Rule2022-02889
Land Uses; Special Uses; Procedures for Operating Plans and Agreements for Powerline Facility Maintenance and Vegetation Management Within and Abutting the Linear Right-of-Way for a Powerline Facility
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
February 11, 2022
Effective
February 9, 2022
Issuing agencies
Agriculture DepartmentForest Service
Abstract
The Forest Service, U.S. Department of Agriculture, is making purely technical, clarifying revisions to its existing regulations governing procedures for operating plans and agreements for powerline facility inspection, operation and maintenance, and vegetation management. The revisions are necessary to conform definitions and text in the regulations to revisions made to the proposed implementing directive in response to public comment. These purely technical, clarifying revisions do not formulate standards, criteria, or guidelines applicable to Forest Service programs and therefore do not require public notice and comment under section 14(a) of the Forest and Rangeland Renewable Resources Planning Act of 1974.
Full Text
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<title>Federal Register, Volume 87 Issue 29 (Friday, February 11, 2022)</title>
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[Federal Register Volume 87, Number 29 (Friday, February 11, 2022)]
[Rules and Regulations]
[Pages 7947-7950]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-02889]
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DEPARTMENT OF AGRICULTURE
Forest Service
36 CFR Part 251
RIN 0596-AD36
Land Uses; Special Uses; Procedures for Operating Plans and
Agreements for Powerline Facility Maintenance and Vegetation Management
Within and Abutting the Linear Right-of-Way for a Powerline Facility
AGENCY: Forest Service, (Agriculture) USDA.
ACTION: Final rule; technical amendment.
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SUMMARY: The Forest Service, U.S. Department of Agriculture, is making
purely technical, clarifying revisions to its existing regulations
governing procedures for operating plans and agreements for powerline
facility inspection, operation and maintenance, and vegetation
management. The revisions are necessary to conform definitions and text
in the regulations to revisions made to the proposed implementing
directive in response to public comment. These purely technical,
clarifying revisions do not formulate standards, criteria, or
guidelines applicable to Forest Service programs and therefore do not
require public notice and comment under section 14(a) of the Forest and
Rangeland Renewable Resources Planning Act of 1974.
DATES: Effective February 9, 2022.
FOR FURTHER INFORMATION CONTACT: Reggie Woodruff, Energy Program
Manager, Lands and Realty Management, 202-205-1196 or
<a href="/cdn-cgi/l/email-protection#7e0c1b1917101f12500911111a0c0b18183e0b0d1a1f50191108"><span class="__cf_email__" data-cfemail="a1d3c4c6c8cfc0cd8fd6cecec5d3d4c7c7e1d4d2c5c08fc6ced7">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: This final rule makes purely technical,
clarifying revisions to the Department's existing regulations at 36 CFR
251.51 and 251.56(h) governing procedures for operating plans and
agreements for powerline facility inspection, operation and
maintenance, and vegetation management. The revisions conform
definitions in Sec. 251.51 and text in Sec. 251.56(h) to revisions
made to the proposed implementing directive in response to public
comment.
Specifically, the Department is adding the term ``qualified
vegetation management specialist'' to the definition of ``hazard tree''
to be more inclusive of personnel titles used by owners and operators
and is removing the reference to the Forest Service in connection with
who may identify hazard trees because the owner or operator, not the
Forest Service, is responsible for inspecting, identifying, and felling
hazard trees.
In the definition of ``minimum vegetation clearance distance,'' the
Department is adding the phrase ``that is used to prevent flashover
between conductors and vegetation for various altitudes and operating
voltages'' and removing the phrase ``within or abutting the linear
boundary of a special use authorization for a powerline facility'' to
better align the definition of minimum vegetation clearance distance
with the industry definition.
In the definition for ``operating plan or agreement for a powerline
facility,'' the Department is adding a reference to construction,
reconstruction, and maintenance of access roads and trails, which are
covered by an operating plan or agreement.
The Department is revising the definition for ``powerline
facility'' to clarify that it includes communications equipment that is
owned by the owner or operator; that solely supports operation and
maintenance of the electric distribution or transmission lines; and
that is not leased to other parties for communications uses that serve
other purposes. Communications equipment that does not meet these
criteria must be authorized under a separate special use authorization.
The Department is removing the terms ``removal'' and ``remove'' as
they relate to hazard trees and vegetation in the definitions and text
and replacing them with the terms ``felling'' and ``fell'' to
accurately describe accepted treatment of hazard trees and vegetation.
Consistent with the defined term ``linear right-of-way,'' the
Department is replacing the phrase ``linear boundary of a special use
authorization for a powerline facility'' with the phrase ``linear
right-of-way for a powerline facility'' in the definitions for
``minimum vegetation clearance distance,'' ``emergency vegetation
management,'' ``operating plan or agreement for a powerline facility
(operating plan or agreement),'' and ``non-emergency (routine)
vegetation management.''
An owner or operator that meets either of the two criteria for an
operating agreement specified in the governing statute, section 512 of
the Federal Land Policy and Management Act (43 U.S.C. 1772), is
eligible for an operating agreement. An owner or operator that meets
both criteria is also eligible. To clarify that point, the Department
is revising Sec. 251.56(h)(2) to provide that an owner or operator
that meets the first and/or the second criterion is eligible for an
operating agreement.
Consistent with the final implementing directive, for powerline
facilities without an operating plan, the Department is revising Sec.
251.56(h)(3) to extend the deadline for submitting a proposed operating
plan or agreement from August 31, 2023, to 18 months from the date the
authorized officer notifies the owner or operator that a proposed
operating plan or agreement must be submitted, which must occur no
later than September 30, 2026. Revised Sec. 251.56(h)(3) gives the
authorized officer the discretion to determine the sequence of
notification of the requirement to submit a proposed modified operating
plan or proposed operating plan or agreement, based on factors
enumerated in the final implementing directive.
The final implementing directive provides for the requisite
environmental
[[Page 7948]]
analysis and consultation for routine vegetation management to be
completed before a proposed operating plan or agreement is approved, or
case-by-case after a proposed operating plan or agreement is approved,
but before routine vegetation management is conducted. Accordingly, the
Department is revising the second criterion in Sec.
251.56(h)(5)(viii)(A) that must be met to conduct routine vegetation
management without authorized officer approval to state that the
proposed routine vegetation management must be covered by approval of a
proposed operating plan or agreement or by subsequent case-by-case
environmental analysis and consultation.
Also for consistency with the final implementing directive, the
Department is revising Sec. 251.56(h)(5)(viii)(B) to provide that the
owner or operator must notify the authorized officer by email of the
location and type of emergency vegetation management as soon as
practicable, but no later than 24 hours after completion, and that
within 30 days of completion must submit to the authorized officer a
written report detailing at a minimum the location, type, and scope of
emergency vegetation management conducted, the reason it was conducted,
the methods used to conduct it, and the resulting benefit.
For consistency with the final implementing directive, the
Department is revising Sec. 251.56(h)(7) to require that at least
every 10 years, rather than every 5 years, from the approval date of an
operating plan or agreement, the owner or operator must review and, as
appropriate not just as necessary, propose updates to the operating
plan or agreement to ensure consistency with changed conditions. In
addition, consistent with the final implementing directive, revised
paragraph (h)(7) provides that proposed updates to an approved
operating plan or agreement that are deemed significant by the
authorized officer will be treated as proposed modifications and must
be submitted by the owner or operator for review and approval by the
authorized officer in accordance with the procedures described in
paragraph (h)(6). Revised paragraph (h)(7) further provides that
proposed updates that are deemed non-significant by the authorized
officer may be made by written agreement of the owner or operator and
the authorized officer.
Regulatory Certifications
Regulatory Planning and Review (Executive Orders 12866 and 13563)
Consistent with Executive Order (E.O.) 12866, the Office of
Information and Regulatory Affairs (OIRA) in the Office of Management
and Budget will determine whether proposed, interim, and final rules
that impose, eliminate, or modify requirements on non-Forest Service
parties are significant and will review any proposed, interim, or final
rules that OIRA has designated as significant. This final rule does not
impose, eliminate, or modify requirements on non-Forest Service parties
and therefore does not require a significance determination by OIRA.
E.O. 13563 reaffirms the principles of E.O. 12866 while calling for
improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The Forest Service has developed this final rule consistent with E.O.
13563.
Congressional Review Act
Since this final rule does not impose, eliminate, or modify
requirements on non-Forest Service parties, it is not a major rule as
defined by the Small Business Regulatory Enforcement Fairness Act of
1996 (known as the Congressional Review Act), 5 U.S.C. 804(2).
National Environmental Policy Act
This final rule will make purely technical, clarifying revisions to
existing Forest Service regulations at 36 CFR 251.51 and 251.56(h) to
conform to revisions made to the proposed implementing directive in
response to public comment. Agency regulations at 36 CFR 220.6(d)(2)
(73 FR 43093) exclude from documentation in an environmental assessment
(EA) or environmental impact statement (EIS) ``rules, regulations, or
policies to establish Service-wide administrative procedures, program
processes, or instructions.'' The Forest Service has concluded that
this final rule falls within this category of actions and that no
extraordinary circumstances exist which would require preparation of an
EA or EIS.
Regulatory Flexibility Act Analysis
The Forest Service has considered this final rule under the
requirements of the Regulatory Flexibility Act (5 U.S.C. 602 et seq.).
This final rule will not have any direct effect on small entities as
defined by the Regulatory Flexibility Act. The final rule will not
impose recordkeeping requirements on small entities; will not affect
their competitive position in relation to large entities; and will not
affect their cash flow, liquidity, or ability to remain in the market.
Therefore, the Forest Service has determined that this final rule will
not have a significant economic impact on a substantial number of small
entities pursuant to the Regulatory Flexibility Act.
Federalism
The Forest Service has considered this final rule under the
requirements of E.O. 13132, Federalism. The Forest Service has
determined that the final rule conforms with the federalism principles
set out in this E.O.; will not impose any compliance costs on the
states; and will not have substantial direct effects on the states, on
the relationship between the Federal government and the states, or on
the distribution of power and responsibilities among the various levels
of government. Therefore, the Forest Service has concluded that the
final rule does not have Federalism implications.
Consultation With Tribal Governments
The Forest Service has reviewed this final rule in accordance with
the requirements of E.O. 13175, Consultation and Coordination with
Indian Tribal Governments. The Forest Service has determined that
national tribal consultation is not necessary for the final rule. The
final rule, which will make purely technical, clarifying revisions to
existing Forest Service regulations at 36 CFR 251.51 and 251.56(h) to
conform to revisions made to the proposed implementing directive in
response to public comment, does not impose, eliminate, or modify
requirements on non-Forest Service parties and therefore does not have
any direct effects on tribes.
Environmental Justice
The Forest Service has considered the final rule under the
requirements of E.O. 12898, Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations. The Forest
Service has determined that the final rule is consistent with E.O.
12898.
No Takings Implications
The Forest Service has analyzed the final rule in accordance with
the principles and criteria in E.O. 12630, Governmental Actions and
Interference with Constitutionally Protected Property Rights. The
Forest Service has determined that the final rule will not
[[Page 7949]]
pose the risk of a taking of private property.
Energy Effects
The Forest Service has reviewed the final rule under E.O. 13211,
Actions Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. The Forest Service has determined that the final
rule will not constitute a significant energy action as defined in E.O.
13211, and OIRA has not otherwise designated the final rule as a
significant energy action.
Civil Justice Reform
The Forest Service has analyzed the final rule in accordance with
the principles and criteria in E.O. 12988, Civil Justice Reform. Upon
issuance of the final rule, (1) all state and local laws and
regulations that conflict with the final rule or that impede its full
implementation will be preempted; (2) no retroactive effect will be
given to this final rule; and (3) it will not require administrative
proceedings before parties may file suit in court challenging its
provisions.
Unfunded Mandates
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2
U.S.C. 1531-1538), signed into law on March 22, 1995, the Forest
Service has assessed the effects of the final rule on state, local, and
tribal governments and the private sector. The final rule will not
compel the expenditure of $100 million or more by any state, local, or
tribal government or anyone in the private sector. Therefore, a
statement under section 202 of the Act is not required.
Controlling Paperwork Burdens on the Public
The final rule does not contain information collection requirements
as defined in 5 CFR part 1320 that are not already required by law or
not already approved for use. Accordingly, the review provisions of the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) and its
implementing regulations at 5 CFR part 1320 do not apply.
List of Subjects in 36 CFR Part 251
Electric power, Mineral resources, National forests, Rights-of-way,
and Water resources.
Therefore, for the reasons set forth in the preamble, the
Department is amending part 251, subpart B, of title 36 of the Code of
Federal Regulations as follows:
PART 251--LAND USES
Subpart B--Special Uses
0
1. The authority citation for part 251 continues to read as follows:
Authority: 16 U.S.C. 472, 479b, 551, 1134, 3210, 6201-13; 30
U.S.C. 1740, 1761-1771.
0
2. The authority citation for subpart B continues to read as follows:
Authority: 16 U.S.C. 460l-6a, 460l-6d, 472, 497b, 497c, 551,
580d, 1134, 3210; 30 U.S.C. 185; 43 U.S.C. 1740, 1761-1772.
0
3. Amend Sec. 251.51 by revising the definitions of ``Hazard tree'',
``Minimum vegetation clearance distance'', ``Operating plan or
agreement for a powerline facility (hereinafter ``operating plan or
agreement'')'', ``Powerline facility'', and ``Vegetation management''
to read as follows:
Sec. 251.51 Definitions.
* * * * *
Hazard tree--for purposes of vegetation management for a powerline
facility, any tree, brush, shrub, other plant, or part thereof,
hereinafter ``vegetation'' (whether located on NFS lands inside or
outside the linear right-of-way for the powerline facility), that has
been designated, prior to failure, by a certified or licensed arborist,
qualified vegetation management specialist, or forester under the
supervision of the owner or operator to be:
(1) Dead; likely to die or fail before the next routine vegetation
management cycle; or in a position that, under geographical or
atmospheric conditions, could cause the vegetation to fall, sway, or
grow into the powerline facility before the next routine vegetation
management cycle; and
(2) Likely to cause substantial damage to the powerline facility;
disrupt powerline facility service; come within 10 feet of the
powerline facility; or come within the minimum vegetation clearance
distance as determined in accordance with applicable reliability and
safety standards and as identified in the special use authorization for
the powerline facility and the associated approved operating plan or
agreement.
* * * * *
Minimum vegetation clearance distance--the calculated distance
(stated in feet or meters) that is used to prevent flashover between
conductors and vegetation for various altitudes and operating voltages.
The MVCD is measured from a conductor's maximum operating sag to
vegetation on NFS lands within the linear right-of-way for a powerline
facility and on NFS lands adjacent to either side of the linear right-
of-way for a powerline facility for purposes of felling or pruning
hazard trees, which the owner or operator uses to determine whether
vegetation poses a system reliability hazard to the powerline facility.
* * * * *
Operating plan or agreement for a powerline facility (hereinafter
``operating plan or agreement'')--a plan or agreement prepared by the
owner or operator of a powerline facility, approved by the authorized
officer, and incorporated by reference into the corresponding special
use authorization that provides for long-term, cost-effective,
efficient, and timely inspection, operation, maintenance, and
vegetation management of the powerline facility on NFS lands within the
linear right-of-way for the powerline facility and on NFS lands
adjacent to either side of the linear right-of-way to fell or prune
hazard trees and to construct, reconstruct, and maintain access roads
and trails, to enhance electric reliability, promote public safety, and
avoid fire hazards.
* * * * *
Powerline facility. One or more electric distribution or
transmission lines authorized by a special use authorization, and all
appurtenances to those lines supporting conductors of one or more
electric circuits of any voltage for the transmission of electric
energy, overhead ground wires, and communications equipment that is
owned by the owner or operator; that solely supports operation and
maintenance of the electric distribution or transmission lines; and
that is not leased to other parties for communications uses that serve
other purposes.
* * * * *
Vegetation management. (1) Emergency vegetation management--
unplanned felling and pruning of vegetation on National Forest System
lands within the linear right-of-way for a powerline facility and
unplanned felling and pruning of hazard trees on abutting National
Forest System lands that have contacted or present an imminent danger
of contacting the powerline facility to avoid the disruption of
electric service or to eliminate an immediate fire or safety hazard.
(2) Non-emergency (routine) vegetation management--planned actions
as described in an operating plan or agreement periodically taken to
fell or prune vegetation on National Forest System lands within the
linear right-of-way for a powerline facility and on abutting National
Forest System lands to fell or prune hazard trees to
[[Page 7950]]
ensure normal powerline facility operations and to prevent wildfire in
accordance with applicable reliability and safety standards and as
identified in an approved operating plan or agreement.
0
4. Amend Sec. 251.56 by revising paragraphs (h)(2), (h)(3),
(h)(5)(viii), (h)(7), and (h)(10)(v) to read as follows:
Sec. 251.56 Terms and Conditions
* * * * *
(h) * * *
(2) Use of operating agreements. Powerline facilities that are not
subject to the mandatory reliability standards established by the
Electric Reliability Organization and/or that sold less than or equal
to 1,000,000 megawatt hours of electric energy for purposes other than
resale during each of the 3 calendar years immediately preceding March
23, 2018, may be subject to an agreement, instead of an operating plan.
Powerline facilities that are not subject to an agreement must be
subject to an operating plan.
(3) Existing operating plans and lack of an operating plan. The
authorized officer shall determine, in consultation with the owner or
operator of a powerline facility, whether the existing operating plan
for that powerline facility is consistent with paragraph (h) of this
section and shall notify the owner or operator of that determination.
Within 18 months of the date of notification that the existing
operating plan is inconsistent with paragraph (h) of this section, the
owner or operator shall modify the existing operating plan to be
consistent with paragraph (h) of this section or, if eligible, shall
prepare a proposed operating agreement and shall submit the proposed
modified operating plan or proposed operating agreement to the
authorized officer for review and approval. Existing operating plans
that are consistent with paragraph (h) of this section do not have to
be submitted for reapproval by the authorized officer. If an owner or
operator does not have an operating plan, within 18 months of the date
of notification from the authorized officer that a proposed operating
plan or agreement must be submitted, the owner or operator shall submit
to the authorized officer a proposed operating plan or agreement
consistent with paragraph (h) of this section for review and approval.
The authorized officer shall provide notification of the requirement to
submit a proposed modified operating plan or a proposed operating plan
or agreement no later than September 30, 2026. The authorized officer
has the discretion to determine the sequence of notification, based on
factors enumerated in implementing Forest Service directives.
* * * * *
(5) * * *
(viii) Include the following procedures with regard to whether
authorized officer approval is required for vegetation management:
(A) Routine vegetation management. Routine vegetation management
must have prior written approval from the authorized officer, unless
all 3 of the following conditions are met:
(1) The owner or operator has submitted a request for approval to
the authorized officer in accordance with the specified timeframe in
the approved operating plan or agreement;
(2) The proposed routine vegetation management is covered by
approval of a proposed operating plan or agreement or by subsequent
case-by-case environmental analysis and consultation; and
(3) The authorized officer has failed to respond to the request in
accordance with the specified timeframe in the approved operating plan
or agreement.
(B) Emergency vegetation management. Emergency vegetation
management does not require prior written approval from the authorized
officer. The owner or operator shall notify the authorized officer by
email of the location and type of emergency vegetation management as
soon as practicable, but no later than 24 hours after completion.
Within 30 days of completion, the owner or operator shall submit to the
authorized officer a written report detailing at a minimum the
location, type, and scope of emergency vegetation management conducted,
the reason it was conducted, the methods used to conduct it, and the
resulting benefit;
* * * * *
(7) Review and expiration of approved operating plans and
agreements. At least every 10 years from the approval date of an
operating plan or agreement, the owner or operator shall review and, as
necessary or appropriate, propose updates to the operating plan or
agreement to ensure consistency with changed conditions. Proposed
updates to an approved operating plan or agreement that are deemed
significant by the authorized officer shall be treated as proposed
modifications and shall be submitted by the owner or operator for
review and approval by the authorized officer in accordance with the
procedures described in paragraph (h)(6) of this section. Proposed
updates that are deemed non-significant by the authorized officer may
be made by written agreement of the owner or operator and the
authorized officer. Upon expiration of a special use authorization for
a powerline facility, the owner or operator shall prepare a new
proposed operating plan or agreement, either solely or in consultation
with the authorized officer, and shall submit it to the authorized
officer for review and approval in accordance with the procedures
described in paragraph (h)(6) of this section.
* * * * *
(10) * * *
(v) Seek to minimize the need for case-by-case approvals for
routine vegetation management (including hazard tree felling and
pruning), powerline facility inspection, and operation and maintenance
of powerline facilities; and
* * * * *
Dated: February 7, 2022.
Meryl Harrell,
Deputy Under Secretary, Natural Resources and Environment.
[FR Doc. 2022-02889 Filed 2-9-22; 11:15 am]
BILLING CODE 3411-15-P
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