Land Uses; Special Uses; Procedures for Operating Plans and Agreements for Vegetation Management Within and Along Powerline Rights-of-Way
| Published date | 25 September 2019 |
| Record Number | 2019-20741 |
| Section | Proposed rules |
| Court | Forest Service |
Federal Register, Volume 84 Issue 186 (Wednesday, September 25, 2019)
[Federal Register Volume 84, Number 186 (Wednesday, September 25, 2019)]
[Proposed Rules]
[Pages 50698-50702]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-20741]
[[Page 50697]]
Vol. 84
Wednesday,
No. 186
September 25, 2019
Part IVDepartment of Agriculture-----------------------------------------------------------------------Forest Service-----------------------------------------------------------------------36 CFR Part 251Land Uses; Special Uses; Procedures for Operating Plans and Agreements
for Vegetation Management Within and Along Powerline Rights-of-Way;
Proposed Rule
Federal Register / Vol. 84 , No. 186 / Wednesday, September 25, 2019
/ Proposed Rules
[[Page 50698]]
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DEPARTMENT OF AGRICULTURE
Forest Service
36 CFR Part 251
RIN 0596-AD36
Land Uses; Special Uses; Procedures for Operating Plans and
Agreements for Vegetation Management Within and Along Powerline Rights-
of-Way
AGENCY: Forest Service, USDA.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The U.S. Department of Agriculture, Forest Service (Agency) is
proposing to amend its existing regulations, for the Agency's special
uses to implement Section 512 of the Federal Land Policy and Management
Act, as added by section 211 of division O, Consolidated Appropriations
Act, 2018 (hereinafter ``Section 512''). This section governs the
development and approval of operating plans and agreements for
vegetation and facility management on National Forest System (NFS)
lands within rights-of-way for electric transmission and distribution
facilities (powerlines) and on their abutting lands.
DATES: Comments must be received in writing by November 25, 2019.
ADDRESSES: Submit comments electronically by following the instructions
at the Federal eRulemaking portal at http://www.regulations.gov.
Comments also may be submitted by mail to the USDA Forest Service,
Lands and Realty Staff, 201 14th Street SW, Mailstop 1124, Washington,
DC 20250-1125. If comments are sent electronically, duplicate comments
should not be sent by mail. Comments should be confined to issues
pertinent to the proposed rule, and the reasons for any recommended
changes should be explained. The specific section and wording being
addressed should be referenced, where possible. All comments, including
names and addresses when provided, will be placed in the record and
will be available for public inspection and copying. The public may
inspect comments received on this proposed rule in the Lands and Realty
Management Staff, 1st Floor Southwest, 201 14th Street SW, Washington,
DC 20250-1125, on business days between 8:30 a.m. and 4:00 p.m. Those
wishing to inspect comments are encouraged to call ahead at 202-205-
1196 to facilitate entry into the building.
FOR FURTHER INFORMATION CONTACT: Reggie Woodruff, Energy Program
Manager, Lands and Realty Management staff, (202) 205-1196.
SUPPLEMENTARY INFORMATION:
Background and Need for the Proposed Rule
The proposed rule is being promulgated pursuant to Section 512 (43
U.S.C. 1772), which is an amendment to Title V of FLPMA (43 U.S.C.
1761-1772). Section 501(a)(5) of FLPMA (43 U.S.C. 1761(a)(5))
authorizes the Forest Service to issue or reissue right-of-way
authorizations for powerlines on NFS lands. Section 501(b)(1) of FLPMA
(43 U.S.C. 1761(b)(1)) provides that prior to issuing or reissuing a
special use authorization for a right-of-way, the Forest Service must
require that the applicant submit any plans, contracts, or other
information related to the proposed or existing use of the right-of-way
that the Agency deems necessary to determine, in accordance with FLPMA,
whether to issue or reissue the authorization and the terms and
conditions that should be included in the authorization.
Section 503(c) of FLPMA (43 U.S.C. 1763(c)) provides that right-of-
way authorizations must be issued or reissued pursuant to Title V of
FLMPA and its implementing regulations and must also be subject to such
terms and conditions as the Forest Service may prescribe regarding
extent, duration, survey, location, construction, maintenance, transfer
or assignment, and termination. Section 505 of FLPMA (43 U.S.C. 1765)
gives the Forest Service broad discretion to establish terms and
conditions in right-of-way authorizations, including terms and
conditions that will effectuate the purposes of FLPMA and its
implementing regulations and minimize damage to scenic and aesthetic
values and fish and wildlife habitat and otherwise protect the
environment (43 U.S.C. 1765(a)(i)-(ii)). In addition, Section 505(b)
(43 U.S.C. 1765(b)) requires the Forest Service to include terms and
conditions in right-of-way authorizations that the Agency deems
necessary to protect federal property and economic interests;
efficiently manage the lands which are subject or adjacent to the
right-of-way; protect lives and property; protect the interests of
individuals living in the general area traversed by the right-of-way
who rely on the fish, wildlife, and other biotic resources of the area
for subsistence purposes; require location of the right-of-way along a
route that will cause least damage to the environment, taking into
consideration feasibility and other relevant factors; and otherwise
protect the public interest in the lands traversed by or adjacent to
the right-of-way.
Consistent with this statutory authority, the Forest Service
regulates the occupancy and use of NFS lands for powerline rights-of-
way through issuance of a special use authorization under 36 CFR part
251, subpart B. The Forest Service must include in special use
authorizations terms and conditions the Agency deems necessary to
effectuate the purposes of FLPMA and its implementing regulations (36
CFR 251.56(a)(1)(i)(A)); minimize damage to scenic and esthetic values
and fish and wildlife habitat and otherwise protect the environment (36
CFR 251.56(a)(1)(i)(B)); protect federal property and economic
interests (36 CFR 251.56(a)(1)(ii)(A)); efficiently manage the lands
subject and adjacent to the authorized use (36 CFR
251.56(a)(1)(ii)(B)); protect lives and property (36 CFR
251.56(a)(1)(ii)(D)); protect the interests of individuals living in
the general area of the authorized use who rely on resources of the
area (36 CFR 251.56(a)(1)(ii)(E)); and otherwise protect the public
interest (36 CFR 251.56(a)(1)(ii)(G)).
Based on these statutory and regulatory requirements, the Forest
Service issues special use authorizations for powerline rights-of-way
that require the holder, in consultation with the Forest Service, to
prepare an operating plan that includes provisions governing vegetation
and facility management on NFS lands within and abutting the right-of-
way. Right-of-way authorizations for powerlines on NFS lands also
require Forest Service approval of the operating plan before it is
implemented.
In 2018, Congress amended FLPMA to add Section 512, which
establishes requirements for the development and approval of operating
plans and agreements for vegetation and facility management on NFS
lands within powerline rights-of-way and on their abutting lands.
Consistent with the definitions in Section 512(a), the Forest Service
is proposing to amend its regulations at 36 CFR 251.51 to add
definitions for ``hazard tree,'' ``operating plan or agreement for an
electric transmission or distribution line,'' and ``owner or
operator.'' The proposed rule would define an operating plan or
agreement for a powerline on NFS lands as a plan or agreement that
provides for long-term, cost-effective, efficient, and timely
inspection, operation, maintenance and vegetation management of the
powerline within the right-of-way and on abutting NFS lands, including
management of hazard trees, to enhance electric reliability, promote
public safety, and avoid fire hazards.
[[Page 50699]]
In addition, the Forest Service is proposing to revise 36 CFR
251.56, which governs terms and conditions in special use
authorizations, to add a new paragraph (h), entitled Operating plans
and agreements for electric transmission and distribution facilities.
Consistent with Section 512(c), this new paragraph would include
requirements for operating plans and agreements for powerlines. Per
Section 512(c)(1) and (c)(4)(A), paragraph (h) of the proposed rule
would provide for the operating plan or agreement to be prepared by the
owner or operator of the powerline, approved by the authorized officer,
and incorporated by reference into the corresponding special use
authorization. Consistent with Section 512(d), paragraphs (h)(1) and
(h)(2) of the proposed rule would specify when an agreement instead of
an operating plan may be used. Consistent with Section 512(k),
paragraph (h)(3) would provide that an existing operating plan must, at
the holder's initiative, be revised consistent with Section 512 and
submitted to the Forest Service for approval. Paragraph (h)(4), per
Section 512(c)(1), would provide that an operating plan or agreement
may be prepared by the owner or operator alone or in consultation with
the Forest Service.
Per Section 512(c)(3) and (c)(4), (e), and (f), paragraph (h)(5) of
the proposed rule would address the contents of an operating plan or
agreement for a powerline, including:
Coordination between the owner or operator and the Forest
Service;
Compliance with applicable law; applicable reliability and
safety standards; the applicable land management plan; environmental
compliance; resource protection; fire control; routine, non-routine,
and emergency maintenance of the powerline; and road and trail
construction, reconstruction, and maintenance in support of the
powerline;
Best management practices for vegetation management,
procedures for marking timber, and road and trail standards and best
management practices;
Types of activities that require prior written approval
from the Forest Service, including construction, reconstruction, and
non-routine maintenance of the powerline; non-emergency vegetation
management; and road and trail construction and reconstruction in
support of the powerline; and
Timeframes for:
[cir] The owner or operator to notify the Forest Service of
routine, non-routine, and emergency maintenance of the powerline and
non-emergency and emergency vegetation management for the powerline;
[cir] The owner or operator to request approval from the Forest
Service of non-routine maintenance of and non-emergency vegetation
management for the powerline; and
[cir] The authorized officer to respond to a request by the owner
or operator for approval of non-routine maintenance of and non-
emergency vegetation management for the powerline.
Procedures for prior Forest Service approval of non-
emergency vegetation management and emergency vegetation management of
the powerline without prior Forest Service approval; and
Procedures for modification of an approved operating plan
or agreement.
Per Section 512(c)(4)(A), paragraph (h)(6) of the proposed rule
would require proposed operating plans and agreements to be reviewed
and approved in accordance with procedures developed jointly by the
Forest Service and the United States Department of the Interior, Bureau
of Land Management. Paragraph (h)(6), consistent with Section
512(c)(4), would require these procedures to specify timeframes for:
Submission of agency comments on a proposed operating plan
or agreement;
Approval of a proposed operating plan or agreement, to the
maximum extent practicable, within 120 days from the date the proposed
operating plan or agreement was submitted; and
Approval of any necessary modifications to an approved
operating plan or agreement.
Per Section 512(c)(1) and (c)(4)(A), proposed paragraph (h)(7)
would provide that when an approved operating plan or agreement expires
before termination of the corresponding special use authorization, the
owner or operator must prepare a new proposed operating plan or
agreement, either solely or in consultation with the authorized
officer, and submit it to the authorized officer for review and
approval in accordance with the procedures described in proposed
paragraph (h)(6).
Consistent with Section 512(h)(1), proposed paragraph (h)(8) would
require the Forest Service to report annually on its website requests
for approval of activities to be conducted under operating plans and
agreements and the response to those requests.
Proposed paragraph (h)(9)(i), per Section 512(g)(1), would provide
that strict liability in tort may not be imposed on an owner or
operator for injury or damages resulting from the Forest Service's
unreasonably withholding or delaying approval of an operating plan or
agreement or unreasonably failing to adhere to an applicable schedule
in an approved operating plan or agreement. Consistent with Section
512(g)(2), proposed paragraph (h)(9)(ii) would provide that for 10
years from the effective date of Section 512, strict liability in tort
for injury or damages resulting from activities conducted by an owner
or operator under an approved agreement may not exceed $500,000 per
incident.
Consistent with Section 512(b), proposed paragraph (h)(10) would
require the Forest Service to issue and periodically update guidance to
ensure that operating plans and agreements for powerline authorizations
are appropriately developed, approved, and implemented. Proposed
paragaph (h)(10) would require that the guidance:
Be developed in consultation with owners of powerlines;
Be compatible with mandatory reliability standards
established by the Electric Reliability Organization;
Consider all applicable law, including fire safety and
electrical system reliability requirements, such as reliability
standards established by the Electric Reliability Organization;
Consider the 2016 Memorandum of Understanding on
Vegetation Management for Powerline Rights-of-Way Among the Edison
Electric Institute, Utility Arborist Association, the National Park
Service, the United States Fish and Wildlife Service, the Bureau of
Land Management, the Forest Service, and the United States
Environmental Protection Agency, and any successor memorandum of
understanding;
Seek to minimize the need for case-by-case approvals for
non-emergency vegetation management (including hazard tree removal),
facility inspection, and operation and maintenance of powerlines; and
Provide for prompt and timely review of requests to
conduct non-emergency vegetation management of powerlines.
Per Section 512(c)(5), the Forest Service's current regulations
implementing the National Environmental Policy Act (NEPA) at 36 CFR
220.6(d)(10) and (e)(2) exclude categories of actions covered by an
operating plan or agreement for a powerline authorization from
documentation in an environmental assessment (EA) or an environmental
impact statement (EIS). Section 220.6(d)(10) establishes a categorical
exclusion from documentation in an EA or EIS (CE) for reissuance of an
existing
[[Page 50700]]
special use authorization that involves only administrative changes and
does not involve changes in the authorized facilities or increase in
the scope or intensity of authorized activities, or extension to the
term of the authorization, when the holder is in full compliance with
the terms and conditions of the existing authorization. Section
220.6(e)(2) establishes a CE for additional construction or
reconstruction of existing powerlines in a designated corridor,
including reconstructing a powerline by replacing poles and wires.
Proposed revisions to the Forest Service's NEPA regulations at 36
CFR 220.5 (84 FR 27544) would enhance the Agency's ability to rely on a
CE in approving activities covered by an operating plan or agreement
for a powerline authorization. Proposed Sec. 220.5(d)(11) would
establish a new CE that does not require a project or case file and
decision memo for reissuance of special use authorizations to reduce
the backlog of expired and expiring authorizations. One of the examples
for this CE would be issuance of a new authorization to replace a
powerline authorization that is at the end of its term. In addition,
the proposed revisions to the Agency's NEPA regulations would expand
the current CE for special use authorizations at Sec. 220.5(e)(3) from
5 to 20 acres and would remove the qualifier ``minor.'' One of the
examples for this CE would be approval of up to a 40-foot-wide, 4-mile-
long utility corridor on NFS lands.
As provided by Section 512(j)(2), the Forest Service will publish a
final rule by March 31, 2020. The Agency anticipates that
implementation of the rule would promote the reliability of the United
States' electrical grid and would reduce the threat of damage to
powerlines, natural resources, and nearby communities by streamlining
approval for routine and emergency vegetation management within and
abutting powerline rights-of-way on NFS lands.
Regulatory Certifications
Executive Order 12866
Executive Order (E.O.) 12866 provides that the Office of
Information and Regulatory Affairs (OIRA) in the Office of Management
and Budget will review all significant rules. OIRA has determined that
this proposed rule is not significant.
Executive Order 13771
The proposed rule has been reviewed in accordance with E.O. 13771
on reducing regulation and controlling regulatory costs and has been
designated as an ``other action'' for purposes of the E.O.
Congressional Review Act
Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.),
OIRA has designated this rule as not a major rule, as defined by 5
U.S.C. 804(2).
National Environmental Policy Act
This proposed rule would establish procedures for the development
and approval of operating plans and agreements for vegetation and
facility management within and abutting powerline rights-of-way on NFS
lands. Agency regulations at 36 CFR 220.6(d)(2) (73 FR 43093) exclude
from documentation in an environmental assessment or environmental
impact statement rules, regulations, or policies to establish Service-
wide administrative procedures, program processes, or instructions. The
Agency has concluded that this proposed rule falls within this category
of actions and that no extraordinary circumstances exist which would
require preparation of an environment assessment or environmental
impact statement.
Regulatory Flexibility Act Analysis
This proposed rule has been considered in light of the Regulatory
Flexibility Act (5 U.S.C. 602 et seq.). This proposed rule would not
have any direct effect on small entities as defined by the Regulatory
Flexibility Act. The proposed rule would not impose recordkeeping
requirements on small entities; would not affect their competitive
position in relation to large entities; and would not affect their cash
flow, liquidity, or ability to remain in the market. Therefore, the
Forest Service has determined that this proposed rule would not have a
significant economic impact on a substantial number of small entities
pursuant to the Regulatory Flexibility Act.
Federalism
The Agency has considered this proposed rule under the requirements
of E.O. 13132, Federalism and has determined that the proposed rule
conforms with the Federalism principles set out in the E.O.; would not
impose any compliance costs on the states; and would not have
substantial direct effects on the states, the relationship between the
federal government and the states, or the distribution of power and
responsibilities among the various levels of government. Therefore, the
Agency has determined that no further assessment of Federalism
implications is necessary.
Consultation and Coordination With Indian Tribal Governments
The Agency has determined that national tribal consultation is not
necessary for this proposed rule. This proposed rule, which would
implement statutory requirements governing operating plans and
agreements for powerline rights-of-way on NFS lands, is programmatic
and would not have any direct effects on tribes. Tribal consultation
will occur as appropriate in connection with specific applications for
powerline rights-of-way on NFS lands.
No Takings Implications
This proposed rule has been analyzed in accordance with the
principles and criteria contained in E.O. 12630, Governmental Actions
and Interference with Constitutionally Protect Property Rights. The
Agency has determined that the proposed rule would not pose the risk of
a taking of private property.
Controlling Paperwork Burdens on the Public
This proposed rule does not contain any recordkeeping or reporting
requirements or other information collection requirements as defined in
5 U.S.C. 1320 that are not already required by law or not already
approved for use. Accordingly, the review provisions of the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.) and its implementing
regulations at 5 CFR part 1320 do not apply.
Energy Effects
This proposed rule has been reviewed under E.O. 13211, Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. The Agency has determined that this proposed rule
does not constitute a significant energy action as defined in the E.O.
Civil Justice Reform
This proposed rule has been reviewed under E.O. 12988, Civil
Justice Reform. If the proposed rule were adopted, (1) all state and
local laws and regulations that conflict with the proposed rule or that
would impede its full implementation would be preempted; (2) no
retroactive effect would be given to the proposed rule; and (3) it
would not require administrative proceedings before parties may file
suit in court challenging its provisions.
[[Page 50701]]
Unfunded Mandates
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2
U.S.C. 1531-1538), the Agency has assessed the effects of this proposed
rule on state, local, and tribal governments and the private sector.
This proposed rule would not compel the expenditure of $100 million or
more by any state, local, or tribal government or anyone in the private
sector. Therefore, a statement under section 202 of the act is not
required.
List of Subjects in 36 CFR Part 251
Electric power, Mineral resources, National Forests, Rights-of-way,
and Water resources.
Therefore, for the reasons set out in the preamble, the Forest
Service proposes to amend part 251, subpart B, of title 36 of the Code
of Federal Regulations as follows:
PART 251--LAND USES
Subpart B--Special Uses
0
1. Revise the authority citation for part 251, subpart B, to read as
follows:
Authority: 16 U.S.C. 460l-6a, 460l-6d, 472, 497b, 497c, 551,
580d, 1134, 3210; 30 U.S.C. 185; 43 U.S.C. 1740, 1761-1772.
0
2. In Sec. 251.51, add definitions for ``hazard tree,'' ``operating
plan or agreement for an electric transmission or distribution
facility,'' and ``owner or operator,'' in alphabetical order, to read
as follows:
Sec. 251.51 Definitions.
* * * * *
Hazard tree--for purposes of vegetation management for an electric
transmission or distribution line, any tree or part thereof (whether
located inside or outside a right-of-way) that has been designated,
prior to tree failure, by a certified or licensed arborist or forester
under the supervision of the Forest Service or the owner or operator
(a) to be dead, likely to die within the routine vegetation management
cycle, or likely to fail within the routine vegetation management
cycle; and (b) if the tree or part of the tree failed, likely to cause
substantial damage or disruption of a transmission or distribution
facility or come within 10 feet of an electric power line.
* * * * *
Operating plan or agreement for an electric transmission or
distribution facility--a plan or an agreement prepared by the owner or
operator of an electric transmission or distribution facility, approved
by the authorized officer, and incorporated by reference into the
corresponding special use authorization that provides for long-term,
cost-effective, efficient, and timely inspection, operation,
maintenance, and vegetation management of the electric transmission and
distribution facility within the right-of-way and on abutting National
Forest System lands, including management of hazard trees, to enhance
electric reliability, promote public safety, and avoid fire hazards.
* * * * *
Owner or operator--for purposes of an electric transmission or
distribution facility, the owner or operator of the facility or a
contractor or other agent engaged by the owner or operator of the
facility.
* * * * *
0
3. In Sec. 251.56, add paragraph (h), to read as follows:
Sec. 251.56 Terms and conditions.
* * * * *
(h) Operating plans and agreements for electric transmission and
distribution facilities (hereinafter, and for purposes of this
paragraph only, ``operating plans'' and ``agreements''). An operating
plan or agreement consistent with 36 CFR 251.56(h) is required for new
and reauthorized electric transmission and distribution facilities on
National Forest System lands. Operating plans and agreements must have
prior written approval from the authorized officer.
(1) Use of operating plans. Operating plans, rather than
agreements, are required for electric transmission and distribution
facilities that are subject to the mandatory reliability standards
established by the Electric Reliability Organization and that sold more
than 1,000,000 megawatt hours of electric energy for purposes other
than resale during each of the 3 calendar years immediately preceding
March 23, 2018.
(2) Use of agreements. Electric transmission and distribution
facilities that are not subject to the mandatory reliability standards
established by the Electric Reliability Organization or that sold less
than or equal to 1,000,000 megawatt hours of electric energy for
purposes other than resale during each of the 3 calendar years
immediately preceding March 23, 2018, may be subject to an agreement,
instead of an operating plan.
(3) Existing operating plans. Existing operating plans shall be
modified at the owner's or operator's initiative as necessary to be
consistent with 36 CFR 251.56(h) and submitted to the authorized
officer for approval. Existing operating plans that are consistent with
36 CFR 251.56(h) do not have to be submitted for re-approval by the
authorized officer.
(4) Development of proposed operating plans and agreements. Owners
and operators may develop a proposed operating plan or agreement on
their own or in consultation with the authorized officer.
(5) Content of operating plans and agreements. At a minimum,
operating plans and agreements shall:
(i) Identify the electric transmission or distribution facility
covered by the operating plan or agreement (hereinafter ``covered
line'');
(ii) Consider preexisting operating plans and agreements for the
covered line;
(iii) Address coordination between the owner or operator and the
Forest Service and specify their points of contact;
(iv) Address compliance with applicable law; applicable reliability
and safety standards (owners and operators subject to mandatory
reliability standards established by the Electric Reliability
Organization or superseding standards may use those standards as part
of their operating plan); the applicable land management plan;
environmental compliance; resource protection; fire control; routine,
non-routine, and emergency maintenance of the covered line; and road
and trail construction, reconstruction, and maintenance in support of
the covered line;
(v) Identify best management practices for vegetation management,
procedures for marking timber, and road and trail standards and best
management practices;
(vi) Address the types of activities conducted under the operating
plan or agreement that require prior written approval from the
authorized officer under 36 CFR 251.61, including construction,
reconstruction, and non-routine maintenance of the covered line; non-
emergency vegetation management; and road and trail construction and
reconstruction in support of the covered line;
(vii) Specify timeframes for:
(A) The owner or operator to notify the authorized officer of
routine, non-routine, and emergency maintenance of the covered line and
non-emergency and emergency vegetation management for the covered line;
(B) The owner or operator to request approval from the authorized
officer of non-routine maintenance of and non-emergency vegetation
management for the covered line; and
(C) The authorized officer to respond to a request by the owner or
operator for approval of non-routine maintenance of
[[Page 50702]]
and non-emergency vegetation management for the covered line;
(viii) Include the following procedures with regard to authorized
officer approval of vegetation management:
(A) Non-emergency vegetation management. Non-emergency vegetation
management must have prior written approval from the authorized
officer, unless all 3 of the following conditions are met:
(1) The owner or operator has submitted a request for approval to
the authorized officer in accordance with the specified timeframe in
the approved operating plan or agreement;
(2) The proposed vegetation management is in accordance with the
approved operating plan or agreement; and
(3) The authorized officer has failed to respond to the request in
accordance with the specified timeframe in the approved operating plan
or agreement.
(B) Emergency vegetation management. If vegetation or hazard trees
have contacted or, as specified in the operating plan or agreement,
present an imminent danger of contacting the covered line from within
or adjacent to the right-of-way for the covered line, the owner or
operator may, without prior written approval from the authorized
officer, prune or remove the vegetation or hazard trees to avoid the
disruption of electric service and eliminate immediate fire and safety
hazards. The owner or operator shall notify the authorized officer in
writing of the location and quantity of the pruning or removal within
24 hours of the pruning or removal;
(ix) Include the following procedures for modification of an
approved operating plan or agreement:
(A) The authorized officer shall give the owner or operator of the
covered line prior notice of any changed conditions that warrant a
modification of the approved operating plan or agreement;
(B) The authorized officer shall give the owner or operator an
opportunity to submit a proposed modification of the approved operating
plan or agreement, consistent with the procedures described in
paragraph (h)(6) of this section, to address the changed conditions;
(C) The authorized officer shall consider the proposed modification
consistent with the procedures described in paragraph (h)(6) of this
section; and
(D) The owner or operator may continue to implement the approved
operating plan or agreement to the extent it does not directly and
adversely affect the conditions prompting the modification; and
(x) For agreements only, reflect the relative financial resources
of the owner or operator of the covered line compared to other owners
or operators of an electric transmission or distribution facility.
(6) Review and approval of proposed operating plans and agreements.
Proposed operating plans and agreements shall be submitted to the
authorized officer for review and approval in writing before they are
implemented. Proposed operating plans and agreements shall be reviewed
and approved in accordance with procedures developed jointly by the
Forest Service and the United States Department of the Interior, Bureau
of Land Management. These procedures shall be consistent with
applicable law and shall specify timeframes for:
(i) Submission of applicable agency comments on a proposed
operating plan or agreement;
(ii) Approval of a proposed operating plan or agreement that, to
the maximum extent practicable, is within 120 days from the date the
proposed operating plan or agreement was submitted; and
(iii) Approval of any necessary modifications to an approved
operating plan or agreement.
(7) Expiration of approved operating plans and agreements before
termination of the corresponding special use authorization. Upon
expiration of an approved operating plan or agreement before
termination of the corresponding special use authorization, the owner
or operator must prepare a new proposed operating plan or agreement,
either solely or in consultation with the authorized officer, and
submit it to the authorized officer for review and approval in
accordance with the procedures described in paragraph (h)(6) of this
section.
(8) Reporting of requests and responses to requests for non-
emergency vegetation management. The Forest Service shall annually
report on its website requests for approval of non-emergency vegetation
management pursuant to paragraph (h)(5)(viii)(A) of this section and
responses to those requests.
(9) Strict Liability. (i) Notwithstanding paragraph (d)(2) of this
section, strict liability in tort may not be imposed on an owner or
operator for injury or damages resulting from the authorized officer's
unreasonably withholding or delaying approval of an operating plan or
agreement or unreasonably failing to adhere to an applicable schedule
in an approved operating plan or agreement.
(ii) Notwithstanding paragraph (d)(2) of this section, for 10 years
from March 23, 2018, strict liability in tort for injury or damages
resulting from activities conducted by an owner or operator under an
approved agreement may not exceed $500,000 per incident.
(10) Guidance. To enhance the reliability of the electric grid and
to reduce the threat of wildfire damage to, and wildfire caused by
vegetation-related conditions within, electric transmission and
distribution rights-of-way and abutting NFS lands, including hazard
trees, the Forest Service shall issue and periodically update guidance
to ensure that provisions are appropriately developed and implemented
for utility vegetation management, facility inspection, and operation
and maintenance of rights-of-way. The guidance shall:
(i) Be developed in consultation with owners;
(ii) Be compatible with mandatory reliability standards established
by the Electric Reliability Organization;
(iii) Consider all applicable law, including fire safety and
electrical system reliability requirements, such as reliability
standards established by the Electric Reliability Organization;
(iv) Consider the 2016 Memorandum of Understanding on Vegetation
Management for Powerline Rights-of-Way Among the Edison Electric
Institute, Utility Arborist Association, the National Park Service, the
U.S. Fish and Wildlife Service, the Bureau of Land Management, the
Forest Service, and the U.S. Environmental Protection Agency, and any
successor memorandum of understanding;
(v) Seek to minimize the need for case-by-case approvals for non-
emergency vegetation management (including hazard tree removal),
facility inspection, and operation and maintenance of electric
transmission and distribution facilities; and
(vi) Provide for prompt and timely review of requests to conduct
non-emergency vegetation management.
Dated: September 5, 2019.
Daniel James Jiron,
Acting Deputy Under Secretary, Natural Resources and Environment.
[FR Doc. 2019-20741 Filed 9-24-19; 8:45 am]
BILLING CODE 3411-15-P
