[Federal Register Volume 86, Number 11 (Tuesday, January 19, 2021)]
[Proposed Rules]
[Pages 5120-5129]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-00704]
-----------------------------------------------------------------------
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
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: We, the U.S. Fish and Wildlife Service (FWS), propose to
revise and streamline FWS regulations for permitting of rights-of-way
by aligning FWS processes more closely with those of other Department
of the Interior bureaus, consistent with applicable law and to the
extent practicable. The proposed rule would require a pre-application
meeting and use of a standard application, the SF-299, Application for
Transportation and Utility Systems and Facilities on Federal Lands;
allow electronic submission of applications; and provide FWS with
additional flexibility, as appropriate, to determine the fair market
value or fair market rental value of rights-of-way across FWS-managed
lands. This proposed rule would reduce the time and cost necessary to
determine a right-of-way's fair market value or fair market rental
value, and also reduce an applicant's time and cost to obtain a right-
of-way permit. The proposed rule would also simplify the procedures
that applicants must follow to reimburse the United States for costs
that FWS incurs while processing right-of-way applications and
monitoring permitted rights-of-way.
DATES: We will accept comments on this proposed rule that are received
or postmarked on or before March 22, 2021. Comments submitted
electronically using the Federal eRulemaking Portal (see ADDRESSES,
below) must be received by 11:59 p.m. Eastern Time on the closing date.
ADDRESSES: You may submit comments on this proposed rule by one of the
following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter FWS-HQ-NWRS-2019-0017,
which is the docket number for this rulemaking. Then, click on the
Search button. On the resulting page, in the Search panel on the left
side of the screen, under the Document Type heading, click on the
Proposed Rule box to locate this document. You may submit a comment by
clicking on ``Comment Now!''
(2) By hard copy: Submit by U.S. mail or hand-delivery to: Public
Comments Processing, Attn: Docket No. FWS-HQ-NWRS-2019-0017, U.S. Fish
and Wildlife Service, MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA
22041-3803.
We request that you send comments only by the methods described
above. We will post all comments on http://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see Public Comments, below, for more information).
FOR FURTHER INFORMATION CONTACT: Ken Fowler, U.S. Fish and Wildlife
Service, MS: NWRS, 5275 Leesburg Pike, Falls Church, VA 22041; (703)
358-1876.
SUPPLEMENTARY INFORMATION:
Public Comments
We request comments or information from other concerned government
agencies, the scientific community, industry, or any other interested
party concerning this proposed rule. You may submit your comments and
materials concerning this proposed rule by one of the methods listed in
ADDRESSES. We request that you send comments only by the methods
described in ADDRESSES.
All comments submitted electronically via http://www.regulations.gov will be presented on the website in their entirety
as submitted. For comments submitted via hard copy, we will post your
entire comment--including your personal identifying information--on
http://www.regulations.gov. You may request at the top of your document
that we withhold personal information such as your street address,
phone number, or email address from public review; however, we cannot
guarantee that we will be able to do so.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on http://www.regulations.gov.
Background
FWS is the principal land manager and permitting authority for more
than 89 million terrestrial acres of public lands, including 76.8
million acres in Alaska, 12.2 million acres in the lower 48 States, and
50,000 acres in Hawaii. The vast majority of the 89 million acres are
part of the National Wildlife Refuge System (Refuge System), whose
mission 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)). These acres include more than 20
million acres of designated wilderness that the Service manages to
preserve the 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 wilderness-designation statutes, 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 demonstrated to be necessary to meet minimum
[[Page 5121]]
requirements for the administration of the area for Wilderness Act
purposes.
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), which authorize FWS to permit a new use on a
refuge when FWS 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
FWS 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.
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 or not compatible with the Refuge System mission
or the purpose(s) of the refuge. Currently there are over 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 FWS 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 at 50 CFR 26.41.
The Improvement Act authorizes FWS to grant a right-of-way when the
right-of-way is a compatible use. The regulations at 50 CFR 26.41 state
that, for existing rights-of-way, FWS 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 National Wildlife 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 instances where an existing use is authorized for more than 10
years (such as an electric utility right-of-way), the Improvement Act
directs FWS to reevaluate the permitted use to determine compliance
with the authorization terms and conditions. All right-of-way permits
issued by FWS include language allowing FWS to terminate the right-of-
way permit if the grantee's use violates the permit terms and
conditions.
The Improvement Act's compatibility requirements do not apply to
FWS permitting of rights-of-way across National Fish Hatchery System
lands, nor do they apply to permitting of rights-of-way on or across
FWS facilities that are not located on Refuge System lands. FWS
processes applications for these rights-of-way under the applicable
authority cited at 43 CFR part 2800, in accordance with the application
procedures at 50 CFR 29.21-2.
Title XI of the Alaska National Interest Lands Conservation Act
(ANILCA; Pub. L. 96-487; 16 U.S.C. 3101 et seq.) requires the Secretary
to provide adequate and feasible access to inholdings within Alaska
refuges. The proposed access is subject to a prescribed evaluation
process that ensures that the route or method of access avoids or
minimizes threats to public health and safety while providing adequate
and feasible access to the inholding (see 43 CFR 36.10).
The Administration Act authorizes the Secretary, acting through the
FWS Director, to issue a right-of-way permit across Refuge System lands
only after the applicant pays FWS 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. In addition, before
issuing a right-of-way permit, FWS 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.
This Proposed Rule
Consistent with Executive Order (E.O.) 13783, ``Promoting Energy
Independence and Economic Growth,'' dated March 28, 2017, and E.O.
13821, ``Streamlining and Expediting Requests to Locate Broadband
Facilities in Rural America,'' dated January 8, 2018, FWS is
streamlining its right-of-way permitting process for proposed uses on
FWS-managed lands by aligning FWS processes more closely with those of
other DOI bureaus, to the extent practicable and in a manner that is
consistent with applicable law. Below, we summarize the substantive
proposals included in this document.
The regulations at 50 CFR 29.21-2 currently state that applicants
may submit applications for right-of-way permits in any format.
However, E.O. 13821 directs Federal agencies to use the ``GSA Common
Form Application,'' which refers to the Standard Form 299 (SF-299),
Application for Transportation and Utility Systems and Facilities on
Federal Lands. Therefore, we propose to revise 50 CFR 29.21-2 to
require use of the SF-299 for all requests for right-of-way permits.
The regulations at 50 CFR 29.21-2 currently require applicants to
submit applications to a FWS Regional office in hard copy, in
triplicate. FWS proposes to require only one copy. Also, we propose to
allow electronic application submissions, or E-Filing, as an
alternative to hardcopy submissions. Improvements in technology enable
FWS to process electronic application submissions more efficiently than
hardcopy submissions, and accepting electronic submissions may reduce
the amount of time FWS requires to issue a right-of-way permit.
Incomplete information is often the reason right-of-way application
processing is delayed. The amount and type of documentation FWS
requires to process an application varies depending on whether the
request is for a renewal, limited additional use of an existing right-
of-way with minimal or no new environmental impacts, or a new right-of-
way where significant environmental disturbance may occur. We,
therefore, propose to modify the right-of-way application procedures at
50 CFR 29.21-2 to require a standard, no-cost pre-application meeting
(in-person or teleconference) for all new proposed rights-of-way and
all modifications and renewals of existing rights-of-way, which will
enable FWS to determine the documentation needed to process the
application. We also propose to revise the application procedures at 50
CFR 29.21-2 to provide the FWS Regional Director more flexibility in
determining the documentation required to process an application, and
to reduce the documentation requirements for renewals. This change
would reduce the regulatory burden on applicants by ensuring that FWS
requests only the documentation that it requires to process each
application.
We propose to eliminate the requirement at 50 CFR 29.21-7 for an
appraisal to determine fair market value or fair market rental value,
to reduce the amount of time FWS requires to issue right-of-way
permits, by authorizing all Regional Directors to use any DOI-approved
method to determine these values, including the use of fee
[[Page 5122]]
schedules. This change would reduce the time and cost necessary to
determine the fair market value or fair market rental value of many
rights-of-way, and, therefore, reduce an applicant's time and cost to
obtain a right-of-way permit.
FWS cannot issue a right-of-way permit unless it can accurately
locate the requested right-of-way. Aside from the time required to
obtain appraisals, a missing or inadequately prepared legal description
or survey plat, which FWS uses to accurately locate the requested
right-of-way, is the most common cause of FWS delays in issuing a
right-of-way permit. Therefore, we propose to clarify the requirements
for the legal description and survey plat that applicants must provide
with or after application submission but before FWS will issue a right-
of-way permit.
FWS last updated the schedule of application fees and monitoring
fees at 50 CFR 29.21-2 in 1977. FWS's cost to process applications
routinely exceeds the 1977 fee amounts by a factor of five times or
more. Currently, 50 CFR 29.21-2 requires applicants to pay a right-of-
way application fee and then make periodic additional payments--beyond
the initial application fee--to FWS for all additional application
processing costs in advance of FWS incurring those costs. We propose to
eliminate our application fee and require applicants to reimburse FWS
for the costs it incurs while evaluating and processing right-of-way
applications and monitoring permitted rights-of-way, and to waive
reimbursement of these costs for all applications for rights-of-way
from (a) State or local governments or agencies or instrumentalities
thereof and (b) Federal Government agencies, as well as for (c) private
individuals or organizations when a Regional Director has certified
that the right-of-way will contribute to accomplishing the mission of
the Refuge System, refuge purposes of the refuge the right-of-way will
cross, or fish hatchery purposes of the fish hatchery the right-of-way
will cross.
In this proposed rule, provisions for cost recovery associated with
our application processing, and with our monitoring, are set forth in a
separate section of the regulations. In addition, we are proposing to
increase the charge for processing the transfer of a permit from $25 to
$100. Finally, we are proposing to increase the amount of no-fault
liability for injury and damage to the land and property of the United
States from $1,000,000 to $5,000,000 to account for inflation and
increased liability measures.
For clarity, we propose to establish separate sections in the
regulations to set forth the requirements for pre-application meetings
and our compatibility determinations.
In addition, we propose to make editorial changes for clarity and
consistency in the regulations, such as removing the word ``easement''
where we simply mean ``permit,'' removing out-of-date and gender-
specific references, updating and adding definitions for terms used in
the regulations, and updating the amount of the FWS permit transfer fee
and the maximum amount of no-fault liability for certain permits to
account for the inflation since 1977.
The proposed changes to the right-of-way regulations are at the end
of this document. While the proposed revisions to some sections are
mostly minor updates as just described, we have set forth the sections
in their entirety for the ease and convenience of the reader.
Required Determinations
Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) will review all significant rules. The Office
of Information and Regulatory Affairs has waived their review regarding
their significance determination of this proposed rule.
Executive Order (E.O.) 13563 reaffirms the principles of E.O. 12866
while calling for improvements in the nation's regulatory system to
promote predictability, to reduce uncertainty, and to use the best,
most innovative, and least burdensome tools for achieving regulatory
ends. The executive order directs agencies to consider regulatory
approaches that reduce burdens and maintain flexibility and freedom of
choice for the public where these approaches are relevant, feasible,
and consistent with regulatory objectives. E.O. 13563 emphasizes
further that regulations must be based on the best available science
and that the rulemaking process must allow for public participation and
an open exchange of ideas. We have developed this proposed rule in a
manner consistent with these requirements.
Executive Order 13771
We do not believe this proposed rule is an E.O. 13771 (``Reducing
Regulation and Controlling Regulatory Costs'') (82 FR 9339, February 3,
2017) regulatory action because we believe this rule is not significant
under E.O. 12866; however, the Office of Information and Regulatory
Affairs has waived their review regarding their E.O. 12866 significance
determination of this proposed rule.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.)
generally requires that Federal agencies prepare a regulatory
flexibility analysis for rules subject to the notice-and-comment
rulemaking requirements under the Administrative Procedure Act (5
U.S.C. 500 et seq.), if the rule would have a significant economic
impact, whether detrimental or beneficial, on a substantial number of
small entities. See 5 U.S.C. 601-612. Congress enacted the RFA to
ensure that government regulations do not unnecessarily or
disproportionately burden small entities. Small entities include small
businesses, small governmental jurisdictions, and small not-for-profit
enterprises.
FWS reviewed the Small Business Size standards for the affected
industries. We determined that a large share of the entities in the
affected industries are small businesses as defined by the Small
Business Act. However, FWS believes that the impact on the small
entities is not significant, as the proposed rule would impact a small
number of small entities, and FWS does not believe that these effects
would be economically significant.
The proposed rule would benefit small businesses by streamlining
FWS regulations for permitting rights-of-way and thereby reduce the
amount of time that FWS requires to issue many right-of-way permits.
The proposed rule would implement a pre-application meeting to provide
small businesses with information upfront about the FWS's estimated
time and cost to evaluate and process a right-of-way application,
increasing regulatory certainty. Additionally, the proposed rule would
eliminate the FWS application fee and provide FWS the flexibility to
request only the documents that it requires to process a right-of-way
application, thereby reducing the regulatory burden.
In summary, we have considered whether this proposed rule would
result in a significant economic impact on a substantial number of
small entities. We certify that, if made final, this proposed rule
would not have a significant economic impact on a substantial number of
small business entities. Therefore, an initial regulatory flexibility
analysis is not required.
[[Page 5123]]
Energy Supply, Distribution, or Use--Executive Order 13211
Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use) requires
agencies to prepare Statements of Energy Effects when undertaking
certain actions. This proposed rule would streamline and expedite FWS
processing of industry requests for rights-of-way and modifications to
rights-of-way that cross FWS-managed lands, but it would not
significantly affect energy supplies, distribution, or use. Therefore,
this action is not a significant energy action, and no Statement of
Energy Effects is required.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
Under the Unfunded Mandates Reform Act (2 U.S.C. 1501, et seq.):
a. This proposed rule would not significantly or uniquely affect
small governments. A Small Government Agency Plan is not required.
b. This proposed rule would not produce a Federal requirement of
$100 million or greater in any year and is not a ``significant
regulatory action'' under the Unfunded Mandates Reform Act.
Takings--Executive Order 12630
Under Executive Order 12630, this proposed rule would not have
significant takings implications as it applies only to FWS permitting
of rights-of-way across lands, and interests in land, owned by the
United States. A takings implication assessment is not required.
Federalism--Executive Order 13132
In accordance with E.O. 13132 (Federalism), this proposed rule does
not have significant Federalism effects, as it waives right-of-way
application processing costs and right-of-way monitoring costs for
State or local governments when the right-of-way is for governmental
purposes that benefit the general public, and all other application
requirements are necessary for FWS to meet Improvement Act and NEPA
requirements. A federalism summary impact statement is not required.
Civil Justice Reform--Executive Order 12988
In accordance with E.O. 12988 (Civil Justice Reform), the Office of
the Solicitor has determined that the rule does not unduly burden the
judicial system and that it meets the requirements of sections 3(a) and
3(b)(2) of the Order.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This rule does not contain any new collections of information that
require approval by the Office of Management and Budget (OMB) under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). OMB has
previously approved the information collection requirements associated
with FWS use of Common Form SF-299 and assigned OMB Control Number
0596-0249 (expires 02/28/2023). You may view the information collection
request(s) at http://www.reginfo.gov/public/do/PRAMain. An agency may
not conduct or sponsor, and a person is not required to respond to, a
collection of information unless it displays a currently valid OMB
control number.
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994
(Government-to-Government Relations with Native American Tribal
Governments; 59 FR 22951), Executive Order 13175 (Consultation and
Coordination With Indian Tribal Governments), and the Department of the
Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. In accordance with
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act),
we readily acknowledge our responsibilities to work directly with
tribes in developing programs for healthy ecosystems, to acknowledge
that tribal lands are not subject to the same controls as Federal
public lands, to remain sensitive to Indian culture, and to make
information available to tribes.
This proposed rule has no impact on Tribal lands, as it applies
only to FWS permitting of rights-of-way across lands, and interests in
land, owned by the United States.
Clarity of the Rule
We are required by Executive Orders 12866 and 12988 and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in ADDRESSES. To better help us
revise the rule, your comments should be as specific as possible. For
example, you should tell us the numbers of the sections or paragraphs
that are not clearly written, which sections or sentences are too long,
the sections where you feel lists or tables would be useful, etc.
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 propose to amend part 29,
subchapter C of chapter I, title 50 of the Code of Federal Regulations,
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 revising the definition of ``National Wildlife
Refuge System land'' and by adding a definition of ``Right-of-way'', in
alphabetical order, to read as follows:
Sec. 29.21 What do these terms mean?
* * * * *
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.
* * * * *
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 (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. Amend Sec. 29.21-1 by revising paragraphs (a) through (c) to read
as follows:
[[Page 5124]]
Sec. 29.21-1 Purpose and scope.
* * * * *
(a) National Wildlife Refuge System lands. Applications for all
forms of rights-of-way on or over such lands shall be submitted under
authority of Public Law 89-669, (80 Stat. 926; 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
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 therefrom.
(b) National Wildlife Refuge System lands--less than fee interest.
Applications for all forms of rights-of-way across lands in which the
United States owns only a less than fee interest may be submitted to
the Regional Director in letter form. No map exhibit is required;
however, the affected land should be described in the letter or shown
on a map sketch. If the requested right-of-way will not adversely
affect the United States' interest, the Regional Director may issue a
letter to the applicant stating that the proposed right-of-way would
not affect the interest of the United States and the U.S. Fish and
Wildlife Service has no objection to the fee owner granting the
proposed right-of-way. If the interest of the United States will be
affected, application for the right-of-way must be submitted in
accordance with procedures set out in Sec. 29.21-4.
(c) Other lands outside the National Wildlife Refuge System.
Rights-of-way on or over other lands will be granted 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 therefrom. Applications must be submitted in
accordance with procedures set out in Sec. 29.21-4.
0
4. Revise Sec. 29.21-2 to read as follows:
Sec. 29.21-2 Pre-application meeting.
Before submitting an application for a new right-of-way or a
modification of an existing right-of-way across U.S. Fish and Wildlife
Service-managed lands, an applicant must contact the Regional Director
or his or her designee to schedule a pre-application meeting. The
required pre-application meeting (e.g., in-person, web-conference,
teleconference, etc.) provides the applicant the opportunity to ask
questions about the application process and obtain comments from the
Regional Director or his or her designee about a proposed right-of-way
and its location before submitting an application. The pre-application
meeting helps the Regional Director or his or her designee to
understand the scope of the request so that he or she may advise the
applicant of the documentation the Service requires to process the
application, and provide the applicant an estimated timeline and
estimated cost for the Service to review and process the application.
There is no fee for this required pre-application meeting. Contact
information for scheduling pre-application meetings is set forth at
Sec. 29.21-4(c).
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.
* * * * *
Sec. 29.21-3 Compatibility determination requirement.
Sec. 29.21-4 Application procedures.
Sec. 29.21-5 Survey plat and legal description.
Sec. 29.21-6 Reimbursement of costs.
* * * * *
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, the U.S. Fish and Wildlife Service will not permit or
renew a right-of-way if the Service determines that the use is not
compatible with the Refuge System mission or the purpose(s) of the
refuge, except for uses related to the access of privately owned
minerals and as required by any other provision of law, such as section
1110(b) of the Alaska National Interest Lands Conservation Act (16
U.S.C. 3101 et seq.) for inholdings within Alaska refuges. 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,
during the permit term, consider the permitted use to be compatible so
long as the grantee is in compliance with all permit terms and
conditions.
Sec. 29.21-4 Application procedures.
(a) 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 (a)(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 (b) 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) Other attachments. Following the pre-application meeting
described in Sec. 29.21-2, the Regional Director or his or her
designee will determine any additional documentation the Service
requires to process the application, such as:
(i) Preliminary site and facility construction plans. These plans
must show all proposed construction work in detail. No site or facility
construction plan is required for applications for renewals of existing
rights-of-way that involve no changes to the permitted use.
(ii) Environmental analysis. The environmental analysis supplements
the basic environmental information on the SF-299. It 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.
(A) 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
[[Page 5125]]
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, the Regional
Director may, at his or her discretion, rely on an environmental
assessment or environmental impact statement prepared by another
Federal agency, the applicant, or their contractor; however, in all
cases, this documentation must be prepared in consultation with the
Regional Director or his or her designee.
(B) For applications for renewals of existing rights-of-way that
involve no changes to the permitted use, the environmental analysis
need address only the impacts 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.
(iii) Vegetation management plan. The vegetation management plan
must describe how the applicant would conduct the following activities:
(A) Vegetation clearing that may occur as part of construction and
maintenance;
(B) Routine vegetation management, including all physical and
mechanical methods;
(C) Any pesticides, herbicides, or other chemicals proposed for
use; and
(D) Any revegetation and restoration activities.
(b) Submission instructions. Applicants may submit applications for
rights-of-way through E-File or certified mail.
(1) E-file. Application submissions through E-file must include a
digital copy of the SF-299, the map, and other attachments required by
the Regional Director or his or her designee after the required pre-
application meeting. Additional instructions will be provided at the
pre-application meeting.
(2) Certified mail. Application submissions through certified mail
must include one printed copy of the SF-299, the map, and other
attachments required by the Regional Director or his or her designee
after the required pre-application meeting. Applicants must send all
documents by certified mail to the Regional Director for the region
where the proposed right-of-way is located. Mailing envelopes should be
clearly marked ``Attn: NWRS Realty Right-of-Way Permit Processing.''
(c) Pre-application meeting. To request a pre-application meeting,
contact the Division of Realty at Service headquarters at (703) 358-
1713. That division will put you in touch with the appropriate Service
office, as determined by the location of the proposed right-of-way.
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.
(b) Survey plats and legal descriptions of the right-of-way area
must be stamped and signed by a 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 is being impacted, or from
which those boundaries are calculated. In cases such as road
construction that involve granting 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
project 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 as long as 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 Adobe Acrobat
document.
(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) An
applicant for a right-of-way permit must reimburse the United States
for the costs the U.S. Fish and Wildlife Service incurs in evaluating
and processing the application before the Service will issue a right-
of-way permit. 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.); obtain an
appraisal; draft correspondence; and draft the permit.
(2) If requested by the applicant during or after the required pre-
application meeting, the Regional Director or his or her designee will,
within ten business days of the pre-application meeting, provide the
applicant a preliminary estimate of the Service's application
evaluation and processing costs using the information provided by the
applicant during the pre-application meeting.
(3) After receiving an application, the Regional Director or his or
her designee will estimate the Service's application evaluation and
processing costs using the information the applicant provided in the
application and during the required pre-application meeting.
[[Page 5126]]
(4) 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 or his
or her designee 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. Any overpayments
may be refunded by the Regional Director as he or she deems
appropriate.
(b) Monitoring activities. (1) By accepting a permit under this
subpart, the holder agrees to reimburse the Service for the costs it
incurs in monitoring the construction, operation, maintenance, and
termination of facilities to ensure compliance with the terms,
conditions, and stipulations of the right-of-way permit, referred to in
this paragraph as ``monitoring activities.''
(2) The Regional Director or his or her designee will estimate the
total costs the Service expects to incur for monitoring activities over
the first 5 years of the permit term or the entire permit term,
whichever is less. The applicant must pay the estimated amount before
the Service will issue a right-of-way permit.
(3) The permit holder must make an additional payment every 5
years, or for the remainder of the permit term, whichever is less, to
reimburse the Service for the costs the Service expects to incur for
monitoring activities during that period.
(4) If the Service's cost of monitoring activities exceeds the
Service's estimated amount, then the permit holder must submit payment
to the United States for the deficient amount at the end of the 5 years
or the remainder of the permit term, whichever is less. Any
overpayments may be refunded by the Regional Director as he or she
deems appropriate.
(c) Waiver of reimbursement for Service costs. (1) Except as
provided under paragraph (c)(2) of this section, 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 instrumentalities
thereof;
(ii) Federal Government agencies; or
(iii) Private individuals or organizations when a Regional Director
has signed a statement certifying that the proposed right-of-way
contributes to accomplishing refuge or fish hatchery purposes.
(2) Reimbursement of costs is required 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.).
0
6. Amend newly redesignated Sec. 29.21-7 by revising paragraph (a) to
read as follows:
Sec. 29.21-7 Nature of interest granted.
(a) Where the land administered by the U.S. Fish and Wildlife
Service is owned in fee by the United States and the right-of-way is
compatible with the objectives of the area, a permit may be approved
and granted by the Regional Director. Generally, a permit will be
issued for a term of up to 50 years, or so long as it is used for the
purpose granted, or for a lesser term when considered appropriate.
(1) For rights-of-way granted 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 therefrom, the permit
may be for a term not to exceed 30 years.
(2) For a right-of-way issued per paragraph (a)(1) of this section,
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, that,
in his or her judgment, a wider right-of-way is necessary for operation
and maintenance after construction or 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, terminals, etc.
(3) A temporary permit supplementing a right-of-way may be granted
for additional land needed during construction, operation, maintenance,
or termination of the pipeline, or to protect the natural environment
or public safety.
* * * * *
0
7. Revise newly redesignated Sec. 29.21-8 to read as follows:
Sec. 29.21-8 Terms and conditions.
(a) Any right-of-way permit granted will be subject to rights
reserved, if any, by a prior owner, and rights held, if any, by a third
party.
(b) An applicant, by accepting a permit, agrees to such terms and
conditions as may be prescribed by the Regional Director in the
granting document, including special stipulations at his or her
discretion. (See Sec. 29.21-12 for special requirements for electric
powerlines and Sec. 29.21-13 for special requirements for oil and gas
pipelines.) The applicant shall agree to the following terms and
conditions, unless waived in all or part by the Regional Director:
(1) To comply with State and Federal laws applicable to the project
within which the permit is granted, and to the lands that are included
in the right-of-way, and lawful existing regulations thereunder.
(2) To clear and keep clear the lands within the permit area to the
extent and in the manner directed by the 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 in such a manner as to decrease the fire hazard and also in
accordance with such instructions as the project manager may specify.
(3) To prevent the disturbance or removal of any public land survey
monument or project boundary monument unless and until the applicant
has requested and received from the Regional Director approval of
measures the applicant will take to perpetuate the location of
aforesaid monument.
(4) To take such soil and resource conservation and protection
measures, including weed control, on the land covered by the permit as
the project manager in charge may request.
(5) To do everything reasonably within his or her power, both
independently and on request of any duly authorized representative of
the United States, to prevent and suppress fires on or near lands to be
occupied under the permit area, including making available such
construction and maintenance forces as may be reasonably obtainable for
the suppression of such fires.
(6) To rebuild and repair such roads, fences, structures, and
trails as may be destroyed or injured by construction work and, upon
request by the Regional Director, to 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.
(7) To pay the United States the full value for all damages to the
lands or other property of the United States caused by him or her or by
his or her employees, contractors, or agents of the contractors, and to
indemnify the United States against any liability for damages to life,
person, or property arising from the occupancy or use of the lands
under the permit.
[[Page 5127]]
(i) Where the permit is granted hereunder to a State or other
governmental agency that has no legal power to assume such a liability
with respect to damages caused by it to lands or property, such agency
in lieu thereof agrees to repair all such damages.
(ii) Where the permit involves lands that are under the exclusive
jurisdiction of the United States, the holder or his or her employees,
contractors, or agents of the contractors, shall be liable to third
parties for injuries incurred in connection with the permit area.
(iii) Grants of permits involving special hazards will impose
liability without fault for injury and damage to the land and property
of the United States up to a specified maximum limit commensurate with
the foreseeable risks or hazards presented. The amount of no-fault
liability for each occurrence is hereby limited to no more than
$5,000,000.
(8) To notify promptly the 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 as the
project manager may determine to be the full stumpage value of the
timber to be so cut, removed, or destroyed.
(9) That all or any part of the permit granted may be terminated by
the Regional Director, for failure 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 holder to use, for any continuous 2-year period, the
permit for the purpose for which it was granted or renewed. In the
event of noncompliance or abandonment, the Regional Director will
notify in writing the holder of the permit of his or her intention to
suspend or terminate such permit 60 days from the date of the notice,
stating the reasons therefor, unless prior to that time the holder
completes such corrective actions as are specified in the notice. The
Regional Director may grant an extension of time within which to
complete corrective actions when, in his or her judgment, extenuating
circumstances not within the holder's control, such as adverse weather
conditions, disturbance to wildlife during breeding periods or periods
of peak concentration, or other compelling reasons, warrant.
(ii) Should the holder of a right-of-way 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 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 shall be required where the
permit terminates under its terms.
(10) To restore the land to the condition it was in prior to
issuance of the permit, so far as it is reasonably possible to do so
upon revocation and/or termination of the permit, unless this
requirement is waived in writing by the Regional Director.
(11) To keep the project manager informed at all times of his or
her address, and, in case of corporations, of the address of its
principal place of business and the names and addresses of its
principal officers.
(12) That in the construction, operation, and maintenance of the
project, he or she must 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.
(13) That the grant of the permit shall be subject to the express
condition that the exercise thereof will not unduly interfere with the
management, administration, or disposal by the United States of the
land affected thereby. The applicant agrees and consents to the
occupancy and use by the United States, its grantees, permittees, or
lessees of any part of the permit area not actually occupied for the
purpose of the granted rights to the extent that such use does not
interfere with the full and safe utilization thereof by the holder. The
holder of a permit also agrees that authorized representatives of the
United States shall have the right of access to the permit area for the
purpose of making inspections and monitoring the construction,
operation, and maintenance of facilities.
(14) That the permit herein granted shall be subject to the express
covenant that any facility constructed thereon will be modified or
adapted, if such is found by the Regional Director to be necessary,
without liability or expense to the United States, so that such
facility will not conflict with the use and occupancy of the land for
any authorized works that may hereafter be constructed thereon under
the authority of the United States. Any such 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.
(15) That the permit herein granted shall be for the specific use
described and may not be construed to include the further right to
authorize any other use within the permit area unless approved in
writing by the Regional Director.
(16) 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 purposes of the refuge. Required permit
modifications may include changes to permit conditions and/or
additional stipulations that a Regional Director deems necessary based
on new information.
(17) The permittee will comply with the Archaeological Resources
Protection Act (16 U.S.C. 470aa). The disturbance of archaeological or
historical sites and the removal of artifacts from Federal land are
prohibited. If such sites or artifacts are encountered, the permittee
will immediately cease all work upon Federal land and notify the
project manager.
(18) The permittee will 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.).
Sec. 29.21-9 [Amended]
0
8. Amend newly redesignated Sec. 29.21-9 by, in paragraph (a), adding
the words ``or her'' after the word ``his''.
0
9. Amend newly redesignated Sec. 29.21-10 by:
0
a. Revising paragraph (b) to read as set forth below; and
0
b. In paragraph (c), adding the words ``or her'' after the word
``him''.
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 grant. A $100 nonrefundable service fee must
accompany the proposal. No transfer will be recognized unless and until
[[Page 5128]]
approved in writing by the Regional Director.
* * * * *
0
10. Revise newly redesignated Sec. 29.21-11 to read as follows:
Sec. 29.21-11 Required Payment for use and occupancy of national
wildlife refuge lands.
(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
Department of the Interior-approved method 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 in advance of permit issuance.
(2) If any Federal, State, or local agency is exempt from such
payment under any other provision of Federal law, such agency shall
inform the U.S. Fish and Wildlife Service of the applicable Federal law
during the required pre-application meeting, and shall 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
shall relate to, and be consistent with, the mission of the National
Wildlife Refuge System. For these agencies exempted from payment by
law, the Regional Director may waive such requirement for other
compensation if he or she finds such requirement impracticable or
unnecessary.
(b) When annual rental payments are used, such rates will be
reviewed by the Regional Director not more than every 5 years after the
issuance of the permit or the last revision of the permit, whichever is
later. The Regional Director will furnish a notice in writing to the
holder of a permit 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 holder files an appeal in
accordance with Sec. 29.22.
Sec. 29.21-12 [Amended]
0
11. Amend newly redesignated Sec. 29.21-12 by:
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(b)'';
0
b. In paragraph (a), by adding the words ``or her'' after the word
``his'' both times that it appears; and
0
c. In paragraph (b), by adding the words ``or her'' after the word
``him'' both times that it appears.
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 therefrom.
(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 and/or more than one bureau or office of the
Department of the Interior, a single application shall 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 will be subject to the provisions of the
regulations in this part.
(b) Right-of-way permits. Right-of-way permits issued under this
section will be 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 U.S.
Fish and Wildlife 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 parts 192 or 195 and in accordance with the
Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq.),
including any amendments thereto.
(2) Environmental protection. An application for a right-of-way
must contain environmental information required by Sec. 29.21-4(a)(2).
If the Regional Director determines that a proposed project will have a
significant effect on the environment, there must also be furnished 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 such stipulations as may be
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 the
participants in the entity. Such disclosure shall include where
applicable:
(1) The name and address of each partner;
(2) The name and address of each shareholder owning 3 percentum or
more of the shares, together with the number and percentage of any
class of voting shares of the entity that such shareholder is
authorized to vote; 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 which controls that entity, the number of shares
and the percentage of any class of voting stock of that entity owned,
directly or indirectly, by the affiliate.
(d) Technical and financial capability. The Regional Director may
grant or renew a right-of-way permit under this section only when he or
she is satisfied that the applicant has the technical and financial
capability to construct, operate, maintain, and terminate the facility.
At the discretion of the Regional Director, a financial statement may
be required.
(e) Reimbursement of costs. In accordance with Sec. 29.21-6, the
holder of 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.
(f) Public hearing. The Regional Director shall give notice to
Federal, State, and local government agencies, and the public, and
afford them the opportunity to comment on right-of-way applications
under this section. A notice will be published in the Federal
[[Page 5129]]
Register, and a public hearing may be held where appropriate.
(g) Bonding. Where appropriate, the Regional Director may require
the holder of a right-of-way permit to furnish a bond, or other
security satisfactory to him, 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.
(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, he or she 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 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.
Such suspension shall remain in effect for only so long as an emergency
condition continues.
(i) Joint use of rights-of-way. Each right-of-way permit shall
reserve to the Regional Director the right to grant additional rights-
of-way permits for compatible uses on or adjacent to rights-of-way
permit areas granted under this section after giving notice to the
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 produced therefrom shall be constructed,
operated, and maintained as common carriers.
(1) The owners or operators of pipelines subject to this subpart
shall 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 with due notice thereof 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 shall not apply
to any natural gas pipeline operated by any person subject to
regulation under the Natural Gas Act 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) Where natural gas not subject to State regulatory or
conservation laws governing its purchase by pipelines is offered for
sale, each such pipeline shall purchase, without discrimination, any
such natural gas produced in the vicinity of the pipeline.
(k) Required information. The Regional Director shall require,
prior to granting or renewing a right-of-way, that the applicant submit
and disclose all plans, contracts, agreements, or other information or
material that the Regional Director deems necessary to determine
whether a right-of-way shall be granted or renewed and the terms and
conditions that should be included in the right-of-way. Such
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 shall take into
consideration, and to the extent practical comply with, applicable
State standards for right-of-way construction, operation, and
maintenance.
(m) Congressional notification. The Secretary shall 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 for
such a pipeline shall be granted until 60 days (not including days on
which the House or Senate has adjourned for more than 3 days) after a
notice of intention to grant the right-of-way, together with the
Secretary's detailed findings as to the terms and conditions he or she
proposes to impose, has been submitted to such committees.
George Wallace,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2021-00704 Filed 1-15-21; 8:45 am]
BILLING CODE 4333-15-P