 
Service also may require a bond for a permit when the Service is likely 
to incur reclamation costs if the right-of-way is abandoned or 
terminated.
    (1) No bond will be required of a Federal, State, or local 
government or its agent or instrumentality, except those that are:
    (i) Using the facility, system, space, or any part of the right-of-
way area for commercial purposes; or
    (ii) A municipal utility or cooperative whose principal source of 
revenue is customer charges.
    (2) When the Service requires a bond, the permit holder must agree 
to the following terms and conditions: Before the permit's effective 
date, the permit holder must file with the Service a performance bond 
payable to the Service, issued by a surety satisfactory to the Service, 
to guarantee its compliance with all terms and conditions of the permit 
and with all applicable laws and regulations. The Regional Director 
will determine the amount of the bond and with whom it must be filed.
    (g) Communications facilities. If this permit is for a 
communications facility as defined by the Mobile Now Act (47 U.S.C. 
1455(d)(1)), then the permit holder must also agree to the following 
terms and conditions:
    (1) The permit holder agrees that use of wireless communications 
equipment is contingent upon the possession of a valid Federal 
Communications Commission (FCC) or National Telecommunications and 
Information Administration (NTIA) authorization/license (if required), 
and the operation of the equipment is in strict compliance with 
applicable requirements of FCC or NTIA. A copy of each applicable 
license or authorization must be maintained at all times by the permit 
holder for each transmitter being operated. The permit holder must 
provide the Service project manager, when requested, with current 
copies of all licenses for equipment in or on facilities covered by 
this permit.
    (2) The permit holder must, at the permit holder's sole cost and 
expense, take all necessary actions to comply with all applicable FCC 
radio frequency (RF) exposure regulations and requirements, and take 
reasonable precautions so that neither workers nor the public are 
subject to RF exposures above the FCC specific levels.
    (3) The permit holder agrees that the provisions of 18 U.S.C. 431 
(contracts by Member of Congress) and 41 U.S.C. 6306 (prohibition on 
Members of Congress making contracts with the Federal Government) apply 
to the permit, as if set forth in full.


Sec.  29.21-9  [Amended]

0
8. Amend newly redesignated Sec.  29.21-9, in paragraph (a), by 
removing the words ``at his discretion''.
0
9. Amend newly redesignated Sec.  29.21-10 by revising the section 
heading and paragraphs (b) and (c) to read as follows:


Sec.  29.21-10  Disposal, transfer, or termination of interest.

* * * * *
    (b) Transfer of permit. Any proposed transfer, by assignment, 
lease, operating agreement or otherwise, of a permit must be filed with 
the Regional Director and must be supported by a stipulation that the 
transferee agrees to comply with and be bound by the terms and 
conditions of the original permit. A $100 nonrefundable service fee 
must accompany the proposal. No transfer will occur unless and until 
approved in writing by the Regional Director.
    (c) Disposal of property on termination of right-of-way. In the 
absence of any agreement to the contrary:
    (1) The holder of the right-of-way must, within 6 months after 
termination of the right-of-way, remove all property or improvements 
placed there by the holder, other than a road and usable improvements 
to a road.
    (2) After 6 months, all property and improvements in the right-of-
way area become the property of the United States.
    (3) The Regional Director may use discretion to extend this 
timeframe.
0
10. Revise newly redesignated Sec.  29.21-11 to read as follows:

[[Page 47452]]

Sec.  29.21-11  Required payment for use and occupancy of National 
Wildlife Refuge System land.

    (a) Payment for use and occupancy of lands under the regulations of 
this subpart is required for the fair market value or fair market 
rental value as determined by the Regional Director using any method 
approved by the Department of the Interior to determine those values.
    (1) At the discretion of the Regional Director, the payment may be 
a fair market rental payment, paid annually, or a lump-sum payment, 
made before permit issuance.
    (2) If any Federal, State, or local agency is exempt from payment 
under any other provision of Federal law, the agency must inform the 
Service of the applicable Federal law during the preapplication meeting 
required by Sec.  29.21-2. The agency must also otherwise compensate 
the Service by any other means acceptable to the Regional Director, 
including, but not limited to, making other land available or loaning 
of equipment or personnel, except that any such compensation must 
relate to, and be consistent with, the mission of the National Wildlife 
Refuge System. For agencies exempted from payment by law, the Regional 
Director may waive the requirement for other compensation upon finding 
this requirement to be impracticable or unnecessary.
    (b) The terms of the permit will specify the amount of the lump sum 
paid by the applicant for use and occupancy during the current permit 
term, or, if applicable, the initial annual rental payment amount for 
use and occupancy of the permitted area.
    (c) When annual rental payments are used, the Regional Director 
will periodically review and adjust the charges to reflect fair market 
value. The Regional Director will provide the permit holder with 
written notice of intent to impose new charges to reflect fair market 
value commencing with the ensuing charge year. The revised charges will 
be effective unless the permit holder files an appeal in accordance 
with Sec.  29.22.
    (d) Payments received by the Service for use and occupancy of 
rights-of-way on Refuge lands and interests in land will be deposited 
into the Migratory Bird Conservation Fund to carry out the land-
acquisition provisions of the Migratory Bird Conservation Act (16 
U.S.C. 715 et seq.) and the Migratory Bird Hunting Stamp Act (16 U.S.C. 
718 et seq.). Payments received for use and occupancy of rights-of-way 
on other Service-managed lands and interests in land will be deposited 
into the National Wildlife Refuge Fund, to make payments annually to 
counties and other units of local government in accordance with 
regulations in 50 CFR part 34.


Sec.  29.21-12  [Amended]

0
11. Amend newly redesignated Sec.  29.21-12:
0
a. In the introductory text, by removing the citation ``Sec.  29.21-
4(b)'' and adding in its place the citation ``Sec.  29.21-8'';
0
b. In paragraph (a), by removing the word ``his'' both times that it 
appears and adding in its place the word ``the''; and
0
c. In paragraph (b), by removing the word ``him'' both times that it 
appears and adding in its place the words ``the applicant''.
0
12. Revise newly redesignated Sec.  29.21-13 to read as follows:


Sec.  29.21-13  Rights-of-way for pipelines for the transportation of 
oil, natural gas, synthetic liquid or gaseous fuels, or any refined 
product produced from these substances.

    (a) Application procedure. (1) Applications for pipelines and 
related facilities under this section are to be filed in accordance 
with Sec.  29.21-4 with the following exception: When the right-of-way 
or proposed facility will occupy Federal land under the control of more 
than one Federal agency or more than one bureau or office of the 
Department of the Interior, a single application must be filed with the 
appropriate State Director of the Bureau of Land Management in 
accordance with regulations in 43 CFR part 2800.
    (2) Any portion of the facility occupying land of the National 
Wildlife Refuge System is subject to the provisions of the regulations 
in this part.
    (b) Right-of-way permits. Right-of-way permits issued under this 
section are subject to the special requirements of section 28 of the 
Mineral Leasing Act of 1920, as amended (30 U.S.C. 181 et seq.). 
Gathering lines and associated structures used solely in the production 
of oil and gas under valid leases on the lands administered by the 
Service are excepted from the provisions of this section.
    (1) Pipeline safety. Rights-of-way permits issued under this 
section will include requirements that will protect the safety of 
workers and protect the public from sudden ruptures and slow 
degradation of the pipeline. An applicant must agree to design, 
construct, and operate all proposed facilities in accordance with the 
provisions of 49 CFR part 192 or part 195 and in accordance with the 
Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq.) and 
any future amendments to that act.
    (2) Environmental protection. An application for a right-of-way 
must contain environmental information required by Sec.  29.21-4(b)(2). 
The applicant must also provide a plan of construction, operation, and 
rehabilitation of the proposed facilities. In addition to terms and 
conditions imposed under Sec.  29.21-8, the Regional Director will 
impose any stipulations required to ensure:
    (i) Restoration, revegetation, and curtailment of erosion of the 
surface;
    (ii) That activities in connection with the right-of-way or permit 
will not violate applicable air- and water-quality standards in related 
facilities siting standards established by law;
    (iii) Control or prevention of damage to the environment, including 
damage to fish and wildlife habitat, public or private property, and 
public health and safety; and
    (iv) Protection of the interests of individuals living in the 
general area of the right-of-way who rely on the fish, wildlife, and 
biotic resources of the area for subsistence purposes.
    (c) Disclosure. Applicants that are a partnership, corporation, 
association, or other business entity must disclose the identity of all 
participants. Such disclosure will include where applicable:
    (1) The name and address of each partner;
    (2) The name and address of each shareholder owning 3 percent or 
more of the shares, together with the number and percentage of any 
class of voting shares that the shareholder is authorized for voting 
purposes; and
    (3) The name and address of each affiliate of the entity, together 
with, in the case of an affiliate controlled by the entity, the number 
of shares and the percentage of any class of voting stock of that 
affiliate owned, directly or indirectly, by that entity, and in the 
case of an affiliate that controls the entity, the number of shares and 
the percentage of any class of voting stock of the entity owned, 
directly or indirectly, by the affiliate.
    (d) Technical and financial capability. The Regional Director may 
require a financial statement and will issue or renew a right-of-way 
permit under this section only when satisfied that the applicant has 
the technical and financial capability to construct, operate, maintain, 
and terminate the facility.
    (e) Reimbursement of costs. (1) In accordance with Sec.  29.21-6, 
the holder of

[[Page 47453]]

a right-of-way permit must reimburse the Service for the cost incurred 
in monitoring the construction, operation, maintenance, and termination 
of any pipeline or related facilities as determined by the Regional 
Director.
    (2) Payments received by the Service to reimburse the United States 
for the costs incurred in monitoring the construction, operation, 
maintenance, and termination of any pipeline or related facilities will 
be deposited into the United States Treasury until such time that any 
provision of law allows these payments to supplement the Service's 
appropriation.
    (f) Public hearing. The Regional Director will give notice to 
Federal, State, and local government agencies and the public of the 
opportunity to comment on right-of-way applications under this section. 
A notice will be published in the Federal Register, and a public 
hearing may be held where appropriate.
    (g) Bonding. Where appropriate, the Regional Director will require 
the holder of a right-of-way permit to furnish a bond or other 
satisfactory financial assurance to secure all or any of the 
obligations imposed by the terms and conditions of the right-of-way 
permit or by any rule or regulation, not to exceed the period of 
construction plus 1 year or a longer period if necessary for the 
pipeline to stabilize or for any reclamation or restoration 
requirements to be met.
    (h) Suspension of right-of-way. If the project manager determines 
that an immediate temporary suspension of activities within a right-of-
way permit area is necessary to protect public health and safety or the 
environment, the project manager may issue an emergency suspension 
order to abate such activities prior to an administrative proceeding. 
The Regional Director must make a determination and notify the permit 
holder in writing within 15 days from the date of suspension as to 
whether the suspension should continue and list actions needed to 
terminate the suspension. The suspension will remain in effect for only 
so long as an emergency condition continues.
    (i) Joint use of rights-of-way. Each right-of-way permit will 
reserve to the Regional Director the right to issue additional rights-
of-way permits for compatible uses on or adjacent to permitted rights-
of-way areas after giving notice to the permit holder and an 
opportunity to comment.
    (j) Common carriers. Pipelines and related facilities used for the 
transportation of oil, natural gas, synthetic liquid or gaseous fuels, 
or any refined product made from these substances will be constructed, 
operated, and maintained as common carriers.
    (1) The owners or operators of pipelines subject to this subpart 
will accept, convey, transport, or purchase without discrimination all 
oil or gas delivered to the pipeline without regard to whether such oil 
or gas was produced on Federal or non-Federal lands.
    (2) In the case of oil or gas produced from Federal lands or from 
the resources on the Federal lands in the vicinity of the pipelines, 
the Secretary may, after a full hearing following due notice to the 
interested parties and a proper finding of facts, determine the 
proportionate amounts to be accepted, conveyed, transported, or 
purchased.
    (3) The common carrier provisions of this section will not apply to 
any natural gas pipeline operated by any person subject to regulation 
under the Natural Gas Act (15 U.S.C. ch. 15B sec. 717 et seq.) or by 
any public utility subject to regulation by a State or municipal 
regulatory agency having jurisdiction to regulate the rates and charges 
for the sale of natural gas to consumers within the State or 
municipality.
    (4) The owners or operators of pipelines will purchase, without 
discrimination, any natural gas produced in the vicinity of the 
pipeline that is offered for sale unless that natural gas is subject to 
State regulatory or conservation laws governing its purchase by owners 
or operators of pipelines.
    (k) Required information. The Regional Director will require, prior 
to issuing or renewing a right-of-way permit, that the applicant submit 
and disclose all plans, contracts, agreements, or other information or 
material that the Regional Director deems necessary to determine 
whether to issue or renew the right-of-way permit or the terms and 
conditions that should be included in the permit. That information may 
include, but is not limited to:
    (1) Conditions for and agreements among owners or operators 
regarding the addition of pumping facilities, looping, or otherwise 
increasing the pipeline or terminal's throughput capacity in response 
to actual or anticipated increases in demand;
    (2) Conditions for adding or abandoning intake, offtake, or storage 
points or facilities; and
    (3) Minimum shipment or purchase tenders.
    (l) State standards. The Regional Director will take into 
consideration, and to the extent practical comply with, applicable 
State standards for right-of-way construction, operation, and 
maintenance, taking into account any additional standards necessary to 
protect refuge resources.
    (m) Congressional notification. The Secretary will promptly notify 
the Committee on Natural Resources of the United States House of 
Representatives and the Committee on Energy and Natural Resources of 
the United States Senate upon receipt of an application for a right-of-
way for pipeline 24 inches or more in diameter, and no right-of-way 
permit for such a pipeline will be issued until a notice of intention 
to permit the right-of-way, together with the Secretary's detailed 
findings as to the terms and conditions the Secretary proposes to 
impose, has been submitted to those committees.

Shannon Estenoz,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2023-15453 Filed 7-21-23; 8:45 am]
BILLING CODE 4333-15-P