43 USC CHAPTER 35, SUBCHAPTER V: RIGHTS-OF-WAY

From Title 43—PUBLIC LANDSCHAPTER 35—FEDERAL LAND POLICY AND MANAGEMENT

SUBCHAPTER V—RIGHTS-OF-WAY

§1761. Grant, issue, or renewal of rights-of-way

(a) Authorized purposes

The Secretary, with respect to the public lands (including public lands, as defined in section 1702(e) of this title, which are reserved from entry pursuant to section 24 of the Federal Power Act (16 U.S.C. 818)) and, the Secretary of Agriculture, with respect to lands within the National Forest System (except in each case land designated as wilderness), are authorized to grant, issue, or renew rights-of-way over, upon, under, or through such lands for—

(1) reservoirs, canals, ditches, flumes, laterals, pipes, pipelines, tunnels, and other facilities and systems for the impoundment, storage, transportation, or distribution of water;

(2) pipelines and other systems for the transportation or distribution of liquids and gases, other than water and other than oil, natural gas, synthetic liquid or gaseous fuels, or any refined product produced therefrom, and for storage and terminal facilities in connection therewith;

(3) pipelines, slurry and emulsion systems, and conveyor belts for transportation and distribution of solid materials, and facilities for the storage of such materials in connection therewith;

(4) systems for generation, transmission, and distribution of electric energy, except that the applicant shall also comply with all applicable requirements of the Federal Energy Regulatory Commission under the Federal Power Act, including part 1 ¹ thereof (41 Stat. 1063, 16 U.S.C. 791a–825r).; ²

(5) systems for transmission or reception of radio, television, telephone, telegraph, and other electronic signals, and other means of communication;

(6) roads, trails, highways, railroads, canals, tunnels, tramways, airways, livestock driveways, or other means of transportation except where such facilities are constructed and maintained in connection with commercial recreation facilities on lands in the National Forest System; or

(7) such other necessary transportation or other systems or facilities which are in the public interest and which require rights-of-way over, upon, under, or through such lands.

(b) Procedures applicable; administration

(1) The Secretary concerned shall require, prior to granting, issuing, or renewing a right-of-way, that the applicant submit and disclose those plans, contracts, agreements, or other information reasonably related to the use, or intended use, of the right-of-way, including its effect on competition, which he deems necessary to a determination, in accordance with the provisions of this Act, as to whether a right-of-way shall be granted, issued, or renewed and the terms and conditions which should be included in the right-of-way.

(2) If the applicant is a partnership, corporation, association, or other business entity, the Secretary concerned, prior to granting a right-to-way ³ pursuant to this subchapter, shall require the applicant to disclose the identity of the participants in the entity, when he deems it necessary to a determination, in accordance with the provisions of this subchapter, as to whether a right-of-way shall be granted, issued, or renewed and the terms and conditions which should be included in the right-of-way. Such disclosures shall include, where applicable: (A) the name and address of each partner; (B) the name and address of each shareholder owning 3 per centum or more of the shares, together with the number and percentage of any class of voting shares of the entity which such shareholder is authorized to vote; and (C) 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.

(3) The Secretary of Agriculture shall have the authority to administer all rights-of-way granted or issued under authority of previous Acts with respect to lands under the jurisdiction of the Secretary of Agriculture, including rights-of-way granted or issued pursuant to authority given to the Secretary of the Interior by such previous Acts.

(c) Permanent easement for water systems; issuance, preconditions, etc.

(1) Upon receipt of a written application pursuant to paragraph (2) of this subsection from an applicant meeting the requirements of this subsection, the Secretary of Agriculture shall issue a permanent easement, without a requirement for reimbursement, for a water system as described in subsection (a)(1) of this section, traversing Federal lands within the National Forest System ("National Forest Lands"), constructed and in operation or placed into operation prior to October 21, 1976, if—

(A) the traversed National Forest lands are in a State where the appropriation doctrine governs the ownership of water rights;

(B) at the time of submission of the application the water system is used solely for agricultural irrigation or livestock watering purposes;

(D) the originally constructed facilities comprising such system have been in substantially continuous operation without abandonment;

(E) the applicant has a valid existing right, established under applicable State law, for water to be conveyed by the water system;

(F) a recordable survey and other information concerning the location and characteristics of the system as necessary for proper management of National Forest lands is provided to the Secretary of Agriculture by the applicant for the easement; and

(G) the applicant submits such application on or before December 31, 1996.

(2)(A) Nothing in this subsection shall be construed as affecting any grants made by any previous Act. To the extent any such previous grant of right-of-way is a valid existing right, it shall remain in full force and effect unless an owner thereof notifies the Secretary of Agriculture that such owner elects to have a water system on such right-of-way governed by the provisions of this subsection and submits a written application for issuance of an easement pursuant to this subsection, in which case upon the issuance of an easement pursuant to this subsection such previous grant shall be deemed to have been relinquished and shall terminate.

(B) Easements issued under the authority of this subsection shall be fully transferable with all existing conditions and without the imposition of fees or new conditions or stipulations at the time of transfer. The holder shall notify the Secretary of Agriculture within sixty days of any address change of the holder or change in ownership of the facilities.

(C) Easements issued under the authority of this subsection shall include all changes or modifications to the original facilities in existence as of October 21, 1976, the date of enactment of this Act.

(D) Any future extension or enlargement of facilities after October 21, 1976, shall require the issuance of a separate authorization, not authorized under this subsection.

(3)(A) Except as otherwise provided in this subsection, the Secretary of Agriculture may terminate or suspend an easement issued pursuant to this subsection in accordance with the procedural and other provisions of section 1766 of this title. An easement issued pursuant to this subsection shall terminate if the water system for which such easement was issued is used for any purpose other than agricultural irrigation or livestock watering use. For purposes of subparagraph (D) of paragraph (1) of this subsection, non-use of a water system for agricultural irrigation or livestock watering purposes for any continuous five-year period shall constitute a rebuttable presumption of abandonment of the facilities comprising such system.

(B) Nothing in this subsection shall be deemed to be an assertion by the United States of any right or claim with regard to the reservation, acquisition, or use of water. Nothing in this subsection shall be deemed to confer on the Secretary of Agriculture any power or authority to regulate or control in any manner the appropriation, diversion, or use of water for any purpose (nor to diminish any such power or authority of such Secretary under applicable law) or to require the conveyance or transfer to the United States of any right or claim to the appropriation, diversion, or use of water.

(C) Except as otherwise provided in this subsection, all rights-of-way issued pursuant to this subsection are subject to all conditions and requirements of this Act.

(D) In the event a right-of-way issued pursuant to this subsection is allowed to deteriorate to the point of threatening persons or property and the holder of the right-of-way, after consultation with the Secretary of Agriculture, refuses to perform the repair and maintenance necessary to remove the threat to persons or property, the Secretary shall have the right to undertake such repair and maintenance on the right-of-way and to assess the holder for the costs of such repair and maintenance, regardless of whether the Secretary had required the holder to furnish a bond or other security pursuant to subsection (i) of this section.

(d) Rights-of-way on certain Federal lands

With respect to any project or portion thereof that was licensed pursuant to, or granted an exemption from, part I of the Federal Power Act [16 U.S.C. 791a et seq.] which is located on lands subject to a reservation under section 24 of the Federal Power Act [16 U.S.C. 818] and which did not receive a permit, right-of-way or other approval under this section prior to October 24, 1992, no such permit, right-of-way, or other approval shall be required for continued operation, including continued operation pursuant to section 15 of the Federal Power Act [16 U.S.C. 808], of such project unless the Commission determines that such project involves the use of any additional public lands or National Forest lands not subject to such reservation.

(Pub. L. 94–579, title V, §501, Oct. 21, 1976, 90 Stat. 2776; Pub. L. 99–545, §1(b), (c), Oct. 27, 1986, 100 Stat. 3047, 3048; Pub. L. 102–486, title XXIV, §2401, Oct. 24, 1992, 106 Stat. 3096.)

Editorial Notes

References in Text

The Federal Power Act, referred to in subsecs. (a)(4) and (d), is act June 20, 1920, ch. 285, 41 Stat. 1063, which is classified generally to chapter 12 (§791a et seq.) of Title 16, Conservation. Part I of the Act is classified generally to subchapter I (§791a et seq.) of chapter 12 of Title 16. For complete classification of this Act to the Code, see section 791a of Title 16 and Tables.

This Act, referred to in subsecs. (b)(1) and (c)(3)(C), is Pub. L. 94–579, Oct. 21, 1976, 90 Stat. 2743, known as the Federal Land Policy and Management Act of 1976. For complete classification of this Act to the Code, see Tables.

Amendments

1992—Subsec. (a). Pub. L. 102–486, §2401(1), inserted "(including public lands, as defined in section 1702(e) of this title, which are reserved from entry pursuant to section 24 of the Federal Power Act (16 U.S.C. 818))".

Subsec. (a)(4). Pub. L. 102–486, §2401(2), substituted "Federal Energy Regulatory Commission under the Federal Power Act, including part 1 thereof (41 Stat. 1063, 16 U.S.C. 791a–825r)." for "Federal Power Commission under the Federal Power Act of 1935 (49 Stat. 847; 16 U.S.C. 791)". The substitution was made to reflect the probable intent of Congress, in the absence of closing quotations designating the provisions to be struck out.

Subsec. (d). Pub. L. 102–486, §2401(3), added subsec. (d).

1986—Subsec. (b)(3). Pub. L. 99–545, §1(c), added par. (3).

Subsec. (c). Pub. L. 99–545, §1(b), added subsec. (c).

Executive Documents

Transfer of Functions

Enforcement functions of Secretary or other official in Department of Agriculture, insofar as they involve lands and programs under jurisdiction of that Department, related to compliance with land use permits for other associated land uses issued under sections 1761, and 1763 to 1771 of this title, and such functions of Secretary or other official in Department of the Interior related to compliance with land use permits for temporary use of public lands and other associated land uses, issued under sections 1732, 1761, and 1763 to 1771 of this title, with respect to pre-construction, construction, and initial operation of transportation systems for Canadian and Alaskan natural gas transferred to Federal Inspector, Office of Federal Inspector for Alaska Natural Gas Transportation System, until first anniversary of date of initial operation of Alaska Natural Gas Transportation System, see Reorg. Plan No. 1 of 1979, §§102(e), (f), 203(a), 44 F.R. 33663, 33666, 93 Stat. 1373, 1376, effective July 1, 1979, set out in the Appendix to Title 5, Government Organization and Employees. Office of Federal Inspector for the Alaska Natural Gas Transportation System abolished and functions and authority vested in Inspector transferred to Secretary of Energy by section 3012(b) of Pub. L. 102–486, set out as an Abolition of Office of Federal Inspector note under section 719e of Title 15, Commerce and Trade. Functions and authority vested in Secretary of Energy subsequently transferred to Federal Coordinator for Alaska Natural Gas Transportation Projects by section 720d(f) of Title 15.

¹ So in original. Probably should be part "I".

² So in original. The period preceding the semicolon probably should not appear.

³ So in original. Probably should be "right-of-way".

§1761a. Streamlining the Forest Service process for consideration of communications facility location applications

(a) Definitions

In this section:

(1) Communications facility

The term "communications facility" includes—

(A) any infrastructure, including any transmitting device, tower, or support structure, and any equipment, switches, wiring, cabling, power sources, shelters, or cabinets, associated with the licensed or permitted unlicensed wireless or wireline transmission of writings, signs, signals, data, images, pictures, and sounds of all kinds; and

(B) any antenna or apparatus that—

(i) is designed for the purpose of emitting radio frequency;

(ii) is designed to be operated, or is operating, from a fixed location pursuant to authorization by the Federal Communications Commission or is using duly authorized devices that do not require individual licenses; and

(iii) is added to a tower, building, or other structure.

(2) Communications site

The term "communications site" means an area of covered land designated for communications uses.

(3) Communications use

The term "communications use" means the placement and operation of a communications facility.

(4) Communications use authorization

The term "communications use authorization" means an easement, right-of-way, lease, license, or other authorization to locate or modify a communications facility on covered land by the Forest Service for the primary purpose of authorizing the occupancy and use of the covered land for communications use.

(5) Covered land

The term "covered land" means National Forest System land.

(6) Forest Service

The term "Forest Service" means the United States Forest Service of the Department of Agriculture.

(7) Organizational unit

The term "organizational unit" means, within the Forest Service—

(A) a regional office;

(B) the headquarters;

(D) a ranger district office.

(b) Regulations

Notwithstanding section 1455 of title 47 or section 606 of the Repack Airwaves Yielding Better Access for Users of Modern Services Act of 2018 (Public Law 115–141), not later than 1 year after December 20, 2018, the Secretary shall issue regulations—

(1) to streamline the process for considering applications to locate or modify communications facilities on covered land;

(2) to ensure, to the maximum extent practicable, that the process is uniform and standardized across the organizational units of the Forest Service; and

(3) to require that the applications described in paragraph (1) be considered and granted on a competitively neutral, technology neutral, and non-discriminatory basis.

(c) Requirements

The regulations issued under subsection (b) shall include the following:

(1) Procedures for the tracking of applications described in subsection (b)(1), including—

(A) identifying the number of applications—

(i) received;

(ii) approved; and

(iii) denied;

(B) in the case of an application that is denied, describing the reasons for the denial; and

(C) describing the amount of time between the receipt of an application and the issuance of a final decision on an application.

(2) Provision for minimum lease terms of not less than 15 years for leases with respect to the location of communications facilities on covered land.

(3) A structure of fees for—

(A) submitting an application described in subsection (b)(1), based on the cost to the Forest Service of considering such an application; and

(B) issuing communications use authorizations, based on the cost to the Forest Service of any maintenance or other activities required to be performed by the Forest Service as a result of the location or modification of the communications facility.

(4) Provision for prioritization or streamlining of the consideration of applications to locate or modify communications facilities on covered land in a previously disturbed right-of-way.

(d) Additional considerations

In issuing regulations under subsection (b), the Secretary shall consider—

(1) how discrete reviews in considering an application described in subsection (b)(1) can be conducted simultaneously, rather than sequentially, by any organizational units of the Forest Service that must approve the location or modification; and

(2) how to eliminate overlapping requirements among the organizational units of the Forest Service with respect to the location or modification of a communications facility on covered land administered by those organizational units.

(e) Communication of streamlined process to organizational units

The Secretary shall, with respect to the regulations issued under subsection (b)—

(1) communicate the regulations to the organizational units of the Forest Service; and

(2) ensure that the organizational units of the Forest Service follow the regulations.

(f) Deposit and availability of fees

(1) Special account

The Secretary of the Treasury shall establish a special account in the Treasury for the Forest Service for the deposit of fees collected by the Forest Service under subsection (c)(3) for communications use authorizations on covered land granted, issued, or executed by the Forest Service.

(2) Requirements for fees collected

Fees collected by the Forest Service under subsection (c)(3) shall be—

(A) collected only to the extent provided in advance in appropriations Acts;

(B) based on the costs described in subsection (c)(3); and

(C) competitively neutral, technology neutral, and nondiscriminatory with respect to other users of the communications site.

(3) Deposit of fees

Fees collected by the Forest Service under subsection (c)(3) shall be deposited in the special account established for the Forest Service under paragraph (1).

(4) Availability of fees

Amounts deposited in the special account for the Forest Service shall be available, to the extent and in such amounts as are provided in advance in appropriation Acts, to the Secretary to cover costs incurred by the Forest Service described in subsection (c)(3), including the following:

(A) Preparing needs assessments or other programmatic analyses necessary to designate communications sites and issue communications use authorizations.

(B) Developing management plans for communications sites.

(D) Obtaining or improving access to communications sites.

(5) No additional appropriations authorized

Except as provided in paragraph (4), no other amounts are authorized to be appropriated to carry out this section.

(g) Savings provisions

(1) Real property authorities

Nothing in this section, or the amendments made by this section, shall be construed as providing any executive agency with any new leasing or other real property authorities not existing prior to December 20, 2018.

(2) Effect on other laws

Nothing in this section, or the amendments made by this section, and no actions taken pursuant to this section, or the amendments made by this section, shall impact a decision or determination by any executive agency to sell, dispose of, declare excess or surplus, lease, reuse, or redevelop any Federal real property pursuant to title 40, the Federal Assets Sale and Transfer Act of 2016 (40 U.S.C. 1303 note; Public Law 114–287), or any other law governing real property activities of the Federal Government. No agreement entered into pursuant to this section, or the amendments made by this section, may obligate the Federal Government to hold, control, or otherwise retain or use real property that may otherwise be deemed as excess, surplus, or that could otherwise be sold, leased, or redeveloped.

(Pub. L. 115–334, title VIII, §8705, Dec. 20, 2018, 132 Stat. 4878; Pub. L. 116–94, div. D, title IV, §416, Dec. 20, 2019, 133 Stat. 2746.)

Editorial Notes

References in Text

Section 606 of the Repack Airwaves Yielding Better Access for Users of Modern Services Act of 2018, referred to in subsec. (b), is section 606 of div. P of Pub. L. 115–141, which amended section 1455 of Title 47, Telecommunications, and enacted provisions set out as notes under section 1455 of Title 47.

Codification

Section was enacted as part of the Agriculture Improvement Act of 2018, and not as part of the Federal Land Policy and Management Act of 1976 which comprises this chapter.

Amendments

2019—Subsec. (f)(2). Pub. L. 116–94 added par. (2) and struck out former par. (2). Prior to amendment, text read as follows: "Fees collected by the Forest Service under subsection (c)(3) shall be—

"(A) based on the costs described in subsection (c)(3); and

"(B) competitively neutral, technology neutral, and nondiscriminatory with respect to other users of the communications site."

Statutory Notes and Related Subsidiaries

Definition of "Secretary"

"Secretary" means the Secretary of Agriculture, see section 2 of Pub. L. 115–334, set out as a note under section 9001 of Title 7, Agriculture.

§1762. Roads

(a) Authority to acquire, construct, and maintain; financing arrangements

The Secretary, with respect to the public lands, is authorized to provide for the acquisition, construction, and maintenance of roads within and near the public lands in locations and according to specifications which will permit maximum economy in harvesting timber from such lands tributary to such roads and at the same time meet the requirements for protection, development, and management of such lands for utilization of the other resources thereof. Financing of such roads may be accomplished (1) by the Secretary utilizing appropriated funds, (2) by requirements on purchasers of timber and other products from the public lands, including provisions for amortization of road costs in contracts, (3) by cooperative financing with other public agencies and with private agencies or persons, or (4) by a combination of these methods: Provided, That, where roads of a higher standard than that needed in the harvesting and removal of the timber and other products covered by the particular sale are to be constructed, the purchaser of timber and other products from public lands shall not, except when the provisions of the second proviso of this subsection apply, be required to bear that part of the costs necessary to meet such higher standard, and the Secretary is authorized to make such arrangements to this end as may be appropriate: Provided further, That when timber is offered with the condition that the purchaser thereof will build a road or roads in accordance with standards specified in the offer, the purchaser of the timber will be responsible for paying the full costs of construction of such roads.

(b) Recordation of copies of affected instruments

Copies of all instruments affecting permanent interests in land executed pursuant to this section shall be recorded in each county where the lands are located.

(c) Maintenance or reconstruction of facilities by users

The Secretary may require the user or users of a road, trail, land, or other facility administered by him through the Bureau, including purchasers of Government timber and other products, to maintain such facilities in a satisfactory condition commensurate with the particular use requirements of each. Such maintenance to be borne by each user shall be proportionate to total use. The Secretary may also require the user or users of such a facility to reconstruct the same when such reconstruction is determined to be necessary to accommodate such use. If such maintenance or reconstruction cannot be so provided or if the Secretary determines that maintenance or reconstruction by a user would not be practical, then the Secretary may require that sufficient funds be deposited by the user to provide his portion of such total maintenance or reconstruction. Deposits made to cover the maintenance or reconstruction of roads are hereby made available until expended to cover the cost to the United States of accomplishing the purposes for which deposited: Provided, That deposits received for work on adjacent and overlapping areas may be combined when it is the most practicable and efficient manner of performing the work, and cost thereof may be determined by estimates: And provided further, That unexpended balances upon accomplishment of the purpose for which deposited shall be transferred to miscellaneous receipts or refunded.

(d) Fund for user fees for delayed payment to grantor

Whenever the agreement under which the United States has obtained for the use of, or in connection with, the public lands a right-of-way or easement for a road or an existing road or the right to use an existing road provides for delayed payments to the Government's grantor, any fees or other collections received by the Secretary for the use of the road may be placed in a fund to be available for making payments to the grantor.

(Pub. L. 94–579, title V, §502, Oct. 21, 1976, 90 Stat. 2777.)

§1763. Right-of-way corridors; criteria and procedures applicable for designation

In order to minimize adverse environmental impacts and the proliferation of separate rights-of-way, the utilization of rights-of-way in common shall be required to the extent practical, and each right-of-way or permit shall reserve to the Secretary concerned the right to grant additional rights-of-way or permits for compatible uses on or adjacent to rights-of-way granted pursuant to this Act. In designating right-of-way corridors and in determining whether to require that rights-of-way be confined to them, the Secretary concerned shall take into consideration national and State land use policies, environmental quality, economic efficiency, national security, safety, and good engineering and technological practices. The Secretary concerned shall issue regulations containing the criteria and procedures he will use in designating such corridors. Any existing transportation and utility corridors may be designated as transportation and utility corridors pursuant to this subsection without further review.

(Pub. L. 94–579, title V, §503, Oct. 21, 1976, 90 Stat. 2778.)

Editorial Notes

References in Text

This Act, referred to in text, is Pub. L. 94–579, Oct. 21, 1976, 90 Stat. 2743, known as the Federal Land Policy and Management Act of 1976. For complete classification of this Act to the Code, see Tables.

Executive Documents

Transfer of Functions

§1764. General requirements

(a) Boundary specifications; criteria; temporary use of additional lands

The Secretary concerned shall specify the boundaries of each right-of-way as precisely as is practical. Each right-of-way shall be limited to the ground which the Secretary concerned determines (1) will be occupied by facilities which constitute the project for which the right-of-way is granted, issued, or renewed, (2) to be necessary for the operation or maintenance of the project, (3) to be necessary to protect the public safety, and (4) will do no unnecessary damage to the environment. The Secretary concerned may authorize the temporary use of such additional lands as he determines to be reasonably necessary for the construction, operation, maintenance, or termination of the project or a portion thereof, or for access thereto.

(b) Terms and conditions of right-of-way or permit

Each right-of-way or permit granted, issued, or renewed pursuant to this section shall be limited to a reasonable term in light of all circumstances concerning the project. In determining the duration of a right-of-way the Secretary concerned shall, among other things, take into consideration the cost of the facility, its useful life, and any public purpose it serves. The right-of-way shall specify whether it is or is not renewable and the terms and conditions applicable to the renewal.

(c) Applicability of regulations or stipulations

Rights-of-way shall be granted, issued, or renewed pursuant to this subchapter under such regulations or stipulations, consistent with the provisions of this subchapter or any other applicable law, and shall also be subject to such terms and conditions as the Secretary concerned may prescribe regarding extent, duration, survey, location, construction, maintenance, transfer or assignment, and termination.

(d) Submission of plan of construction, operation, and rehabilitation by new project applicants; plan requirements

The Secretary concerned prior to granting or issuing a right-of-way pursuant to this subchapter for a new project which may have a significant impact on the environment, shall require the applicant to submit a plan of construction, operation, and rehabilitation for such right-of-way which shall comply with stipulations or with regulations issued by that Secretary, including the terms and conditions required under section 1765 of this title.

(e) Regulatory requirements for terms and conditions; revision and applicability of regulations

The Secretary concerned shall issue regulations with respect to the terms and conditions that will be included in rights-of-way pursuant to section 1765 of this title. Such regulations shall be regularly revised as needed. Such regulations shall be applicable to every right-of-way granted or issued pursuant to this subchapter and to any subsequent renewal thereof, and may be applicable to rights-of-way not granted or issued, but renewed pursuant to this subchapter.

(f) Removal or use of mineral and vegetative materials

Mineral and vegetative materials, including timber, within or without a right-of-way, may be used or disposed of in connection with construction or other purposes only if authorization to remove or use such materials has been obtained pursuant to applicable laws or for emergency repair work necessary for those rights-of-way authorized under section 1761(c) of this title.

(g) Rental payments; amount, waiver, etc.

The holder of a right-of-way shall pay in advance the fair market value thereof, as determined by the Secretary granting, issuing, or renewing such right-of-way. The Secretary concerned may require either annual payment or a payment covering more than one year at a time except that private individuals may make at their option either annual payments or payments covering more than one year if the annual fee is greater than one hundred dollars. The Secretary concerned may waive rentals where a right-of-way is granted, issued or renewed in consideration of a right-of-way conveyed to the United States in connection with a cooperative cost share program between the United States and the holder. The Secretary concerned may, by regulation or prior to promulgation of such regulations, as a condition of a right-of-way, require an applicant for or holder of a right-of-way to reimburse the United States for all reasonable administrative and other costs incurred in processing an application for such right-of-way and in inspection and monitoring of construction, operation, and termination of the facility pursuant to such right-of-way: Provided, however, That the Secretary concerned need not secure reimbursement in any situation where there is in existence a cooperative cost share right-of-way program between the United States and the holder of a right-of-way. Rights-of-way may be granted, issued, or renewed to a Federal, State, or local government or any agency or instrumentality thereof, to nonprofit associations or nonprofit corporations which are not themselves controlled or owned by profitmaking corporations or business enterprises, or to a holder where he provides without or at reduced charges a valuable benefit to the public or to the programs of the Secretary concerned, or to a holder in connection with the authorized use or occupancy of Federal land for which the United States is already receiving compensation for such lesser charge, including free use as the Secretary concerned finds equitable and in the public interest. Such rights-of-way issued at less than fair market value are not assignable except with the approval of the Secretary issuing the right-of-way. The moneys received for reimbursement of reasonable costs shall be deposited with the Treasury in a special account and are hereby authorized to be appropriated and made available until expended. Rights-of-way shall be granted, issued, or renewed, without rental fees, for electric or telephone facilities eligible for financing pursuant to the Rural Electrification Act of 1936, as amended [7 U.S.C. 901 et seq.], determined without regard to any application requirement under that Act, or any extensions from such facilities: Provided, That nothing in this sentence shall be construed to affect the authority of the Secretary granting, issuing, or renewing the right-of-way to require reimbursement of reasonable administrative and other costs pursuant to the second sentence of this subsection.

(h) Liability for damage or injury incurred by United States for use and occupancy of rights-of-way; indemnification of United States; no-fault liability; amount of damages

(1) The Secretary concerned shall promulgate regulations specifying the extent to which holders of rights-of-way under this subchapter shall be liable to the United States for damage or injury incurred by the United States caused by the use and occupancy of the rights-of-way. The regulations shall also specify the extent to which such holders shall indemnify or hold harmless the United States for liabilities, damages, or claims caused by their use and occupancy of the rights-of-way.

(2) Any regulation or stipulation imposing liability without fault shall include a maximum limitation on damages commensurate with the foreseeable risks or hazards presented. Any liability for damage or injury in excess of this amount shall be determined by ordinary rules of negligence.

(i) Bond or security requirements

Where he deems it appropriate, the Secretary concerned may require a holder of a right-of-way 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 or by any rule or regulation of the Secretary concerned.

(j) Criteria for grant, issue, or renewal of right-of-way

The Secretary concerned shall grant, issue, or renew a right-of-way under this subchapter only when he is satisfied that the applicant has the technical and financial capability to construct the project for which the right-of-way is requested, and in accord with the requirements of this subchapter.

(Pub. L. 94–579, title V, §504, Oct. 21, 1976, 90 Stat. 2778; Pub. L. 98–300, May 25, 1984, 98 Stat. 215; Pub. L. 99–545, §2, Oct. 27, 1986, 100 Stat. 3048; Pub. L. 104–333, div. I, title X, §1032(a), Nov. 12, 1996, 110 Stat. 4239.)

Editorial Notes

References in Text

The Rural Electrification Act of 1936, referred to in subsec. (g), is act May 20, 1936, ch. 432, 49 Stat. 1363, which is classified generally to chapter 31 (§901 et seq.) of Title 7, Agriculture. For complete classification of this Act to the Code, see section 901 of Title 7 and Tables.

Amendments

1996—Subsec. (g). Pub. L. 104–333 substituted "eligible for financing pursuant to the Rural Electrification Act of 1936, as amended, determined without regard to any application requirement under that Act," for "financed pursuant to the Rural Electrification Act of 1936, as amended,".

1986—Subsec. (f). Pub. L. 99–545, §2(1), inserted before the period at end "or for emergency repair work necessary for those rights-of-way authorized under section 1761(c) of this title".

Subsec. (g). Pub. L. 99–545, §2(2), substituted "The holder of a right-of-way shall pay in advance the fair market value thereof, as determined by the Secretary granting, issuing, or renewing such right-of-way. The Secretary concerned may require either annual payment or a payment covering more than one year at a time except that private individuals may make at their option either annual payments or payments covering more than one year if the annual fee is greater than one hundred dollars. The Secretary concerned may waive rentals where a right-of-way is granted, issued or renewed in consideration of a right-of-way conveyed to the United States in connection with a cooperative cost share program between the United States and the holder." for "The holder of a right-of-way shall pay annually in advance the fair market value thereof as determined by the Secretary granting, issuing, or renewing such right-of-way: Provided, That when the annual rental is less than $100, the Secretary concerned may require advance payment for more than one year at a time: Provided further, That the Secretary concerned may waive rentals where a right-of-way is granted, issued, or renewed in reciprocation for a right-of-way conveyed to the United States in connection with a cooperative cost share program between the United States and the holder."

1984—Subsec. (g). Pub. L. 98–300 inserted at end "Rights-of-way shall be granted, issued, or renewed, without rental fees, for electric or telephone facilities financed pursuant to the Rural Electrification Act of 1936, as amended, or any extensions from such facilities: Provided, That nothing in this sentence shall be construed to affect the authority of the Secretary granting, issuing, or renewing the right-of-way to require reimbursement of reasonable administrative and other costs pursuant to the second sentence of this subsection."

Statutory Notes and Related Subsidiaries

Effective Date of 1996 Amendment

Pub. L. 104–333, div. I, title X, §1032(b), Nov. 12, 1996, 110 Stat. 4239, provided that: "The amendment made by subsection (a) [amending this section] shall apply with respect to rights-of-way leases held on or after the date of enactment of this Act [Nov. 12, 1996]."

Executive Documents

Transfer of Functions

See note set out under section 1763 of this title.

§1765. Terms and conditions

Each right-of-way shall contain—

(a) terms and conditions which will (i) carry out the purposes of this Act and rules and regulations issued thereunder; (ii) minimize damage to scenic and esthetic values and fish and wildlife habitat and otherwise protect the environment; (iii) require compliance with applicable air and water quality standards established by or pursuant to applicable Federal or State law; and (iv) require compliance with State standards for public health and safety, environmental protection, and siting, construction, operation, and maintenance of or for rights-of-way for similar purposes if those standards are more stringent than applicable Federal standards; and

(b) such terms and conditions as the Secretary concerned deems necessary to (i) protect Federal property and economic interests; (ii) manage efficiently the lands which are subject to the right-of-way or adjacent thereto and protect the other lawful users of the lands adjacent to or traversed by such right-of-way; (iii) protect lives and property; (iv) protect the interests of individuals living in the general area traversed by the right-of-way who rely on the fish, wildlife, and other biotic resources of the area for subsistence purposes; (v) require location of the right-of-way along a route that will cause least damage to the environment, taking into consideration feasibility and other relevant factors; and (vi) otherwise protect the public interest in the lands traversed by the right-of-way or adjacent thereto.

(Pub. L. 94–579, title V, §505, Oct. 21, 1976, 90 Stat. 2780.)

Editorial Notes

References in Text

This Act, referred to in par. (a), is Pub. L. 94–579, Oct. 21, 1976, 90 Stat. 2743, known as the Federal Land Policy and Management Act of 1976. For complete classification of this Act to the Code, see Tables.

Executive Documents

Transfer of Functions

See note set out under section 1763 of this title.

§1766. Suspension or termination; grounds; procedures applicable

Abandonment of a right-of-way or noncompliance with any provision of this subchapter condition of the right-of-way, or applicable rule or regulation of the Secretary concerned may be grounds for suspension or termination of the right-of-way if, after due notice to the holder of the right-of-way and, and ¹ with respect to easements, an appropriate administrative proceeding pursuant to section 554 of title 5, the Secretary concerned determines that any such ground exists and that suspension or termination is justified. No administrative proceeding shall be required where the right-of-way by its terms provides that it terminates on the occurrence of a fixed or agreed-upon condition, event, or time. If the Secretary concerned determines that an immediate temporary suspension of activities within a right-of-way for violation of its terms and conditions is necessary to protect public health or safety or the environment, he may abate such activities prior to an administrative proceeding. Prior to commencing any proceeding to suspend or terminate a right-of-way the Secretary concerned shall give written notice to the holder of the grounds for such action and shall give the holder a reasonable time to resume use of the right-of-way or to comply with this subchapter condition, rule, or regulation as the case may be. Failure of the holder of the right-of-way to use the right-of-way for the purpose for which it was granted, issued, or renewed, for any continuous five-year period, shall constitute a rebuttable presumption of abandonment of the right-of-way except that where the failure of the holder to use the right-of-way for the purpose for which it was granted, issued, or renewed for any continuous five-year period is due to circumstances not within the holder's control, the Secretary concerned is not required to commence proceedings to suspend or terminate the right-of-way.

(Pub. L. 94–579, title V, §506, Oct. 21, 1976, 90 Stat. 2780.)

Executive Documents

Transfer of Functions

See note set out under section 1763 of this title.

¹ So in original.

§1767. Rights-of-way for Federal departments and agencies

(a) The Secretary concerned may provide under applicable provisions of this subchapter for the use of any department or agency of the United States a right-of-way over, upon, under or through the land administered by him, subject to such terms and conditions as he may impose.

(b) Where a right-of-way has been reserved for the use of any department or agency of the United States, the Secretary shall take no action to terminate, or otherwise limit, that use without the consent of the head of such department or agency.

(Pub. L. 94–579, title V, §507, Oct. 21, 1976, 90 Stat. 2781.)

Executive Documents

Transfer of Functions

See note set out under section 1763 of this title.

§1768. Conveyance of lands covered by right-of-way; terms and conditions

If under applicable law the Secretary concerned decides to transfer out of Federal ownership any lands covered in whole or in part by a right-of-way, including a right-of-way granted under the Act of November 16, 1973 (87 Stat. 576; 30 U.S.C. 185), the lands may be conveyed subject to the right-of-way; however, if the Secretary concerned determines that retention of Federal control over the right-of-way is necessary to assure that the purposes of this subchapter will be carried out, the terms and conditions of the right-of-way complied with, or the lands protected, he shall (a) reserve to the United States that portion of the lands which lies within the boundaries of the right-of-way, or (b) convey the lands, including that portion within the boundaries of the right-of-way, subject to the right-of-way and reserving to the United States the right to enforce all or any of the terms and conditions of the right-of-way, including the right to renew it or extend it upon its termination and to collect rents.

(Pub. L. 94–579, title V, §508, Oct. 21, 1976, 90 Stat. 2781.)

Editorial Notes

References in Text

Act of November 16, 1973, referred to in text, is Pub. L. 93–153, Nov. 16, 1973, 87 Stat. 576. For complete classification of this Act to the Code, see Tables.

Executive Documents

Transfer of Functions

See note set out under section 1763 of this title.

§1769. Existing right-of-way or right-of-use unaffected; exceptions; rights-of-way for railroad and appurtenant communication facilities; applicability of existing terms and conditions

(a) Nothing in this subchapter shall have the effect of terminating any right-of-way or right-of-use heretofore issued, granted, or permitted. However, with the consent of the holder thereof, the Secretary concerned may cancel such a right-of-way or right-of-use and in its stead issue a right-of-way pursuant to the provisions of this subchapter.

(b) When the Secretary concerned issues a right-of-way under this subchapter for a railroad and appurtenant communication facilities in connection with a realinement of a railroad on lands under his jurisdiction by virtue of a right-of-way granted by the United States, he may, when he considers it to be in the public interest and the lands involved are not within an incorporated community and are of approximately equal value, notwithstanding the provisions of this subchapter, provide in the new right-of-way the same terms and conditions as applied to the portion of the existing right-of-way relinquished to the United States with respect to the payment of annual rental, duration of the right-of-way, and the nature of the interest in lands granted. The Secretary concerned or his delegate shall take final action upon all applications for the grant, issue, or renewal of rights-of-way under subsection (b) of this section no later than six months after receipt from the applicant of all information required from the applicant by this subchapter.

(Pub. L. 94–579, title V, §509, Oct. 21, 1976, 90 Stat. 2781.)

Executive Documents

Transfer of Functions

See note set out under section 1763 of this title.

§1770. Applicability of provisions to other Federal laws

(a) Right-of-way

Effective on and after October 21, 1976, no right-of-way for the purposes listed in this subchapter shall be granted, issued, or renewed over, upon, under, or through such lands except under and subject to the provisions, limitations, and conditions of this subchapter: Provided, That nothing in this subchapter shall be construed as affecting or modifying the provisions of sections 532 to 538 of title 16 and in the event of conflict with, or inconsistency between, this subchapter and sections 532 to 538 of title 16, the latter shall prevail: Provided further, That nothing in this Act should be construed as making it mandatory that, with respect to forest roads, the Secretary of Agriculture limit rights-of-way grants or their term of years or require disclosure pursuant to section 1761(b) of this title or impose any other condition contemplated by this Act that is contrary to present practices of that Secretary under sections 532 to 538 of title 16. Any pending application for a right-of-way under any other law on the effective date of this section shall be considered as an application under this subchapter. The Secretary concerned may require the applicant to submit any additional information he deems necessary to comply with the requirements of this subchapter.

(b) Highway use

Nothing in this subchapter shall be construed to preclude the use of lands covered by this subchapter for highway purposes pursuant to sections 107 and 317 of title 23.

(c) Application of antitrust laws

(1) Nothing in this subchapter shall be construed as exempting any holder of a right-of-way issued under this subchapter from any provision of the antitrust laws of the United States.

(2) For the purposes of this subsection, the term "antitrust laws" includes the Act of July 2, 1890 (26 Stat.¹ 15 U.S.C. 1 et seq.); the Act of October 15, 1914 (38 Stat. 730, 15 U.S.C. 12 et seq.); the Federal Trade Commission Act (38 Stat. 717; 15 U.S.C. 41 et seq.); and sections 73 and 74 of the Act of August 27, 1894 [15 U.S.C. 8, 9].

(Pub. L. 94–579, title V, §510, Oct. 21, 1976, 90 Stat. 2782.)

Editorial Notes

References in Text

This Act, referred to in subsec. (a), is Pub. L. 94–579, Oct. 21, 1976, 90 Stat. 2743, known as the Federal Land Policy and Management Act of 1976. For complete classification of this Act to the Code, see Tables.

The effective date of this section, referred to in subsec. (a), probably means the date of enactment of this section by Pub. L. 94–579, which was approved Oct. 21, 1976.

Act of July 2, 1890, referred to in subsec. (c)(2), is act July 2, 1890, ch. 647, 26 Stat. 209, known as the Sherman Act, which is classified to sections 1 to 7 of Title 15, Commerce and Trade. For complete classification of this Act to the Code, see Short Title note set out under section 1 of Title 15 and Tables.

Act of October 15, 1914, referred to in subsec. (c)(2), is act Oct. 15, 1914, ch. 323, 38 Stat. 730, known as the Clayton Act, which is classified generally to sections 12, 13, 14 to 19, 21, and 22 to 27 of Title 15, and sections 52 and 53 of Title 29, Labor. For further details and complete classification of this Act to the Code, see References in Text note set out under section 12 of Title 15 and Tables.

The Federal Trade Commission Act, referred to in subsec. (c)(2), is act Sept. 26, 1914, ch. 311, 38 Stat. 717, which is classified generally to subchapter I (§41 et seq.) of chapter 2 of Title 15. For complete classification of this Act to the Code, see section 58 of Title 15 and Tables.

Sections 73 and 74 of the Act of August 27, 1894, referred to in subsec. (c), are sections 73 and 74 of act Aug. 27, 1894, ch. 349, 28 Stat. 570, which are classified to sections 8 and 9 of Title 15.

Executive Documents

Transfer of Functions

See note set out under section 1763 of this title.

¹ So in original. Probably should be followed by "209".

§1771. Coordination of applications

Applicants before Federal departments and agencies other than the Department of the Interior or Agriculture seeking a license, certificate, or other authority for a project which involve a right-of-way over, upon, under, or through public land or National Forest System lands must simultaneously apply to the Secretary concerned for the appropriate authority to use public lands or National Forest System lands and submit to the Secretary concerned all information furnished to the other Federal department or agency.

(Pub. L. 94–579, title V, §511, Oct. 21, 1976, 90 Stat. 2782.)

Executive Documents

Transfer of Functions

See note set out under section 1763 of this title.

§1772. Vegetation managment,¹ facility inspection, and operation and maintenance relating to electric transmission and distribution facility rights of way

(a) Definitions

In this section:

(1) Hazard tree

The term "hazard tree" means any tree or part thereof (whether located inside or outside a right-of-way) that has been designated, prior to tree failure, by a certified or licensed arborist or forester under the supervision of the Secretary concerned or the owner or operator of a transmission or distribution facility to be—

(A) dead, likely to die within the routine vegetation management cycle, or likely to fail within the routine vegetation management cycle; and

(B) if the tree or part of the tree failed, likely to—

(i) cause substantial damage or disruption to a transmission or distribution facility; or

(ii) come within 10 feet of an electric power line.

(2) Owner; operator

The terms "owner" and "operator" include contractors or other agents engaged by the owner or operator of an electric transmission or distribution facility.

(3) Plan

The term "plan" means a vegetation management, facility inspection, and operation and maintenance plan that—

(A) is prepared by the owner or operator of 1 or more electric transmission or distribution facilities to cover 1 or more electric transmission and distribution rights-of-way; and

(B) provides for the long-term, cost-effective, efficient, and timely management of facilities and vegetation within the width of the right-of-way and abutting Federal land, including hazard trees, to enhance electric reliability, promote public safety, and avoid fire hazards.

(4) Secretary concerned

The term "Secretary concerned" means—

(A) the Secretary, with respect to public lands; and

(B) the Secretary of Agriculture, with respect to National Forest System land.

(b) Guidance

(1) In general

To enhance the reliability of the electric grid and reduce the threat of wildfire damage to, and wildfire caused by vegetation-related conditions within, electric transmission and distribution rights-of-way and abutting Federal land, including hazard trees, the Secretary concerned shall issue and periodically update guidance to ensure that provisions are appropriately developed and implemented for utility vegetation management, facility inspection, and operation and maintenance of rights-of-way, regardless of the means by which the rights-of-way are established (including by grant, special use authorization, and easement).

(2) Limitation

The guidance issued under paragraph (1) shall be compatible with mandatory reliability standards established by the Electric Reliability Organization.

(3) Considerations

The guidance issued under paragraph (1) shall take into account—

(A) all applicable law, including fire safety and electric system reliability requirements (including reliability standards established by the Electric Reliability Organization under section 824o of title 16); and

(B) the Memorandum of Understanding on Vegetation Management for Powerline Rights-of-Way between the Edison Electric Institute, Utility Arborist Association, the Department of the Interior, the Department of Agriculture, and the Environmental Protection Agency signed in 2016.

(4) Requirements

The guidance issued under paragraph (1) shall—

(A) be developed in consultation with the owners of transmission and distribution facilities that hold rights-of-way;

(B) seek to minimize the need for case-by-case approvals for—

(i) routine vegetation management, facility inspection, and operation and maintenance activities; and

(ii) utility vegetation management activities that are necessary to control hazard trees; and

(C) provide for prompt and timely review of requests to conduct vegetation management activities that require approval of the Secretary concerned, especially activities requiring expedited or immediate action.

(c) Vegetation management, facility inspection, and operation and maintenance plans

(1) Development and submission

Consistent with subsection (b), the Secretary concerned shall provide owners and operators of electric transmission or distribution facilities located on public lands and National Forest System land, as applicable, with the option to develop and submit a plan.

(2) ERO standards

Owners and operators subject to mandatory reliability standards established by the Electric Reliability Organization (or superseding standards) may use those standards as part of the plan.

(3) Plan requirements

A plan developed under paragraph (1) shall—

(A) identify the applicable transmission or distribution facilities to be maintained;

(B) take into account operations and maintenance plans for the applicable transmission or distribution line;

(C) describe the vegetation management, inspection, and operation and maintenance methods that may be used to comply with all applicable law, including fire safety requirements and reliability standards established by the Electric Reliability Organization;

(D) include schedules for—

(i) the applicable owner or operator to notify the Secretary concerned about routine and major maintenance;

(ii) the applicable owner or operator to request approval from the Secretary concerned about undertaking routine and major maintenance; and

(iii) the Secretary concerned to respond to a request by an owner or operator under clause (ii); and

(E) describe processes for—

(i) identifying changes in conditions; and

(ii) modifying the approved plan, if necessary.

(4) Review and approval process

(A) In general

The Secretary concerned shall jointly develop a consolidated and coordinated process for the review and approval of plans submitted under paragraph (1) that—

(i) includes timelines and benchmarks for—

(I) the submission of agency comments on the plans and schedules for final decision; and

(II) the timely review of modifications of the plans in cases in which modifications are necessary;

(ii) is consistent with applicable law; and ¹

(iii) includes a process for modifications to a plan in a prompt manner if changed conditions necessitate a modification to a plan; and

(iv) ensures, to the maximum extent practicable, a prompt review and approval process not to exceed 120 days.

(B) Plan modification

Upon reasonable advance notice to an owner or operator of an electric transmission or distribution facility of any changed conditions that warrant a modification to a plan, the Secretary concerned shall—

(i) provide an opportunity for the owner or operator to submit a proposed plan modification, consistent with the process described under subparagraph (A)(iii), to address the changed condition identified by the Secretary concerned;

(ii) consider the proposed plan modification consistent with the process described under paragraph (4)(A); and

(iii) allow the owner or operator to continue to implement any element of the approved plan that does not directly and adversely affect the condition precipitating the need for modification.

(5) Categories of actions not requiring environmental analysis

With respect to the development and approval of plans submitted under paragraph (1), as well as with respect to actions carried out under such plans, the Secretary concerned shall identify categories of actions for which neither an environmental impact statement nor an environmental assessment shall be required under section 1508.4 of title 40, Code of Federal Regulations (or a successor regulation).

(d) Certain owners and operators

(1) In general

The owner or operator of an electric transmission or distribution facility that is not subject to the mandatory reliability standards established by the Electric Reliability Organization or that sold less than or equal to 1,000,000 megawatt hours of electric energy for purposes other than resale during each of the 3 calendar years immediately preceding March 23, 2018, may enter into an agreement with the Secretary concerned in lieu of a plan under subsection (c).

(2) Minimum requirements

The Secretary concerned shall ensure that the minimum requirements for an agreement under paragraph (1)—

(A) reflect the relative financial resources of the applicable owner or operator compared to other owners or operators of an electric transmission or distribution facility;

(B) include schedules as described in subsection (c)(3)(D);

(D) comply with applicable law.

(e) Emergency conditions

If vegetation or hazard trees have contacted or present an imminent danger of contacting an electric transmission or distribution line from within or adjacent to an electric transmission or distribution right-of-way, the owner or operator of the electric transmission or distribution lines—

(1) may prune or remove the vegetation or hazard tree—

(A) to avoid the disruption of electric service; and

(B) to eliminate immediate fire and safety hazards; and

(2) shall notify the appropriate local agent of the Secretary concerned not later than 1 day after the date of the response to emergency conditions.

(f) Activities that require approval

(1) In general

Except as provided under paragraph (3), the owner or operator of an electric transmission or distribution facility may conduct vegetation management activities that require approval of the Secretary concerned in accordance with a plan approved under subsection (c) or an agreement entered into under subsection (d) only with the approval of the Secretary concerned.

(2) Requirement to respond

The Secretary concerned shall respond to a request for approval to conduct vegetation management activities in accordance with the applicable schedules in a plan approved under subsection (c) or an agreement entered into under subsection (d).

(3) Authorized activities

The owner or operator of an electric transmission or distribution facility may conduct vegetation management activities that require approval of the Secretary concerned in accordance with a plan approved under subsection (c) or an agreement entered into under subsection (d) without the approval of the Secretary concerned if—

(A) the owner or operator submitted a request to the Secretary concerned in accordance with the applicable schedule in a plan approved under subsection (c) or an agreement entered into under subsection (d);

(B) the vegetation management activities, including the removal of hazard trees, proposed in the request under subparagraph (A) are in accordance with a plan approved under subsection (c) or an agreement entered into under subsection (d); and

(C) the Secretary concerned fails to respond to the request under subparagraph (A) in accordance with the applicable schedule in a plan approved under subsection (c) or an agreement entered into under subsection (d).

(g) Liability

(1) In general

The Secretary concerned shall not impose strict liability for damages or injury resulting from—

(A) the Secretary concerned unreasonably withholding or delaying—

(i) approval of a plan under subsection (c); or

(ii) entrance into an agreement under subsection (d); or

(B) the Secretary concerned unreasonably failing to adhere to an applicable schedule in a plan approved under subsection (c) or an agreement entered into under subsection (d).

(2) Damages

For the period ending 10 years after March 23, 2018, the Secretary concerned shall not impose strict liability in an amount greater than $500,000 per incident for damages or injury resulting from activities conducted by an owner or operator in accordance with an approved agreement under subsection (d).

(3) Rule of construction

Nothing in paragraph (2) shall be construed to effect ¹ any liability imposed by the Secretary concerned under section 251.56(d) of title 36, Code of Federal Regulations (as in effect on March 23, 2018) and section 2807.12 of title 43, Code of Federal Regulations (as in effect on March 23, 2018), for activities conducted by an owner or operator in accordance with an approved plan under subsection (c).

(h) Reporting requirement

(1) Activities that require approval

The Secretary concerned shall report requests and actions made under subsection (f) annually on the website of the Secretary concerned.

(2) Liability

Not later than four years after March 23, 2018, the Secretary concerned shall prepare and submit a report to the Committee on Natural Resources of the House of Representatives and the Committee on Energy and Natural Resources of the Senate that describes the effect on the Treasury of the strict liability limitation established by subsection (g)(2).

(i) Training and guidance

In consultation with the electric utility industry, the Secretary concerned is encouraged to develop a program to train personnel of the Department of the Interior and the Forest Service involved in vegetation management decisions relating to electric transmission and distribution facilities to ensure that the personnel—

(1) understand electric system reliability requirements as the requirements relate to vegetation management of transmission and distribution rights-of-way on Federal land, including reliability standards established by the Electric Reliability Organization and fire safety requirements;

(2) assist owners and operators of electric transmission and distribution facilities in complying with applicable electric reliability and fire safety requirements;

(3) encourage and assist willing owners and operators of electric transmission and distribution facilities to incorporate on a voluntary basis vegetation management practices to enhance habitats and forage for pollinators and for other wildlife if the practices are compatible with the integrated vegetation management practices necessary for reliability and safety; and

(4) understand how existing and emerging unmanned technologies can help electric utilities, the Federal Government, State and local governments, and private landowners—

(A) to more efficiently identify vegetation management needs;

(B) to reduce the risk of wildfires; and

(j) Implementation

The Secretary concerned shall—

(1) not later than 1 year after March 23, 2018, propose regulations, or amend existing regulations, to implement this section; and

(2) not later than 2 years after March 23, 2018, finalize regulations, or amend existing regulations, to implement this section.

(k) Existing vegetation management, facility inspection, and operation and maintenance plans

Nothing in this section requires an owner or operator to develop and submit a new plan under this section if a plan consistent with this section has already been approved by the Secretary concerned before March 23, 2018.

(Pub. L. 94–579, title V, §512, as added Pub. L. 115–141, div. O, title II, §211(a), Mar. 23, 2018, 132 Stat. 1068.)

Statutory Notes and Related Subsidiaries

Utility Infrastructure Rights-of-Way Vegetation Management Pilot Program

Pub. L. 115–334, title VIII, §8630, Dec. 20, 2018, 132 Stat. 4865, provided that:

"(a) Definitions.—In this section:

"(1) National forest system land.—

"(A) In general.—The term 'National Forest System land' means land within the National Forest System, as defined in section 11(a) of the Forest and Rangeland Renewable Resources Planning Act of 1974 (16 U.S.C. 1609(a)).

"(B) Exclusions.—The term 'National Forest System land' does not include—

"(i) a National Grassland; or

"(ii) a land utilization project on land designated as a National Grassland and administered pursuant to sections 31, 32, and 33 of the Bankhead-Jones Farm Tenant Act (7 U.S.C. 1010, 1011, 1012).

"(2) Passing wildfire.—The term 'passing wildfire' means a wildfire that originates outside of a right-of-way.

"(3) Pilot program.—The term 'pilot program' means the pilot program established by the Secretary [of Agriculture] under subsection (b).

"(4) Right-of-way.—The term 'right-of-way' means a special use authorization issued by the Forest Service allowing the placement of utility infrastructure.

"(5) Utility infrastructure.—The term 'utility infrastructure' means electric transmission lines, natural gas infrastructure, or related structures.

"(b) Establishment.—

"(1) In general.—To encourage owners or operators of rights-of-way on National Forest System land to partner with the Forest Service to voluntarily conduct vegetation management projects on a proactive basis to better protect utility infrastructure from potential passing wildfires, the Secretary may establish a limited, voluntary pilot program, in the manner described in this section, to conduct vegetation management projects on National Forest System land adjacent to those rights-of-way.

"(2) Application.—The pilot program shall not apply in a right-of-way described in paragraph (1).

"(c) Eligible Participants.—

"(1) In general.—A participant in the pilot program shall be the owner or operator of a right-of-way on National Forest System land.

"(2) Selection priority.—In selecting participants for the pilot program, the Secretary shall give priority to an owner or operator of a right-of-way that has developed the utility infrastructure protection prescriptions of the owner or operator in coordination with Forest Service fire scientists or fire managers.

"(d) Vegetation Management Projects.—

"(1) In general.—A vegetation management project conducted under the pilot program shall involve only limited vegetation management activities that—

"(A) shall create the least ground disturbance and least disturbance to wildlife reasonably necessary to protect utility infrastructure from passing wildfires based on applicable models, including Forest Service fuel models;

"(B) may include thinning and treatment of surface fuels, ladder fuels, and activity fuels to create or maintain shaded fuel breaks or other appropriate measures recommended by Forest Service fire scientists or fire managers;

"(C)(i) shall only be conducted on National Forest System land; and

"(ii) shall not—

"(I) extend for more than 150 feet from the electric transmission line for which the applicable participant has a right-of-way; or

"(II) comprise an overall width, for both sides of that electric transmission line, that totals more than 200 feet; and

"(D) shall not be conducted on—

"(i) a component of the National Wilderness Preservation System;

"(ii) a designated wilderness study area;

"(iii) an inventoried roadless area; or

"(iv) Federal land on which, by Act of Congress or Presidential proclamation, the removal of vegetation is restricted or prohibited.

"(2) Approval.—Each vegetation management project described in paragraph (1) shall be subject to approval by the Forest Service in accordance with this section.

"(3) Fire prevention.—In carrying out a vegetation management project under the pilot program, a participant shall adhere to—

"(A) Forest Service regulations relating to spark arresting devices;

"(B) Forest Service regulations limiting and prohibiting certain activities conducted by contractors in an area, based on weather conditions and fire danger;

"(C) Forest Service regulations that apply to contractors removing vegetation on National Forest System land pursuant to a timber sale or stewardship contract, including regulations relating to—

"(i) protection of residual trees and timber damaged by contractors;

"(ii) protection measures needed for plants, animals, cultural resources, and cave resources;

"(iii) streamcourse protection and erosion control;

"(iv) fire plans, precautions, and precautionary periods;

"(v) fire suppression costs; and

"(vi) employment of eligible workers; and

"(D) State regulations relating to the prevention of wildfires and contractors removing vegetation.

"(4) Treatment of slash.—In carrying out a vegetation management project under the pilot program, a participant shall treat any activity fuels in a manner that—

"(A) is satisfactory to the Forest Service;

"(B) does not result in a fire hazard; and

"(C) reduces the risk of an insect or disease outbreak.

"(e) Project Costs.—

"(1) In general.—Except as provided in paragraph (2) and subsection (f)(2), a participant in the pilot program shall be responsible for all costs, as determined by the Secretary, incurred in participating in the pilot program.

"(2) Federal funding.—The Secretary may contribute funds for a vegetation management project conducted under the pilot program if the Secretary determines that the contribution is in the public interest.

"(f) Liability.—

"(1) Activities within rights-of-way.—Participation in the pilot program shall not affect any legal obligations or liability standards that arise under the right-of-way for activities in the right-of-way.

"(2) Wildfires.—

"(A) Operations fires.—

"(i) In general.—With respect to fire suppression costs for a wildfire caused by the operations of a participant in the pilot program (other than an operation or activity of a participant described in subparagraph (B) or (C)), the participant shall reimburse the Forest Service for those costs, subject to a maximum dollar amount to which the Forest Service and the participant shall agree prior to the commencement of the project.

"(ii) Credit for actions by participants.—

"(I) In general.—If a participant in the pilot program provides actions, supplies, or equipment for use to suppress a wildfire described in clause (i) or at the request of the Forest Service, the cost of those actions, supplies, or equipment shall be credited toward the maximum dollar amount described in that clause.

"(II) Reimbursement.—If the actual cost of a participant described in subclause (I) exceeds the maximum dollar amount described in clause (i), the Forest Service shall reimburse the participant for the excess.

"(B) Negligent fires.—

"(i) In general.—Subject to clause (ii), if a wildfire is caused by the negligence of a participant in the pilot program, or an agent of the participant, including a wildfire caused by smoking by persons engaged in the operations of the participant, the participant shall bear the cost of damages to Forest Service resources and the fire suppression costs resulting from the wildfire.

"(ii) Limitation.—Except as provided in clause (iii), the costs borne by a participant under clause (i) shall not exceed $500,000.

"(iii) Failure to comply.—If the start or spread of a wildfire described in clause (i) is caused by the failure of the participant to comply with specific safety requirements expressly imposed by the Forest Service as a condition of conducting a vegetation management project under the pilot program or by this section, the participant shall bear the cost of damages to Forest Service resources and the fire suppression costs resulting from the wildfire.

"(C) Exceptions.—This paragraph shall not apply in the case of a wildfire caused by the felling of a tree by a participant in the pilot program, or an agent of the participant, onto an electric transmission line.

"(3) Effect.—Nothing in this subsection relieves a participant in the pilot program of any liabilities to which the participant is subject—

"(A) under State laws; or

"(B) with regard to damages to property other than Forest Service property.

"(g) Implementation.—

"(1) In general.—Except as provided in paragraph (3), the Secretary shall use the authority of the Secretary under other laws (including regulations) to carry out the pilot program.

"(2) Compliance with existing laws.—Except as provided in paragraph (3), a vegetation management project under the pilot program shall be—

"(A) consistent with the applicable land management plan for the area in which the project is located; and

"(B) carried out in accordance with all applicable laws, including the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).

"(3) Modification of regulations.—In order to implement the pilot program in an efficient and expeditious manner, the Secretary may waive or modify specific provisions of the Federal Acquisition Regulation, including waivers or modifications to allow for the formation of contracts or agreements on a noncompetitive basis.

"(h) Treatment of Proceeds.—Notwithstanding any other provision of law, the Secretary may—

"(1) retain any funds provided to the Forest Service by a participant in the pilot program; and

"(2) use funds retained under paragraph (1), in such amounts as may be appropriated, to carry out the pilot program.

"(i) Report to Congress.—Not later than December 31, 2020, and 2 years thereafter, the Secretary shall submit a report describing the status of the pilot program and vegetation management projects conducted under the pilot program to—

"(1) the Committees on Agriculture, Nutrition, and Forestry and Energy and Natural Resources of the Senate; and

"(2) the Committees on Agriculture and Natural Resources of the House of Representatives.

"(j) Duration.—The authority to carry out the pilot program, including any vegetation management project conducted under the pilot program, expires on October 1, 2023."

¹ So in original. Probably should be "management,".

¹ So in original.