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, 47442-47453 [2023-15453]
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Federal Register / Vol. 88, No. 140 / Monday, July 24, 2023 / Proposed Rules
In consideration of the foregoing,
FMCSA proposes to amend 49 CFR
chapter III, part 385, as set forth below:
PART 385—SAFETY FITNESS
PROCEDURES
1. The authority citation for part 385
continues to read as follows:
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Authority: 49 U.S.C. 113, 504, 521(b),
5105(d), 5109, 5113, 13901–13905, 13908,
31135, 31136, 31144, 31148, 31151, 31502;
sec. 113(a), Pub. L. 103–311, 108 Stat. 1673,
1676; sec. 408, Pub. L. 104–88, 109 Stat. 803,
958; sec. 350, Pub. L. 107–87, 115 Stat. 833,
864; sec. 5205, Pub. L. 114–94, 129 Stat.
1312, 1537; and 49 CFR 1.87.
2. Amend § 385.4 by revising
paragraph (b)(1) to read as follows:
■
§ 385.4
Matter incorporated by reference.
*
*
*
*
*
(b) * * *
(1) ‘‘North American Standard Out-ofService Criteria and Level VI Inspection
Procedures and Out-of-Service Criteria
for Commercial Highway Vehicles
Transporting Transuranics and Highway
Route Controlled Quantities of
Radioactive Materials as defined in 49
CFR part 173.403,’’ April 1, 2023,
incorporation by reference approved for
§ 385.415(b).
*
*
*
*
*
Issued under authority delegated in 49 CFR
1.87.
Robin Hutcheson,
Administrator.
[FR Doc. 2023–15412 Filed 7–21–23; 8:45 am]
BILLING CODE 4910–EX–P
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 ServiceAdministered Lands
Fish and Wildlife Service,
Interior.
ACTION: Proposed rule; revisions and
reopening of the comment period.
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AGENCY:
We, the U.S. Fish and
Wildlife Service (Service), are revising
our proposed rule that would streamline
our process for permitting of rights-ofway across National Wildlife Refuge
System lands and other Service-
SUMMARY:
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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 Info_Coll@fws.gov
(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
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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 wildernessdesignation 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
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Federal Register / Vol. 88, No. 140 / Monday, July 24, 2023 / Proposed Rules
demonstrated to be necessary to meet
minimum requirements for the
administration of the area for
Wilderness Act purposes.
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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 wildlifedependent 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
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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-ofway 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-ofway, 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
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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 rightsof-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-ofway 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
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Federal Register / Vol. 88, No. 140 / Monday, July 24, 2023 / Proposed Rules
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 landsurvey 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
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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.
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Our Response: This proposed rule has
no impact on prior existing highway
rights-of-way held by State and local
units of government on FWSadministered 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-ofway 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
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closely with those of other DOI bureaus.
Under § 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 § 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 § 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 § 29.21–6 to clarify our costrecovery procedures for application
processing and monitoring of rights-ofway. Under proposed § 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 § 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
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deposited into the United States
Treasury until such time that any
provision of law allows these payments
to supplement the Service’s
appropriation.
Under § 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 § 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 § 29.21–8(f), we
added terms and conditions for rightsof-way for communications facilities to
implement the Mobile Now Act (47
U.S.C. 1455(d)(1)).
Under § 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
§ 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 § 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,
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47445
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 rightof-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
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.
2. Amend § 29.21 by:
a. Revising the section heading;
b. Adding introductory text;
c. Adding the definitions for
‘‘ANILCA’’ and ‘‘National Fish Hatchery
System land’’ in alphabetical order;
■ d. Revising the definitions for
‘‘National Wildlife Refuge System land’’
and ‘‘Other lands’’; and
■ e. Adding the definitions for
‘‘Regional Director’’ and ‘‘Right-of-way’’
in alphabetical order.
The revisions and additions read as
follows:
■
■
■
■
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§ 29.21
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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.
■ 3. Revise § 29.21–1 to read as follows:
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§ 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.
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Applications for all forms of rights-ofway 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 § 29.21–4. The Service will not
permit a right-of-way unless it meets the
compatibility-determination
requirement described in § 29.21–3. See
§ 29.21–12 for additional requirements
applicable to rights-of-way for electric
power transmission lines and § 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 rightsof-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 § 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-ofway that may affect a property interest
acquired by the United States. If the
requested right-of-way or regular
maintenance of the requested right-ofway may affect the United States’
interest, then an application for a rightof-way permit must be submitted in
accordance with procedures set forth in
§ 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-ofway 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
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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
§ 29.21–12 for additional requirements
applicable to rights-of-way for electric
power transmission lines and § 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 § 29.21–4, except
that the compatibility-determination
requirement in § 29.21–3 does not apply
to lands outside the National Wildlife
Refuge System and National Fish
Hatchery System.
■ 4. Revise § 29.21–2 to read as follows:
§ 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 § 29.21–6(a)(2)).
■ 5. Redesignate §§ 29.21–3 through
29.21–9 as §§ 29.21–7 through 29.21–13,
respectively, and add new §§ 29.21–3
through 29.21–6, to read as follows:
§ 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 § 26.41 of
this chapter, the Service will not permit
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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-ofway), 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
§ 26.41(c) of this chapter apply to any
requested maintenance of or
modifications to an existing right-ofway. No compatibility determination is
necessary to permit or renew a right-ofway across lands outside of the National
Wildlife Refuge System and the
National Fish Hatchery System.
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§ 29.21–4
Application procedures.
(a) Preapplication meeting. To request
the preapplication meeting required by
§ 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-ofway, modifications of existing rights-ofway, and renewals of existing rights-ofway. 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 § 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-ofway and a detailed view of the proposed
project area in relationship to the
Service boundary. If the proposed rightof-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 § 29.21–5 for
requirements regarding a survey plat
and legal description of the area.
(2) Environmental analysis. The
environmental analysis supplements the
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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-ofway 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 § 29.21–5 for requirements.
(2) Preliminary site and facility
construction plans. These plans are
required for applications for rights-ofway or renewals of rights-of-way where
construction is required. They must
show all proposed construction work
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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 rightof-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 (Efile) 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 rightof-way is located. Addresses for the
Service Regional Offices are provided at
50 CFR 2.2. Mailing envelopes should
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be clearly marked ‘‘Attn: NWRS Realty
Right-of-Way Permit Processing.’’
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§ 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-ofway 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.
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(xi) Letter-sized plats are preferred,
but larger format plats, such as the rightof-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.’’
§ 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
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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 § 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 rightof-way contributes to the Service’s
operation or maintenance of the refuge
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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-ofway 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.
■ 6. Revise newly redesignated § 29.21–
7 to read as follows:
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§ 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.
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(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.
■ 7. Revise newly redesignated § 29.21–
8 to read as follows:
§ 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 § 29.21–12
for specific requirements for electric
powerlines and § 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 rightof-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,
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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-ofway 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.
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(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
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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 prepermit 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
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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.
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(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 rightof-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
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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-ofway 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/
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47451
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.
§ 29.21–9
[Amended]
8. Amend newly redesignated
§ 29.21–9, in paragraph (a), by removing
the words ‘‘at his discretion’’.
■ 9. Amend newly redesignated
§ 29.21–10 by revising the section
heading and paragraphs (b) and (c) to
read as follows:
■
§ 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.
■ 10. Revise newly redesignated
§ 29.21–11 to read as follows:
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§ 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
§ 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 § 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
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Wildlife Refuge Fund, to make
payments annually to counties and
other units of local government in
accordance with regulations in 50 CFR
part 34.
§ 29.21–12
[Amended]
11. Amend newly redesignated
§ 29.21–12:
■ a. In the introductory text, by
removing the citation ‘‘§ 29.21–4(b)’’
and adding in its place the citation
‘‘§ 29.21–8’’;
■ b. In paragraph (a), by removing the
word ‘‘his’’ both times that it appears
and adding in its place the word ‘‘the’’;
and
■ c. In paragraph (b), by removing the
word ‘‘him’’ both times that it appears
and adding in its place the words ‘‘the
applicant’’.
■ 12. Revise newly redesignated
§ 29.21–13 to read as follows:
■
§ 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 § 29.21–4 with
the following exception: When the rightof-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
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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 § 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 § 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 § 29.21–6, the holder of
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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
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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-
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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-ofway 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
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Parts 224 and 226
[Docket No. 230711–0164]
RIN 0648–BL86
Endangered and Threatened Species;
Designation of Critical Habitat for the
Rice’s Whale
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Proposed rule; request for
comments and notice of public hearing.
AGENCY:
We, NMFS, propose to
designate critical habitat for the Rice’s
whale (Balaenoptera ricei) by
designating waters from the 100 meter
(m) isobath to the 400 m isobath in the
Gulf of Mexico (GOMx), pursuant to
section 4 of the Endangered Species Act
(ESA). We have considered economic,
national security, and other relevant
impacts of the proposed designation.
We are not excluding any particular area
from the critical habitat designation. We
seek comments on all aspects of the
proposed critical habitat designation
and will consider information received
before issuing a final designation.
DATES:
Comments due: Written comments
and information must be received by
September 22, 2023.
SUMMARY:
E:\FR\FM\24JYP1.SGM
24JYP1
Agencies
[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]
=======================================================================
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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