`[Federal Register Volume 89, Number 238 (Wednesday, December 11, 2024)]
[Rules and Regulations]
[Pages 99732-99750]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-28367]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 29

[Docket No. FWS-HQ-NWRS-2019-0017; FF09R50000-XXX-FVRS3451900000]
RIN 1018-BD78


Permitting of Rights-of-Way Across National Wildlife Refuges and 
Other U.S. Fish and Wildlife Service-Administered Lands

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are revising 
our process for permitting of rights-of-way across National Wildlife 
Refuge System lands and other Service-administered lands. By aligning 
Service processes more closely with those of other Department of the 
Interior bureaus, to the extent practicable and consistent with 
applicable law, we will reduce the amount of time the Service requires 
to process applications for rights-of-way across Service-managed lands. 
We will require a preapplication meeting and use of a standard 
application, allow electronic submission of applications, and provide 
the Service with additional flexibility, as appropriate, to determine 
the fair market value or fair market rental value of rights-of-way 
across Service-managed lands. Additionally, we are implementing new 
permit terms and conditions and other regulatory changes.

DATES: This rule is effective January 10, 2025.

[[Page 99733]]


ADDRESSES: This final rule, its supporting documents, and the comments 
we received on the proposed rule (86 FR 5120, January 19, 2021) and 
revised proposed rule (88 FR 47442, July 24, 2023) are available at 
https://www.regulations.gov at Docket No. FWS-HQ-NWRS-2019-0017.
    Information collection requirements: Written comments and 
suggestions on the information collection requirements may be submitted 
at any time to the Service Information Collection Clearance Officer, 
U.S. Fish and Wildlife Service, 5275 Leesburg Pike, MS: PRB (JAO/3W), 
Falls Church, VA 22041-3803 (mail); or [email protected] (email). 
Please reference ``OMB Control Number 0596-0249'' in the subject line 
of your comments.

FOR FURTHER INFORMATION CONTACT: Ken Fowler, U.S. Fish and Wildlife 
Service, MS: NWRS, 5275 Leesburg Pike, Falls Church, VA 22041; (703) 
358-1876. Individuals in the United States who are deaf, deafblind, 
hard of hearing, or have a speech disability may dial 711 (TTY, TDD, or 
TeleBraille) to access telecommunications relay services. Individuals 
outside the United States should use the relay services offered within 
their country to make international calls to the point of contact in 
the United States.

SUPPLEMENTARY INFORMATION:

Background

    The mission of the U.S. Fish and Wildlife Service (Service) is 
working with others to conserve, protect, and enhance fish, wildlife, 
plants, and their habitats for the continuing benefit of the American 
people. The Service has some amount of management responsibility for 
more than 96 million terrestrial acres as well as an additional 760 
million acres of submerged lands in marine national monuments. The 96 
million acres of terrestrial land includes:
     approximately 89 million acres where the Service is the 
principal land manager and permitting authority;
     nearly 4.9 million acres of conservation easements on 
private lands, where landowners are the principal land managers but the 
Service has a permitting role when a proposed use will affect the 
United States' real property interest;
     more than 1.7 million acres of public land, where another 
Federal agency is the principal land manager and permitting authority 
but where the Service has some management responsibility through an 
agreement with another agency; and
     approximately 775,000 acres under a temporary lease or 
agreement where another entity is the permitting authority.
    Of the 89 million acres of terrestrial land principally managed by 
the Service, 76.8 million acres are in Alaska, 12.2 million acres are 
in the lower 48 States, and 50,000 acres are in Hawaii. The vast 
majority of these acres are part of the National Wildlife Refuge System 
(Refuge System), the mission of which is to administer a national 
network of lands and waters for the conservation, management, and where 
appropriate, restoration of the fish, wildlife, and plant resources and 
their habitats within the United States for the benefit of present and 
future generations of Americans (16 U.S.C. 668dd(a)(2)). The total also 
includes approximately 21,000 acres of public land in the National Fish 
Hatchery System, which the Service manages for the propagation and 
distribution of fish and other aquatic animal life.
    The 89 million acres of terrestrial land includes more than 20 
million acres of designated wilderness that the Service manages for 
``the preservation of their wilderness character'' in accordance with 
the Wilderness Act of 1964 (16 U.S.C. 1131 et seq.). Subject to 
existing private rights, and special provisions included in specific 
wilderness-designation statutes, 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 requirements for the administration of the 
area for Wilderness Act purposes. The Alaska National Interest Lands 
Conservation Act (ANILCA; Pub. L. 96-487; 16 U.S.C. 3101 et seq.) 
includes provisions that allow for transportation and utility system 
uses within conservation system units, including designated wilderness.

Statutory Authority

    Refuge System lands and waters are managed according to the 
authorities of the National Wildlife Refuge System Administration Act 
of 1966 (Administration Act; 16 U.S.C. 668dd-668ee), as amended by the 
National Wildlife Refuge System Improvement Act of 1997 (Improvement 
Act; Pub. L. 105-57), and ANILCA. For lands in Alaska, the Improvement 
Act specifies that ANILCA provisions prevail in any situation in which 
there is a conflict between any provision in the Improvement Act and 
any provision of ANILCA. If a right-of-way across Refuge System lands 
is authorized by ANILCA (see 16 U.S.C. 3162(B)), then the Service must 
follow the procedures in 43 CFR part 36 when permitting the right-of-
way and follow other applicable Refuge System laws and regulations 
where they do not conflict with ANILCA.
    The Administration Act, as amended by the Improvement Act, 
authorizes the Service to permit a new use, or expand, renew, or extend 
an existing use, of a refuge only when the Service determines it is a 
compatible use. The Improvement Act defines a ``compatible use'' as a 
wildlife-dependent recreational use or any other use of a refuge that, 
in the sound professional judgment of the Service Director, will not 
materially interfere with or detract from the fulfillment of the 
mission of the Refuge System or the purpose(s) of the refuge.

Compatible Use Determinations

    A ``compatibility determination'' is a written determination, 
typically signed and dated by the Refuge Manager, that an existing or 
new use of a refuge is compatible with the Refuge System mission and 
the purpose(s) of the refuge. Currently, there are more than 570 
national wildlife refuges, and each refuge has different establishing 
authorities, purposes, habitat types, wildlife species, and public 
uses, which can result in different compatibility determinations for 
the same use. The Improvement Act required the Service to issue 
regulations establishing a process for determining whether a proposed 
use is a compatible use; these regulations are set forth in title 50 of 
the Code of Federal Regulations (CFR) in parts 25 and 26. The 
Improvement Act authorizes the Service to permit a right-of-way across 
Refuge System land only when the right-of-way is a compatible use.
    The Improvement Act's compatibility requirements apply only to 
Service permitting of rights-of-way across Refuge System lands and do 
not apply to other Service lands, except in the case of National Fish 
Hatchery System lands, where, by regulation at 50 CFR 70.6, the Refuge 
compatibility requirements in 50 CFR part 26 are equally applicable to 
fish hatcheries, and at 50 CFR 70.7, where the right-of-way regulations 
are equally applicable to fish hatcheries. The Service processes 
applications for other rights-of-way across lands outside the Refuge 
System and National Fish Hatchery System under the applicable authority 
cited at 43 CFR part 2800, and these lands are not subject to the 
Improvement Act's compatibility requirement.
    The Administration Act authorizes the Secretary of the Interior, 
acting

[[Page 99734]]

through the Service Director, to issue a right-of-way permit for a 
compatible use across Refuge System lands only if the applicant pays 
the Service the fair market value or fair market rental value of the 
right-of-way, unless the applicant is exempt from such payment by any 
other provision of Federal law, including certain provisions of ANILCA. 
In addition, before issuing a right-of-way permit, the Service must 
assess the effects of the proposed use, as required by the National 
Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321 et seq.); the 
Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. 1531 et 
seq.); the National Historic Preservation Act of 1966 (NHPA; 54 U.S.C. 
300101 et seq.); and other applicable laws and Executive orders.

Existing Rights-of-Way

    The regulations at 50 CFR 26.41 state that, for existing rights-of-
way, the Service will not make a compatibility determination and will 
deny any request for maintenance of an existing right-of-way that will 
affect a unit of the Refuge System, unless:
     the design adopts appropriate measures to avoid resource 
impacts and includes provisions to ensure no net loss of habitat 
quantity and quality;
     restored or replacement areas identified in the design are 
afforded permanent protection as part of the national wildlife refuge 
or wetland management district affected by the maintenance; and
     all restoration work is completed by the applicant prior 
to any title transfer or recording of the easement, if applicable.
    In accordance with the Improvement Act and 50 CFR 25.21, in the 
case of any right-of-way permit issued on or before November 17, 2000, 
for a term of more than 10 years (such as an electric utility right-of-
way), the Service will not reevaluate whether the use is a compatible 
use during the permit term so long as the right-of-way holder is in 
compliance with all the terms and conditions of the permit. Prior to 
extending or renewing such long-term uses at the expiration of the 
authorization, the Service will make a new compatibility determination, 
but such compatibility determinations will base their analysis on the 
existing conditions with the use in place, not from a pre-use 
perspective. All permits issued after November 17, 2000, must include 
terms and conditions that specifically allow for modifications to the 
terms and conditions, if necessary to ensure compatibility. For older 
permits that do not include this stipulation, the Service may request 
permit modifications to ensure that a use remains a compatible use. All 
right-of-way permits issued by the Service include language allowing 
the Service to terminate the right-of-way permit if the permit holder's 
use violates the permit terms and conditions.
    Additionally, this final rule and the Improvement Act's 
compatibility requirement do not apply to permanent rights and rights-
of-way in existence prior to land acquisition by the United States, 
including prior existing highway rights-of-way held by State and local 
units of government, except in situations where there is a proposed 
expansion, rerouting, or additional use of a right-of-way that will 
encumber Refuge System lands. The Improvement Act requires that all 
uses of Refuge System lands be compatible with the purpose(s) for which 
those areas were established and the mission of the Refuge System, and 
activities not authorized by a preexisting right-of-way are subject to 
50 CFR 26.41 and the regulations in this final rule.
    The Service may not authorize an expansion, rerouting, or 
additional use of a right-of-way that will encumber Refuge System lands 
unless the use is compatible with the purpose(s) for which those areas 
were established and the Refuge System mission.

Amendments to the Right-of-Way Regulations

    On January 19, 2021, we published in the Federal Register (86 FR 
5120) a proposed rule to revise and streamline the Service's process 
for permitting of rights-of-way across National Wildlife Refuge System 
lands and other Service-administered lands, to the extent practicable 
and consistent with applicable law. On July 24, 2023, we published in 
the Federal Register (88 FR 47442) a revised proposed rule based on 
feedback we received on the original proposed rule. For a description 
of the substantive changes proposed to the regulations in 50 CFR part 
29, subpart B, see the January 19, 2021, proposed rule (86 FR 5120) and 
the July 24, 2023, revised proposed rule (88 FR 47442).

Summary of Comments and Responses

    We accepted public comments on the January 19, 2021, proposed rule 
(86 FR 5120) for 60 days, ending March 22, 2021. By that date, we 
received 11 comments. Three comments suggested that the Service make no 
changes to its regulations to streamline right-of-way permitting. 
Overall, nine comments suggested no additional changes to those we had 
proposed. We discussed the remaining comments in our July 24, 2023, 
revised proposed rule (88 FR 47442).
    We accepted public comments on the revised proposed rule for 30 
days, ending August 23, 2023. We received comments from 13 different 
individuals or organizations. Two individuals or organizations 
suggested the Service make no changes to its regulations to streamline 
right-of-way permitting. Two others suggested the Service streamline 
its permitting process only when doing so would benefit transmission of 
renewable energy. We discuss the remaining comments by topic, below.
    Comment (1): The Center for Biological Diversity and another 
commenter expressed opposition to the changes in the proposed rule and 
urged the Service to withdraw the proposed rule, but, if the Service 
did not, these commenters suggested that the Service not finalize the 
rule until the Service completes a programmatic consultation under the 
ESA.
    Our response: No regulatory revisions in this rule will change the 
types of uses that the Service authorizes across Service-managed lands. 
The rule provides more clarity to applicants about the right-of-way 
application process and streamlines inefficient processes for 
applicants and the Service. Given that this rule has no impact on 
authorized uses, a programmatic consultation to determine cumulative 
impacts is not appropriate. Where appropriate, the Service will conduct 
the appropriate ESA consultation when processing individual right-of-
way permit applications. We did not make any changes to the proposed 
rule as a result of these comments.
    Comment (2): The Edison Electric Institute (EEI) requested that the 
Service ensure that electric infrastructure rights-of-way remain a 
compatible use on Refuge System lands, and EEI requested guidance 
concerning the submittal of facility construction plans and vegetation 
management plans.
    Our response: Consistent with the final compatibility regulations 
implementing the National Wildlife Refuge System Improvement Act, 
published at 65 FR 62458 (October 18, 2000), it is not the Service's 
intent to restrict or eliminate previously permitted rights-of-way for 
infrastructure. However, in accordance with 50 CFR 25.21, the Service 
may seek modifications to the terms and conditions of existing right-
of-way permits if necessary to ensure that a permitted use remains a 
compatible use.
    With respect to such preexisting uses, in this final rule, we added 
a new section, Sec.  29.12, Preexisting uses, to clarify that these 
regulations have no

[[Page 99735]]

impact on activities explicitly authorized by a permanent right or 
right-of-way obtained prior to acquisition by the United States, such 
as existing rights-of-way for power lines and other electrical 
infrastructure. However, any proposed expansion, rerouting, or 
additional use of a right-of-way that will encumber Refuge System lands 
must be in accordance with the requirements and procedures of 50 CFR 
25.21 and 26.41(c).
    Before the Service will process a request for a right-of-way 
permit, the Service requires a preliminary site and facility 
construction plan for a proposed right-of-way that requires 
construction. A preliminary site and facility construction plan is an 
attachment required by the Standard Form 299, Application for 
Transportation, Utility Systems, Telecommunications and Facilities on 
Federal Lands and Property (SF-299), which applicants must submit to 
request a right-of-way permit. Before the Service can issue a right-of-
way permit or renewal, the Service also requires a vegetation 
management plan when vegetation will be disturbed by construction, 
operation, or maintenance of the right-of-way. The contents of facility 
construction plans and vegetation management plans will vary depending 
on the scope and location of the proposed right-of-way and the wildlife 
habitat and species impacted. During a preapplication consultation for 
a right-of-way, a modification of an existing right-of-way, or a 
renewal, the Service can provide guidance to an applicant about 
information that must be covered by these plans. We did not make any 
changes to the final rule as a result of EEI's comments pertaining to 
these plans.
    Comment (3): The Energy and Wildlife Action Coalition (EWAC) 
suggested that the Service revise proposed Sec.  29.21-3, 
Compatibility-determination requirement, by adding ``or to activities 
authorized by preexisting rights-of-way'' after ``privately owned 
minerals,'' to make the language of the regulation consistent with the 
preamble.
    Our response: We concur with EWAC's suggestion to make the language 
of the regulation consistent with the preamble of the proposed rule 
about how the Service handles preexisting rights-of-way. Therefore, in 
addition to adding the new section, Sec.  29.12, as discussed above, to 
clarify that these regulations have no impact on permanent rights and 
rights-of-way in existence prior to acquisition by the United States, 
we also revised proposed Sec.  29.21-3 (now at Sec.  29.13 in this 
final rule) to add the words ``or to activities explicitly authorized 
by a permanent right or right-of-way obtained prior to acquisition by 
the United States'' after ``privately owned minerals'' in this final 
rule.
    Comment (4): EWAC suggested that, since a compatibility 
determination is a threshold requirement, the Service's implementing 
regulations should limit the information the agency initially requests 
to the information it requires to make a compatibility determination. 
Consistent with that idea, EWAC suggested that the Service be more 
flexible with respect to the amount of environmental information that 
must accompany a right-of-way application.
    Our response: The Service typically requires an environmental 
analysis before we may make a final determination that a proposed use 
is compatible with the mission of the Refuge System and the purpose(s) 
of the refuge. However, the Service may require less information to 
ascertain whether or not a proposed use would conflict with the goals 
or objectives in an approved refuge management plan (e.g., 
comprehensive conservation plan, comprehensive management plan, or 
step-down management plan), which describe how the Service will 
accomplish the purpose(s) of the refuge. Such a conflict would require 
changes to the proposed use before it could potentially be found 
compatible with the purpose(s) of the refuge.
    We concur with EWAC that the Service's implementing regulations 
should limit the information the agency initially requests to the 
information it requires to make a compatibility determination, and that 
an applicant should not prepare an environmental analysis to satisfy 
NEPA requirements until after the applicant has discussed the proposed 
use with the Service and provided basic environmental information to 
inform discussions with the Service. Therefore, we revised proposed 
Sec.  29.21-4 (now at Sec.  29.16, Right-of-way permit application, in 
this final rule), to require supplemental environmental information in 
lieu of an environmental analysis with initial application submission. 
Consistent with this change, we added the new section, Sec.  29.15, 
General application procedures, which summarizes the steps in the 
right-of-way application process and clarifies that the Service will 
deem an application to be complete, and notify the applicant of such, 
after the Service has determined that the provided information is 
sufficient for the agency to make a compatibility determination and 
comply with NEPA. This section also states that the Service will notify 
the applicant if additional information is required for a complete 
application.
    Comment (5): EWAC suggested that, since NEPA documents are 
routinely developed by third-party contractors in consultation with the 
Service, required upfront payments for application processing should 
not include the estimated cost of preparing environmental review 
documents to satisfy NEPA requirements.
    Our response: We concur, and we revised proposed Sec.  29.21-6 (now 
at Sec.  29.18 in this final rule) to clarify that the Service's 
required upfront payments for application processing will not include 
the cost of preparing environmental review documents to satisfy NEPA 
requirements when the applicant will assume responsibility for the 
costs of that work.
    Comment (6): The State of Utah, Public Lands Policy Coordinating 
Office, suggested that the regulations include language similar to that 
included in the preamble of the proposed rule stating that there will 
be ``no impact on prior existing highway rights-of-way held by State 
and local units of government on Service-administered land.''
    Our response: We concur with the State of Utah's suggestion to make 
the language of the regulations consistent with the preamble of the 
proposed rule. Therefore, as discussed earlier in this final rule, we 
have added a new section, Sec.  29.12, Preexisting uses, to clarify 
that these regulations have no impact on permanent rights-of-way in 
existence prior to acquisition by the United States. Additionally, 
consistent with this change, we revised proposed Sec.  29.21-3, 
Compatibility-determination requirement (now at Sec.  29.13 in this 
final rule), to clarify that no compatibility determination is required 
for activities explicitly authorized by a permanent right or right-of-
way obtained prior to acquisition by the United States.
    Comment (7): The State of Utah, Public Lands Policy Coordinating 
Office, reiterated its concern that, in remote areas, requiring an 
applicant to provide a survey plat prepared by a licensed professional 
land surveyor or another professional licensed by the State will create 
an unnecessary burden. The State reiterated its recommendation that the 
Service waive the requirement for a survey plat when it would be a 
burden for a right-of-way requestor.
    Our response: The Service recognizes the challenges in surveying 
rights-of-way in remote areas. In the final rule, to increase 
flexibility for unique circumstances, we added a provision to allow a 
licensed Service land surveyor to waive the requirement of a survey

[[Page 99736]]

plat for a proposed right-of-way in a remote location if they determine 
that the Global Positioning System (GPS) coordinates and supporting 
location information submitted by the applicant for inclusion in the 
right-of-way permit are adequate to locate the proposed right-of-way 
with minimal risk to the United States.
    Comment (8): The Wireless Infrastructure Association (WIA) 
recommended that the Service clarify that, in situations where tower or 
support infrastructure for wireless communications is owned by a 
neutral host provider that is separate from the entity operating the 
wireless communications equipment, the operator of the wireless 
communications equipment and not the owner of the tower or support 
infrastructure is responsible for compliance with Federal rules and 
requirements related to wireless communication. WIA recommended that 
the Service clarify that proposed Sec.  29.21-8(c)(4) (now at Sec.  
29.20(c)(4) in this final rule) does not apply to communications 
facilities.
    Our response: The Service supports collocation of wireless 
communications sites where possible and when compatible with refuge 
purposes. The proposed Sec.  29.21-8(c)(4) contained contradictory 
text, and in this final rule we clarify at Sec.  29.20(c)(4) that 
collocation is allowed but we require that each collocating entity 
obtain a right-of-way permit.
    Comment (9): The WIA recommended that the Service clarify that, 
where tower or support infrastructure is owned and maintained by an 
organization separate from the entity operating the wireless 
communications equipment, the operator of the wireless communications 
equipment is responsible for complying with the applicable Federal 
rules and procedures for telecommunications sites.
    Our response: The Service concurs that the requirements for 
communications facilities in Sec.  29.20(g) in this final rule 
(formerly at Sec.  29.21-8(g) in the proposed rule) should not apply to 
neutral host providers, also sometimes referred to as tower companies, 
who own and maintain towers or support infrastructure on Service-
managed land but do not operate or maintain wireless communications 
equipment. We revised Sec.  29.20(g) to clarify that requirements for 
communications facilities, including complying with the applicable 
Federal rules and procedures for telecommunications sites, apply to 
entities that operate or maintain wireless communications equipment.
    Comment (10): The Red Cliff Band of Lake Superior Chippewa Indians 
and the Madison Office of the Great Lakes Indian Fish & Wildlife 
Commission requested that the Service include in its regulations a 
permit condition that ensures that the right-of-way permits it issues 
do not impede access to ceded ancestral Tribal lands or the exercise of 
court-affirmed treaty rights.
    Our response: We concur that the right-of-way permits issued by the 
Service should not impede public access or the ability of Tribes to 
exercise court-affirmed treaty rights. Therefore, we revised proposed 
Sec.  29.21-8(d), Terms and conditions required of most permit holders 
(now at Sec.  29.20(d) in this final rule), to clarify that right-of-
way permits issued by the Service will include language ensuring that 
Service-managed lands remain accessible to the public when access does 
not pose a threat to public safety or the environment.
    Comment (11): The State of Alaska suggested that lands located 
within Alaska national wildlife refuges conveyed under the authority of 
ANILCA sections 103(c) and 906(o) are exempted from Service regulations 
by the interim management regulations for Alaska national wildlife 
refuges that published at 46 FR 31818-31834, on June 17, 1981.
    Our response: The interim regulations promulgated in 1981 were 
repealed and superseded by the final rule promulgated in 1986 (51 FR 
44791, December 12, 1986) and thus currently have no legal effect. 
Pursuant to 50 CFR 36.1, which sets forth the regulations for Alaska 
national wildlife refuges, the general National Wildlife Refuge System 
regulations in title 50 CFR are automatically applicable in their 
entirety to the federally owned lands within the boundaries of Alaska 
national wildlife refuges unless stated otherwise in those regulations 
or amended by ANILCA. We did not make any changes to the final rule as 
a result of these comments.
    Comment (12): The State of Alaska requested that the Service exempt 
Alaska from this rule, based on the unique circumstances of Alaska's 
transportation and utility systems, such as the relatively undeveloped 
road system at the time of ANILCA passage, the need to develop roads 
and utilities across Alaska refuge lands to serve lands transferred to 
Native Corporations under the Alaska Native Claims Settlement Act 
(ANCSA), and pipeline right-of-way authorizations other than common 
carrier lines.
    Our response: Pursuant to 50 CFR 36.1, which sets forth the 
regulations for Alaska national wildlife refuges, the general National 
Wildlife Refuge System regulations in title 50 CFR are already 
applicable in their entirety to the federally owned lands within the 
boundaries of Alaska national wildlife refuges unless stated otherwise 
in those regulations or amended by ANILCA. As stated in Sec.  29.21-
1(b) in the proposed rules and Sec.  29.11(b) in this final rule, 
requests for the transportation and utility system rights-of-way 
authorized under ANILCA must be submitted under the authority of 16 
U.S.C. 3161 et seq. and follow the procedures set forth in 43 CFR part 
36. The vast majority of rights-of-way requested from the Service in 
Alaska fall under ANILCA's definition of transportation and utility 
systems in 16 U.S.C. 3162(B) or are otherwise authorized under ANILCA; 
however, any rights-of-way not authorized under ANILCA are subject to 
the Administration Act and its implementing regulations in title 50 
CFR. We did not make any changes to the final rule as a result of these 
comments.
    Comment (13): The State of Alaska suggested that compatibility has 
a different standard under ANILCA, and, under that standard, set forth 
in 43 CFR 36.2(f), a title XI project is ``compatible with the purposes 
for which the unit was established'' if it ``will not significantly 
interfere with or detract from the purposes for which the area was 
established'' [emphasis added]. Therefore, the State suggests, the more 
restrictive compatibility determination and approval process described 
in 50 CFR 26.41(c) should not apply to these rights-of-way.
    Our response: Consistent with 50 CFR 36.1, rights-of-way authorized 
under the Administration Act are subject to regulations in title 50 CFR 
including 50 CFR 25.21(b)(1) and 26.41. We did not make any changes to 
the final rule as a result of these comments.
    Comment (14): The State of Alaska requested that the Service revise 
the regulation's definition of National Wildlife Refuge System lands in 
Alaska to include the list of the types of transportation and utility 
systems authorized in ANILCA section 1102(4)(B) and 43 CFR 36.2(p).
    Our response: We revised the definition of National Wildlife Refuge 
System lands in Alaska in proposed Sec.  29.21-1(b) (now at Sec.  29.11 
in this final rule) to reference the list of ANILCA-authorized 
transportation and utility systems in 16 U.S.C. 3162(B), which is the 
same list in ANILCA section 1102(4)(B) and 43 CFR 36.2(p).
    Comment (15): The State of Alaska suggested that the Service revise

[[Page 99737]]

proposed Sec.  29.21-2, Preapplication meeting, to impose an explicit 
timeframe for preapplication meetings.
    Our response: The Service anticipates developing step-down policy 
for these regulations to provide guidance to Service employees on the 
appropriate timelines for preapplication meetings. Depending on the 
scope of the proposed use, multiple preapplication meetings may be 
appropriate. We did not make any changes to the rule as a result of 
this comment.
    Comment (16): The State of Alaska requested that the Service expand 
the types of oil and gas pipelines that may be authorized by a Regional 
Director to include additional types of pipelines, such as contract 
carrier pipelines. The State also requested that the Service rephrase 
language in the preamble pertaining to ANILCA and the Wilderness Act, 
to avoid potential misunderstanding about where ANILCA allows 
commercial enterprises and permanent roads.
    Our response: We incorporated the State's requested edits into the 
preamble description of the Wilderness Act and ANILCA, to clarify that 
ANILCA includes provisions that allow for transportation and utility 
systems within conservation system units, including designated 
wilderness. At this time, the Service is not prepared to expand the 
types of oil and gas pipelines that a Regional Director may authorize, 
so we did not make that suggested change.

Changes From the Proposed Rules

    As discussed above under Summary of Comments and Responses, in this 
final rule we have made changes to the regulations in the proposed 
rules based on comments we received. Additionally, we made clarifying 
edits to several sections to eliminate potential sources of confusion.
    In this final rule, in response to comments, we added to and 
updated several sections to make them consistent with the preamble of 
the proposed rule, which indicated that the regulations would have no 
impact on prior existing highway rights-of-way held by State and local 
units of government on Service-administered land. We added a new 
section, Sec.  29.12, Preexisting uses, to clarify that these 
regulations have no impact on permanent rights-of-way in existence 
prior to acquisition by the United States, except that, consistent with 
Federal Highway Administration regulations in 23 CFR 645.205, 
activities not authorized by a prior existing highway right-of-way, as 
well as activities that fall outside the footprint of an existing 
right-of-way, are subject to 50 CFR 26.41 and the procedures in this 
final rule.
    In response to public comments, and consistent with the preamble in 
the proposed rule, we revised and streamlined proposed Sec.  29.21-3, 
Compatibility-determination requirement (now at Sec.  29.13 in this 
final rule). Consistent with the Service's compatibility policy in the 
Service Manual at 603 FW 2, we clarified that the Service will not 
issue or renew a right-of-way permit across National Wildlife Refuge 
System land if the use would conflict with the goals or objectives in 
an approved refuge management plan (e.g., a comprehensive conservation 
plan). For brevity, we deleted proposed Sec.  29.21-3's statutory 
citations and pointed applicants toward the Service's existing 
compatibility regulations in 50 CFR 25.21, which address compatible use 
determinations and reevaluations for rights-of-way permitted before and 
after November 17, 2000. Finally, in response to comments, we revised 
proposed Sec.  29.21-3 to clarify that no compatibility determination 
is required for activities explicitly authorized by a permanent right 
or right-of-way obtained prior to acquisition by the United States.
    The addition of a new section, Sec.  29.12, Preexisting uses, in 
this final rule required the redesignations of proposed Sec.  29.21-4 
and the subsequent sections of the proposed rule.
    We revised proposed Sec.  29.21-4, Application procedures (now 
Sec.  29.16, Right-of-way permit application, in this final rule), to 
clarify that the Service will not begin processing a right-of-way 
permit application until the agency has determined that the applicant 
has complied with application requirements. This provision was 
previously implied but not explicitly stated. The remainder of the 
section pertaining to application procedures follows what was 
previously included in the proposed rule with several revisions.
    The most significant revision to proposed Sec.  29.21-4 (now Sec.  
29.16), which we made in response to a public comment, is the 
elimination of the requirement that applicants include an environmental 
analysis with every application submission. An environmental analysis 
can be a time-consuming and expensive undertaking, and the Service 
agrees with a commenter that it is premature for an applicant to 
provide an environmental analysis suitable to satisfy NEPA requirements 
at the application submittal stage, and that the Service should first 
review other application documentation before requesting a detailed 
environmental analysis.
    We revised proposed Sec.  29.21-4 (now Sec.  29.16) to substitute 
supplemental environmental information for the environmental analysis 
in the list of documents that applicants must include with their 
application submission. This supplemental environmental information may 
include, but is not limited to, the anticipated impacts of the proposed 
use on air and water quality; scenic and aesthetic features; historic, 
architectural, archeological, and cultural features; and wildlife, 
fish, and marine life, including habitat connectivity and migratory 
routes.
    Related to these changes, we revised proposed Sec.  29.21-4 (now 
Sec.  29.16) to require that applications include a description of 
proposed access routes and means of access for right-of-way 
construction and maintenance, and that the application's included maps 
identify proposed access points and routes (including uses of existing 
roads). This is information that would have otherwise been described in 
an environmental analysis, which, as explained above, the Service is no 
longer requiring as part of every right-of-way application submission.
    We revised proposed Sec.  29.21-4 (now Sec.  29.16) to clarify that 
the preliminary site and facility construction plans listed on the SF-
299 are required with application submission. Proposed Sec.  29.21-4 
identified preliminary site and facility construction plans as a post-
application submission requirement, even though preliminary site and 
facility construction plans are a requirement of the SF-299, which is 
required with right-of-way application submission.
    Finally, we revised proposed Sec.  29.21-4 (now Sec.  29.16) to 
indicate that an applicant may be required to provide proof of general 
liability insurance before the Service will issue a right-of-way 
permit. In the proposed rule, Sec.  29.21-8(e) (now Sec.  29.20(e)) 
stated that the Service may require a permit holder to maintain general 
liability insurance during the term of the permit, and, for 
transparency purposes, we copied this requirement to Sec.  29.16(d)(4).
    In this final rule, we have added a new section, Sec.  29.15, 
General application procedures, summarizing steps an applicant must 
follow to request a right-of-way permit. These steps are described in 
more detail in other sections of the proposed rule and this final rule. 
This new section clarifies that the Service will deem a right-of-way 
application to be complete, and notify the applicant of such, after the 
Service has determined that the

[[Page 99738]]

information provided with an application is sufficient for the agency 
to make a compatibility determination and comply with NEPA. The section 
also states that the Service will notify the applicant if additional 
information is required for a complete application. These 
clarifications on application completeness are necessary given that the 
Service requires an environmental analysis to process many applications 
but is eliminating the proposed Sec.  29.21-4 requirement that an 
environmental analysis be included with every application submission, 
to avoid situations where an applicant incurs an unnecessary expense to 
provide information the Service does not require.
    In response to public comments, we revised proposed Sec.  29.21-5 
(now Sec.  29.17) to be more flexible about the type of right-of-way 
location information the Service requires from an applicant before the 
agency may issue a right-of-way permit. The new paragraph under Sec.  
29.17(c) authorizes a licensed Service land surveyor to waive the 
requirement of a survey plat for a proposed right-of-way in a remote 
location if they determine that the GPS coordinates and supporting 
location information submitted by the applicant for inclusion in the 
right-of-way permit are adequate to locate the proposed right-of-way 
with minimal risk to the United States.
    We revised proposed Sec.  29.21-6 (now Sec.  29.18) to clarify that 
the Service's required upfront payments for application processing will 
not include the cost of preparing environmental review documents to 
satisfy NEPA requirements when the applicant will pay for that work.
    We revised proposed Sec.  29.21-8(c)(4), under Terms and conditions 
required for all permit holders, to clarify that collocation of 
wireless facilities is allowed but requires that each collocating 
entity obtain a right-of-way permit. This revision corrects the 
contradictory language in proposed Sec.  29.21-8(c)(4) that some may 
have interpreted as prohibiting collocation of wireless communications 
equipment, which the Service supports where possible and compatible 
with refuge purposes. The revised language appears in Sec.  29.20(c)(4) 
in this final rule.
    Although already common practice within the Service, we revised 
proposed Sec.  29.21-8(d)(1), under Terms and conditions required of 
most permit holders (now at Sec.  29.20(d)(1) in this final rule), to 
explicitly require that right-of-way permits issued by the Service 
include language ensuring that Service-managed public lands remain 
accessible to the public when access does not pose a threat to public 
safety or the environment.
    We revised proposed Sec.  29.21-8(g) (now at Sec.  29.20(g) in this 
final rule) to clarify that requirements for communications facilities, 
including complying with the applicable Federal rules and procedures 
for telecommunications sites, apply to entities that operate or 
maintain wireless communications equipment and are not applicable to 
owners of towers and support infrastructure who do not operate or 
maintain wireless communications equipment. This revision corrects the 
prior language at proposed Sec.  29.21-8(g) that would have made owners 
of towers and support infrastructure responsible for ensuring 
collocated entities that operate or maintain wireless communications 
equipment meet regulatory requirements.
    As indicated above, the Service requires that a company have a 
right-of-way permit to operate and maintain wireless telecommunications 
equipment on Service-managed land. In the situation where one company 
has a permitted tower or support infrastructure, and a second company 
will add their antennas and/or microwave dishes to the first company's 
tower or support infrastructure, and the second company will operate 
and maintain their equipment and be responsible for compliance with 
Federal rules and procedures, then the Service requires that the second 
company obtain a right-of-way permit and include with their right-of-
way application proof of permission to collocate with the first 
company. Maps and the legal description for collocated use would match 
that of the permitted tower or infrastructure; however, the company 
seeking to install and operate the wireless communications equipment 
would identify their own operation and maintenance needs in their 
application. If collocating with another provider, the environmental 
analysis for the proposed additional use of an existing permitted tower 
or support infrastructure must address the cumulative impact of 
multiple collocated providers if that analysis was not performed as 
part of the permitting for the tower or support infrastructure.
    In response to requests from the State of Alaska, we made minor 
clarifying edits to the preamble and the regulations in the sections 
referencing Alaska.
    We revised a definition for a term we had proposed, Regional 
Director, and the proposed provisions for another term, National 
Wildlife Refuge System lands--less than fee interest. We also replaced 
the term right-of-way with right-of-way permit and revised its 
definition.
     We revised the definition of Regional Director in proposed 
Sec.  29.21 (Sec.  29.10 in this final rule) to eliminate the 
additional requirement that, when these regulations require the 
Regional Director's signature or written approval for a right-of-way, 
only the Regional Director or the person acting in the Regional 
Director's official capacity may sign. This change makes the definition 
of the term consistent with definitions found elsewhere in title 50 CFR 
and provides flexibility to allow a delegated representative of the 
Regional Director to sign. The Service will address delegations and 
signature requirements through the Service Manual rather than through 
this rulemaking action.
     We revised the provisions for National Wildlife Refuge 
System lands--less than fee interest in proposed Sec.  29.21-1(d) (now 
at Sec.  29.11(d) in this final rule) to clarify that, when the Service 
determines that a right-of-way will not affect a legal interest of the 
United States, a Regional Director will sign a letter to the applicant 
stating that the proposed right-of-way will not affect the interest of 
the United States and the Service has no objection to the fee owner 
allowing the right-of-way. The language in the proposed rule improperly 
stated that the Regional Director would send such a letter to an 
applicant when the Service determines that a right-of-way will not 
adversely affect a legal interest of the United States. In a situation 
where a proposed long-term use will affect a legal interest of the 
United States, regardless of how it impacts Service-managed lands, a 
right-of-way permit is required.
     We replaced the term right-of-way in proposed Sec.  29.21 
(Sec.  29.10 in this final rule) with the term right-of way-permit to 
be clearer and more specific about what may be authorized and to more 
closely align our definition with that of the National Park Service. 
The term ``right-of way-permit'' means a discretionary and revocable 
permit, issued by the Service to authorize the use of lands or waters 
within Refuge System units for the construction, operation, and 
maintenance of infrastructure.
    We added several new definitions to better align our terminology 
with terminology being adopted by the National Park Service in their 
regulations.
     We add the term Applicant to mean an entity that has 
submitted an application for a right-of-way permit.

[[Page 99739]]

     We add the term Permit holder to mean an entity that holds 
a current, fully executed right-of-way permit.
     We add the term Permitted area to mean the area of land or 
water mapped, described, and authorized for use, including 
construction, operation, maintenance, as well as routes and means of 
access, in a right-of-way permit issued by the U.S. Fish and Wildlife 
Service.
    We revise Sec.  29.22, now Sec.  29.26, Hearing and appeals 
procedures, to clarify how the Service handles appeals for rejections 
of new rights-of-way, renewals of previously authorized rights-of-way, 
and terminations of authorized rights-of-way. The language in the 
current regulation states that an appeal may be taken from any final 
disposition of the Regional Director to the Director of the U.S. Fish 
and Wildlife Service, and, except in the case of a denial of a right-
of-way application, from the latter's decision to the Secretary of the 
Interior. Because this language has caused confusion, we are revising 
the language in this section consistent with its meaning.
    In this final rule, we clarify that denials of new requested 
rights-of-way, when the denial is based on a Service's determination 
that the proposed use is not compatible, may be appealed to the 
Regional Director and subsequently to the Director, but no further. In 
this respect, denials of requested rights-of-way are different than 
denials for all other proposed uses of Refuge System lands, which, in 
accordance with 50 CFR 25.45, cannot be appealed beyond the Regional 
Director. Service termination of an existing authorized right-of-way 
may be further appealed to the Secretary. We also clarify that a party 
with standing may appeal the Service's decision to issue a requested 
right-of-way to the Secretary. These revisions do not establish new 
policy or procedure but instead rephrase the existing language to make 
it more clear.
    Finally, in this final rule, we add a section on severability in 
Sec.  29.27. The Service intends the regulations in this rule to be 
severable. If any portion of this final rule were to be stayed or 
invalidated by a reviewing court, the remaining elements would continue 
to provide the Service with important and independently effective tools 
relating to the administration of its right-of-way permitting program. 
Hence, if a court prevents any provision of this rule from taking 
effect, that action should not affect the other regulations in the 
subpart. The remaining provisions would remain in force because they 
could still operate sensibly.
    For convenience in comparing the organization of the regulations at 
50 CFR part 29, subpart B, Rights-of-Way General Regulations, with the 
revised regulations in that subpart as of the effective date of this 
final rule, table 1 displays the previous and new section designations.

      Table 1--Prior and New Sections in 50 CFR Part 29, Subpart B
------------------------------------------------------------------------
           Previous sections                       New sections
------------------------------------------------------------------------
Sec.   29.21 What do these terms mean?.  Sec.   29.10 Definitions.
Sec.   29.21-1 Purpose and scope.......  Sec.   29.11 Purpose and scope.
Sec.   29.21-2 Application procedures..  Sec.   29.12 Preexisting uses.
Sec.   29.21-3 Nature of interest        Sec.   29.13 Compatibility-
 granted.                                 determination requirement.
Sec.   29.21-4 Terms and conditions....  Sec.   29.14 Preapplication
                                          meeting.
Sec.   29.21-5 Construction............  Sec.   29.15 General
                                          application procedures.
Sec.   29.21-6 Disposal, transfer or     Sec.   29.16 Right-of-way
 termination of interest.                 permit application.
Sec.   29.21-7 What payment do we        Sec.   29.17 Survey plat and
 require for use and occupancy of         legal description.
 national wildlife refuge lands?
Sec.   29.21-8 Electric power            Sec.   29.18 Reimbursement of
 transmission line rights-of-way.         costs.
Sec.   29.21-9 Rights-of-way for         Sec.   29.19 Nature of interest
 pipelines for the transportation of      granted.
 oil, natural gas, synthetic liquid or
 gaseous fuels, or any refined product
 produced therefrom.
                                         Sec.   29.20 Terms and
                                          conditions.
                                         Sec.   29.21 Construction.
                                         Sec.   29.22 Disposal,
                                          transfer, or termination of
                                          interest.
                                         Sec.   29.23 Required payment
                                          for use and occupancy of
                                          National Wildlife Refuge
                                          System land.
                                         Sec.   29.24 Electric power
                                          transmission line rights-of-
                                          way.
                                         Sec.   29.25 Rights-of-way for
                                          pipelines for the
                                          transportation of oil, natural
                                          gas, synthetic liquid, or
                                          gaseous fuels, or any refined
                                          product produced from these
                                          substances.
Sec.   29.22 Hearing and appeals         Sec.   29.26 Hearing and
 procedures.                              appeals procedures.
                                         Sec.   29.27 Severability.
------------------------------------------------------------------------

Required Determinations

    As stated above, before issuing a right-of-way permit, the Service 
must assess the effects of the proposed use, as required by NEPA, the 
ESA, and the NHPA as well as other applicable laws and Executive 
orders. In regard to NEPA, we believe that this rulemaking action 
qualifies for a categorical exclusion as described in 43 CFR 46.210(i) 
for rulemaking actions that are primarily procedural in nature. As set 
forth in that regulation, under this rule, we will conduct NEPA 
analysis for individual permit applications.

Regulatory Planning and Review--Executive Orders 12866, 13563, and 
14094

    Executive Order (E.O.) 14094 amends E.O. 12866 and reaffirms the 
principles of E.O. 12866 and E.O. 13563 and states that regulatory 
analysis should facilitate agency efforts to develop regulations that 
serve the public interest, advance statutory objectives, and are 
consistent with E.O. 12866 and E.O. 13563. Regulatory analysis, as 
practicable and appropriate, shall recognize distributive impacts and 
equity, to the extent permitted by law. 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 developed this rule in a manner consistent with 
these requirements.
    E.O. 12866, as reaffirmed by E.O. 13563 and amended and reaffirmed 
by E.O. 14094, provides that the Office of Information and Regulatory 
Affairs (OIRA) in the Office of Management and Budget (OMB) will review 
all significant rules. OIRA determined that this final rule is not 
significant.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.) 
generally requires

[[Page 99740]]

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 Federal regulations do 
not unnecessarily or disproportionately burden small entities. Small 
entities include small businesses, small governmental jurisdictions, 
and small not-for-profit enterprises.
    The Service 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 (15 U.S.C. 631 et seq.). However, the Service believes 
that the impact on the small entities is not significant, as the rule 
would impact a small number of small entities, and the Service does not 
believe that these effects would be economically significant.
    This final rule will benefit small businesses by streamlining 
Service regulations for permitting rights-of-way and thereby reduce the 
amount of time that the Service requires to issue many right-of-way 
permits. The rule implements a requirement for a preapplication meeting 
to provide small businesses with information upfront about the 
Service's estimated time and cost to evaluate and process a right-of-
way application, increasing regulatory certainty. Additionally, the 
rule eliminates the Service application fee previously required at 
Sec.  29.21-2(a)(2) and provides the Service 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 rule would result in a 
significant economic impact on a substantial number of small entities. 
We certify that this rule will not have a significant economic impact 
on a substantial number of small entities. Therefore, a regulatory 
flexibility analysis is not required.

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 rule will streamline and expedite Service 
processing of industry requests for rights-of-way and modifications to 
rights-of-way that cross Service-managed lands, but it will not 
significantly affect energy supplies, distribution, or use. Moreover, 
this rule is not a significant regulatory action as determined by OIRA, 
and the OIRA administrator has not designated this rule as a 
significant energy action. 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.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501, 
et seq.), this rule will not significantly or uniquely affect small 
governments, and a small government agency plan is not required. 
Moreover, this rule will 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 rule will not have significant 
takings implications as it applies only to Service 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 rule will 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 the Service 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 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 Service use of Common Form SF-
299 and assigned OMB Control Number 0596-0249 (expires 01/31/2027). You 
may view the information collection request(s) at https://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 
Secretary's 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 rule has no impact on Tribal lands, as it applies only to 
Service permitting of rights-of-way across lands, and interests in 
land, owned by the United States. Consistent with 512 DM 2 and 
Secretary's Order 3206, we sought comments from Tribes, and addressed 
the comments we received from Tribes concerning permitting of rights-
of-way across lands, and interests in land, owned by the United States 
and managed by the Service.

List of Subjects in 50 CFR Part 29

    Public lands mineral resources, Public lands rights-of-way, 
Wildlife refuges.

Regulation Promulgation

    For the reasons given in the preamble, we hereby 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

[[Page 99741]]

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. Revise and republish subpart B to read as follows:

Subpart B--Rights-of-Way General Regulations

Sec.
29.10 Definitions.
29.11 Purpose and scope.
29.12 Preexisting uses.
29.13 Compatibility-determination requirement.
29.14 Preapplication meeting.
29.15 General application procedures.
29.16 Right-of-way permit application.
29.17 Survey plat and legal description.
29.18 Reimbursement of costs.
29.19 Nature of interest granted.
29.20 Terms and conditions.
29.21 Construction.
29.22 Disposal, transfer, or termination of interest.
29.23 Required payment for use and occupancy of National Wildlife 
Refuge System land.
29.24 Electric power transmission line rights-of-way.
29.25 Rights-of-way for pipelines for the transportation of oil, 
natural gas, synthetic liquid, or gaseous fuels, or any refined 
product produced from these substances.
29.26 Hearing and appeals procedures.
29.27 Severability.


Sec.  29.10  Definitions.

    In this subpart, the following terms will have the meanings set 
forth in this section.
    ANILCA means the Alaska National Interest Lands Conservation Act 
(16 U.S.C. 3101 et seq.).
    Applicant means an entity that has submitted an application for a 
right-of-way permit.
    Compatible use means a proposed or existing wildlife-dependent 
recreational use or any other use of a national wildlife refuge that, 
based on sound professional judgment, will not materially interfere 
with or detract from the fulfillment of the National Wildlife Refuge 
System mission or the purposes of the national wildlife refuge. The 
term ``inconsistent'' in section 28(b)(1) of the Mineral Leasing Act of 
1920 (30 U.S.C. 185) means a use that is not compatible.
    Department means the U.S. Department of the Interior unless 
otherwise specified.
    National Fish Hatchery System land means lands and waters, and 
interests therein, administered by the Secretary to propagate and 
distribute fish and other aquatic animal life and managed for the 
protection of all species of wildlife.
    National Wildlife Refuge System land means lands and waters, and 
interests therein, administered by the Secretary under the National 
Wildlife Refuge System Administration Act (16 U.S.C. 668dd-668ee), as 
amended, including wildlife refuges, game ranges, wildlife management 
areas, conservation areas, waterfowl production areas, and other areas 
administered for the protection and conservation of fish, wildlife, and 
plant species.
    Other lands mean all other lands, or interests therein, and waters 
administered by the Secretary through the U.S. Fish and Wildlife 
Service that are not included in the National Wildlife Refuge System or 
the National Fish Hatchery System, e.g., administrative sites.
    Permit holder means an entity that holds a current, fully executed 
right-of-way permit.
    Permitted area means the area of land or water mapped, described, 
and authorized for use, including construction, operation, maintenance, 
as well as routes and means of access, in a right-of-way permit issued 
by the U.S. Fish and Wildlife Service.
    Regional Director means the official in charge of a region of the 
U.S. Fish and Wildlife Service or an authorized representative of the 
Regional Director.
    Right-of-way permit means a discretionary and revocable permit 
issued by the U.S. Fish and Wildlife Service to authorize a use on, 
under, or over Federal lands, excluding uses that are included in a 
contract for services to a Service facility and excluding uses 
requested by the Service to benefit the mission of the National 
Wildlife Refuge System or the National Fish Hatchery System. A right-
of-way permit does not grant, convey, or imply transfer of title to any 
interest in, including a leasehold or easement interest in, the lands 
or waters authorized for use.


Sec.  29.11   Purpose and scope.

    The regulations in this subpart prescribe the procedures for filing 
applications and the terms and conditions under which rights-of-way 
over and across the lands administered by the U.S. Fish and Wildlife 
Service may be permitted.
    (a) National Wildlife Refuge System lands except lands in Alaska. 
Applications are submitted under authority of Public Law 89-669, as 
amended (80 Stat. 926; 16 U.S.C. 668dd), or for oil and gas pipelines 
under section 28 of the Mineral Leasing Act of 1920, as amended (30 
U.S.C. 181 et seq.), following the application procedures set out in 
Sec.  29.15. The Service will not issue a right-of-way permit for a 
requested use that would conflict with the goals or objectives in an 
approved refuge management plan, nor will the Service issue a right-of-
way permit unless the use is a compatible use as described in Sec.  
29.13. See Sec.  29.24 for additional requirements applicable to 
rights-of-way for electric power transmission lines and Sec.  29.25 for 
additional requirements applicable to rights-of-way for pipelines for 
the transportation of oil, natural gas, synthetic liquid, or gaseous 
fuels, or any refined product produced from these substances.
    (b) National Wildlife Refuge System lands in Alaska. Applications 
for rights-of-way authorized under ANILCA (see 16 U.S.C. 3162(B)) must 
be submitted under authority of 16 U.S.C. 3101 et seq. and follow the 
procedures and requirements set forth in 43 CFR part 36 and other 
applicable Refuge laws and regulations where they do not conflict with 
ANILCA. Applications for all other rights-of-way on or over lands in 
Alaska must be submitted under authority of 16 U.S.C. 668dd, as 
amended, or for oil and gas pipelines under section 28 of the Mineral 
Leasing Act of 1920, as amended (30 U.S.C. 181 et seq.), following the 
application procedures set out in Sec.  29.15, except that 
compatibility determinations for Alaska Native Claims Settlement Act 
22(g) lands shall follow the procedures in Sec.  25.21(b)(1) of this 
chapter.
    (c) National Fish Hatchery System lands. Applications for rights-
of-way across National Fish Hatchery System lands follow the same 
procedures as applications for rights-of-way across National Wildlife 
Refuge System lands in this section.
    (d) National Wildlife Refuge System lands--less than fee interest. 
The Service requires permits for rights-of-way that affect a property 
interest acquired by the United States. If the requested right-of-way 
or regular maintenance of the requested right-of-way may affect the 
United States' interest, then an application for a right-of-way permit 
must be submitted in accordance with procedures set forth in Sec.  
29.15, except those applications for rights-of-way authorized under 
ANILCA (see 16 U.S.C. 3162(B)) will follow the procedures set forth in 
43 CFR part 36. If the Regional Director determines that the proposed 
right-of-way and regular maintenance of the proposed right-of-way will 
not affect the United States' interest, then the Regional Director will 
sign a letter to the applicant stating that the proposed right-of-way 
will not affect the interest of the United States and the Service has 
no objection to the right-of-way.
    (e) Other lands outside the National Wildlife Refuge System and 
National Fish Hatchery System. Rights-of-way on

[[Page 99742]]

or over other lands will be permitted in accordance with controlling 
authorities cited in 43 CFR part 2800, or for oil and gas pipelines 
under section 28 of the Mineral Leasing Act of 1920, as amended (30 
U.S.C. 181 et seq.). See Sec.  29.24 for additional requirements 
applicable to rights-of-way for electric power transmission lines and 
Sec.  29.25 for additional requirements applicable to rights-of-way for 
pipelines for the transportation of oil, natural gas, synthetic liquid, 
or gaseous fuels, or any other refined product produced from those 
substances. Applications must be submitted in accordance with 
procedures set out in Sec.  29.15, except that the compatibility-
determination requirement in Sec.  29.13 does not apply to lands 
outside the National Wildlife Refuge System and National Fish Hatchery 
System.


Sec.  29.12   Preexisting uses.

    The regulations in this subpart have no impact on permanent rights 
and rights-of-way in existence prior to acquisition by the United 
States, except those activities not explicitly authorized by a 
preexisting right-of-way, as well as activities that fall outside the 
footprint of such a right-of-way, are subject to Sec.  26.41 of this 
chapter and the procedures in this subpart.


Sec.  29.13   Compatibility-determination requirement.

    The Service will not issue or renew a right-of-way permit across 
National Wildlife Refuge System land if the use would conflict with the 
goals or objectives in an approved refuge management plan. The Service 
will not issue or renew a right-of-way permit across National Wildlife 
Refuge System land unless the agency determines that the use is a 
compatible use in accordance with the requirements and procedures of 
Sec.  25.21 of this chapter. The requirements and procedures of Sec.  
26.41(c) of this chapter apply to any requested maintenance of or 
modifications to an existing right-of-way except as modified by any 
other prevailing provision of law. None of the requirements in this 
subpart apply to the access of privately owned minerals or to 
activities explicitly authorized by a permanent right or right-of-way 
obtained prior to acquisition by the United States, nor do they apply 
when access is required by any other prevailing provision of law. No 
compatibility determination is necessary to permit or renew a right-of-
way across lands outside the National Wildlife Refuge System and 
National Fish Hatchery System.


Sec.  29.14   Preapplication meeting.

    Before submitting an application for a new right-of-way permit or a 
modification of an existing right-of-way permit across lands managed by 
the Service, a potential applicant must contact the appropriate 
Regional Director to schedule a preapplication meeting with the 
Service. Contact information for the Service Regional Offices is 
available at https://www.regulations.gov in Docket No. FWS-HQ-NWRS-
2019-0017. There is no fee for the preapplication meeting. During the 
meeting, the potential applicant may ask questions about the 
application process, provide information about the scope of the 
requested right-of-way permit and its location, and receive feedback. 
The Service will advise the potential applicant about documentation 
needed to make an application complete and provide the potential 
applicant with an expected timeline and potential costs to review and 
process the application.


Sec.  29.15  General application procedures.

    (a) Preapplication meeting. To request the preapplication meeting 
required by Sec.  29.14 for a new right-of-way or a modification of an 
existing right-of-way, contact the appropriate Service Regional Office, 
the geographic jurisdictions of which are listed at 50 CFR 2.2. Contact 
information for the Service Regional Offices is available at https://www.regulations.gov in Docket No. FWS-HQ-NWRS-2019-0017.
    (b) Application submission. Applicants must submit an application 
that includes the completed form and required attachments as described 
in Sec.  29.16. The Service will deem a right-of-way application to be 
complete, and notify the applicant of such, after the Service has 
determined that the provided information is sufficient for the agency 
to make a compatibility determination and comply with the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.). The Service 
will also notify the applicant if additional information is required 
for a complete application.
    (c) Payment for cost recovery. After the Service has determined 
that an application is complete, the agency will notify the applicant 
and provide an updated estimate of application processing costs, as set 
forth at Sec.  29.18(a). The Service will review and process a right-
of-way permit application after it has requested and received payment 
for these costs.
    (d) Providing additional information for permit. If the Service 
determines that the requested right-of-way is a compatible use, then 
the agency will request additional information from the applicant 
necessary to draft a right-of-way permit document for applicant review. 
This includes but is not limited to the survey plat or Global 
Positioning System (GPS) location information described in Sec.  29.17. 
The applicant must provide this information in order for the Service to 
develop the permit.
    (e) No guarantee of right-of-way permit. Submitting a complete 
application and payment for application processing costs do not 
guarantee that the Service will issue or renew a right-of-way permit. 
Issuance or renewal of a right-of-way permit is contingent on a Service 
determination that the right-of-way is a compatible use. Permit 
issuance or renewal is also contingent on the applicant:
    (1) Providing the information the Service requires to develop the 
right-of-way permit;
    (2) Agreeing to the permit's terms and conditions; and
    (3) Providing payment for use and occupancy of the land as well as 
for future right-of-way monitoring costs.


Sec.  29.16   Right-of-way permit application.

    (a) Complete application requirement. The Service will not begin 
processing a right-of-way permit application until after the applicant 
has submitted a complete application with all required information. See 
paragraph (e) of this section for submission instructions.
    (b) Application form. To request a new right-of-way permit, 
modifications to an existing right-of-way permit, or renewal of an 
existing right-of-way permit, applicants must submit a complete 
Standard Form 299, Application for Transportation, Utility Systems, 
Telecommunications and Facilities on Federal Lands and Property (SF-
299), or the applicable common form approved by the General Services 
Administration at the time of the application, including all materials 
required in the SF-299 and the regulations in this subpart. The SF-299 
must be signed by the applicant or applicant's authorized 
representative.
    (c) Required application attachments. In addition to a completed 
and signed SF-299, an application for a right-of-way permit must 
include the attachments described in this section.
    (1) Map(s). The map(s) must show a general view of the proposed 
right-of-way and a detailed view of the proposed project area in 
relation to the Service unit boundary. If the proposed right-of-way is 
within a Public Land Survey System area, the map(s) must show the 
section(s), township(s), and range(s) within which the proposed right-
of-way

[[Page 99743]]

would be located. The maps must identify:
    (i) The area proposed to be included in the right-of-way permit, 
including the placement of proposed infrastructure; and
    (ii) Proposed access points and routes (including uses of existing 
roads), and other areas associated with the requested right-of-way.
    (2) Preliminary site and facility construction plans. These plans, 
which are listed as an attachment to SF-299, are required for 
applications for rights-of-way or renewals of rights-of-way where 
construction is required. The plans must show all proposed construction 
work and include a list of equipment to be used in construction and a 
proposed construction timeline.
    (3) Proposed access. The application must include a description of 
proposed access routes and means of access for construction and 
maintenance of the requested right-of-way.
    (4) Supplemental environmental information. In addition to the 
basic environmental information on the SF-299, the applicant must 
provide supplemental information on the environmental impact of the 
proposed right-of-way that is suitable for the Service to determine 
whether the proposed use is compatible with the mission of the Refuge 
System and the purpose(s) of the refuge. This supplemental information 
may include, but is not limited to, anticipated impacts of the proposed 
use on air and water quality; scenic and aesthetic features; historic, 
architectural, archeological, and cultural features; and wildlife, 
fish, and marine life, including habitat connectivity and migratory 
routes. The supplemental information also may describe proposed design 
measures that will minimize or avoid resource impacts. The Service will 
review the provided supplemental environmental information to determine 
what additional information, if any, the agency requires from the 
applicant to determine whether the proposed use is compatible with the 
mission of the Refuge System and the purpose(s) of the refuge.
    (d) Other required documents. During the preapplication meeting or 
in a subsequent communication, the Service will inform the applicant 
when the agency requires the following information and other 
information to prepare a right-of-way permit, which the applicant must 
provide before the Service may issue a right-of-way permit.
    (1) Survey plat and legal description. See Sec.  29.17 for 
requirements.
    (2) Detailed environmental analysis. To comply with the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), an 
environmental assessment or environmental impact statement must be 
prepared in accordance with section 102(2)(C) of the National 
Environmental Policy Act and comply with the requirements of the 
Migratory Bird Treaty Act of 1918 (16 U.S.C. 703-712), the Endangered 
Species Act of 1973 (16 U.S.C. 1531 et seq.), the Wilderness Act of 
1964 (16 U.S.C 1131 et seq.), the Wild and Scenic Rivers Act of 1968 
(16 U.S.C. 1271 et seq.), and the National Historic Preservation Act of 
1966 (54 U.S.C. 300101 et seq.). The environmental assessment or 
environmental impact statement may be prepared by the Service, another 
Federal agency, the applicant, or the applicant's contractor; however, 
in all cases, this documentation must be prepared in consultation with 
the Regional Director.
    (i) If the environmental assessment or environmental impact 
statement will be prepared by the Service or another Federal agency, 
rather than the applicant or the applicant's contractor, the applicant 
must provide sufficient data to enable the Service or the other agency 
to satisfy the requirements in this paragraph (d)(2) and reimburse the 
Service for its costs as described in Sec.  29.18.
    (ii) For renewals of existing rights-of-way permitted that involve 
no changes to the permitted use, the environmental analysis need 
address only the impacts, including the cumulative effects, of the 
ongoing operation and maintenance of the right-of-way. The 
environmental analysis must also address any statutory requirements not 
in place when the original permit was issued and therefore not 
previously considered.
    (3) Proposed vegetation management plan. A proposed vegetation 
management plan is required for a requested right-of-way permit or 
permit renewal where there will be disturbance of vegetation resulting 
from the construction, operation, or maintenance of the right-of-way. 
The plan must be prepared in consultation with the Regional Director's 
designee and must describe:
    (i) Vegetation clearing that may occur as part of structural 
construction, maintenance, and removal.
    (ii) Routine vegetation management that may occur, including a 
description of all physical and mechanical methods that will be used, 
how equipment will be cleaned before and after entry to the right-of-
way, and how the spread of nonnative species by equipment and 
activities will be minimized.
    (iii) Any pesticides, herbicides, or other chemicals proposed for 
use, as well as the actions the applicant will take to minimize the 
adverse impacts of pesticides, herbicides, and other chemicals on 
native species including pollinators present in or adjacent to the 
right-of-way.
    (iv) Any revegetation and restoration activities, including how the 
applicant will incorporate regionally appropriate native seeds and 
plants, particularly those that provide breeding, feeding, and 
sheltering habitat for native species present in the area, including 
but not limited to native pollinators.
    (4) Financial assurance and liability insurance. As appropriate to 
the proposed right-of-way, the Service may require proof of acceptable 
financial assurance and liability insurance.
    (e) Submission instructions. Applicants may submit applications for 
rights-of-way through electronic filing or certified mail.
    (1) Electronic filing. Applications submitted through electronic 
filing (E-file) must include a digital copy of the SF-299, the map(s), 
the preliminary site and facility construction plans, and the 
supplemental environmental information, as well as any other 
attachments that the Regional Director requires for application 
processing. The Service may provide additional instructions at the 
preapplication meeting.
    (2) Certified mail. Application submissions through certified mail 
must include one printed copy of the SF-299, the map(s), the 
preliminary site and facility construction plans, and the supplemental 
environmental information, as well as any other attachments that the 
Regional Director requires for application processing. Applicants must 
send all documents by certified mail to the Regional Director for the 
region where the proposed right-of-way is located. Addresses for the 
Service Regional Offices are provided at 50 CFR 2.2. Mailing envelopes 
should be clearly marked ``Attn: NWRS Realty Right-of-Way Permit 
Processing.''


Sec.  29.17   Survey plat and legal description.

    (a) Before the Service will issue or renew a right-of-way permit, 
the applicant must provide a final survey plat and legal description 
that shows and describes the right-of-way in such detail that the 
Service can accurately locate the right-of-way on the ground.
    (b) Survey plats and legal descriptions of the right-of-way area 
must be stamped and signed by a licensed professional land surveyor or 
other professional licensed or authorized by the State to carry out 
land-surveying activities.

[[Page 99744]]

    (1) Survey plats must meet the following standards:
    (i) Survey plats must be geodetically referenced to the current 
State or national datum. In some cases, new geodetic control points 
will need to be set within or near the right-of-way area.
    (ii) Survey plats must show ties to the monuments marking the 
boundaries of the Service-owned land that the right-of-way would 
affect, or from which those boundaries are calculated. In cases such as 
road construction that involve allowing full control of the right-of-
way area, a boundary survey is required.
    (iii) The points where the right-of-way enters and leaves Service 
land must be annotated on the survey with distance ties to the nearest 
boundary monuments.
    (iv) For a linear strip right-of-way, the courses and distances of 
the center line and the width of the right-of-way on each side of the 
center line must be annotated.
    (v) If the right-of-way or site is located wholly within Service 
land, a minimum of two ties to boundary corners or geodetic control 
points that can be readily recovered must be shown.
    (vi) Survey plats must show the existing or proposed facilities in 
sufficient detail that an average person can determine the nature and 
extent of the proposed use.
    (vii) Survey plats must include all uses of Service-managed land 
required as part of the right-of-way, including access roads.
    (viii) Survey plats must show the location of any other right-of-
way areas in the vicinity.
    (ix) Survey plats must show major natural or cultural features such 
as roads, rivers, fences, etc., required for orientation and 
intelligent interpretation.
    (x) The acreage contained within the right-of-way area must be 
shown.
    (xi) Letter-sized plats are preferred, but larger format plats, 
such as the right-of-way plan sets prepared for highway and utility 
projects, are acceptable if they meet the other requirements.
    (xii) A digital version of the plat in AutoCAD, ArcGIS, or similar 
format must be submitted along with a signed paper or document prepared 
in Adobe Acrobat or similar process.
    (2) The legal description must:
    (i) Be in metes-and-bounds, aliquot parts, or linear strip format;
    (ii) Conform to and reference the survey plat;
    (iii) Be tied to the controlling monuments shown on the plat;
    (iv) Reference the geodetic coordinates of the point of beginning 
or point of commencement, and have a clearly documented basis of 
bearing; and
    (v) For linear corridor projects, use a ``strip description'' 
format, based on a geometrically defined centerline. For example: ``All 
that portion of [land unit description] lying within the following 
described strip of land.''
    (c) A licensed Service land surveyor may waive the requirement of a 
survey plat for a proposed right-of-way in a remote location if they 
determine that the GPS coordinates and supporting location information 
submitted by the applicant for inclusion in the right-of-way permit are 
adequate to locate the proposed right-of-way with minimal risk to the 
United States.


Sec.  29.18   Reimbursement of costs.

    (a) Application evaluation and processing activities. (1) Unless 
reimbursement is waived as provided under paragraph (c) of this 
section, the applicant for a right-of-way permit must reimburse the 
United States for the costs the Service incurs in evaluating and 
processing the application, even if the result of this evaluation is a 
denial of the application.
    (i) These costs may include, but are not limited to, the Service's 
costs to review the application and related materials, conduct surveys 
of the proposed permit area, prepare a compatibility determination, 
obtain an appraisal, draft correspondence, and draft the permit.
    (ii) If the applicant or the applicant's contractor will prepare 
the environmental assessment or environmental impact statement 
necessary to comply with the National Environmental Policy Act (42 
U.S.C. 4321 et seq.) and other applicable laws, then the Service shall 
require no reimbursement for National Environmental Policy Act 
compliance with exception to the costs the Service incurs to ensure 
that the materials meet agency requirements.
    (2) If requested by the applicant during or after the required 
preapplication meeting, the Regional Director will provide the 
applicant a preliminary estimate of the Service's application 
evaluation and processing costs using the information provided by the 
applicant during or after the preapplication meeting.
    (3) After receiving a complete application, the Regional Director 
will estimate the Service's application evaluation and processing costs 
using the information the applicant provided in the application and 
during or after the preapplication meeting.
    (4) Unless reimbursement is waived as provided under paragraph (c) 
of this section, the applicant must submit a payment to reimburse the 
Service for its estimated costs before the Service will evaluate and 
process the right-of-way permit application.
    (5) If the Service's cost to evaluate and process the right-of-way 
application exceeds the estimated amount, the Regional Director will 
promptly notify the applicant of the deficient amount, and the 
applicant must submit payment for the deficient amount before the 
Service will issue a right-of-way permit. The Regional Director will 
refund any overpayments at the request of the applicant.
    (b) Monitoring activities. (1) By accepting a permit under this 
subpart, the permit holder agrees to reimburse the Service for the 
costs incurred for all monitoring activities, which include monitoring 
the construction, operation, maintenance, and termination of 
facilities, to ensure compliance with the terms, conditions, and 
stipulations of the right-of-way permit.
    (2) The Regional Director will estimate the total costs the Service 
expects to incur for monitoring activities over the permit term using 
the information the applicant provided in the application and during or 
after the preapplication meeting.
    (3) At the discretion of the Regional Director, the Service may 
require reimbursement for its estimated monitoring costs in a lump-sum 
payment before the Service issues a right-of-way permit, or at periodic 
intervals, not to exceed 5 years, specified in the permit.
    (4) When reimbursement for costs for monitoring activities is 
required at periodic intervals specified in the permit, the Regional 
Director will review the amount of reimbursement not more than every 5 
years after the issuance of the permit. The Regional Director will 
provide the permit holder with written notice of intent to impose new 
charges to reflect current monitoring costs commencing with the ensuing 
charge year. The revised charges will be effective unless the permit 
holder files an appeal in accordance with Sec.  29.26.
    (c) Waiver of reimbursement for Service costs. (1) No reimbursement 
for Service costs for right-of-way application evaluation and 
processing activities and monitoring activities will be required of:
    (i) State or local governments or agencies or related 
instrumentalities;
    (ii) Federal Government agencies; or
    (iii) Private individuals or organizations when the proposed right-
of-way contributes to the Service's operation or maintenance of the 
refuge

[[Page 99745]]

or fish hatchery as certified in writing by the Regional Director.
    (2) Additionally, the Regional Director has the discretion to waive 
reimbursement for Service costs for right-of-way application evaluation 
and processing activities and monitoring activities so long as there 
are appropriated funds for these activities.
    (3) When reimbursement for Service costs for monitoring activities 
is waived during the permit term, the permit will contain a statement 
to that effect.
    (4) Reimbursement of costs is required and cannot be waived for any 
right-of-way permit issued under section 28 of the Mineral Leasing Act 
of 1920, as amended (30 U.S.C. 181 et seq.).
    (d) Service use of payments received for reimbursement of costs. 
Payments received by the Service to reimburse the United States for the 
costs incurred in evaluating and processing applications, and for 
monitoring, will be deposited into the United States Treasury until 
such time that any provision of law allows these payments to supplement 
the Service's appropriation.


Sec.  29.19   Nature of interest granted.

    (a) Where the land administered by the Service is owned in fee by 
the United States and the right-of-way is compatible with the 
objectives of the area, the Service may issue a permit after it is 
approved in writing by the Regional Director.
    (b) For rights-of-way permitted under authority of section 28 of 
the Mineral Leasing Act of 1920, as amended (30 U.S.C. 181 et seq.), 
for pipelines for the transportation of oil, natural gas, synthetic 
liquid, or gaseous fuels, or any refined product produced from these 
substances:
    (1) The permit term may not exceed 30 years.
    (2) The right-of-way may not exceed 50 feet in width, plus the area 
occupied by the pipeline and its related facilities, unless the 
Regional Director finds, and records in writing the reasons for the 
finding based on the analysis in a compatibility determination, that a 
wider right-of-way is necessary for operation and maintenance after 
construction and to protect the environment or public safety. ``Related 
facilities'' include but are not limited to valves, pump stations, 
supporting structures, bridges, monitoring and communication devices, 
surge and storage tanks, and terminals.
    (c) For rights-of-way other than those referred to in paragraph (b) 
of this section, the permit term may be up to 50 years when the 
Regional Director deems it appropriate, or a lesser term.
    (d) The Service may issue a temporary permit supplementing a right-
of-way for additional land needed during construction, operation, 
maintenance, or termination of the pipeline, or to protect the natural 
environment or public safety.
    (e) Unless otherwise provided, no interest granted shall give the 
grantee any right whatsoever to remove any material, earth, or stone 
for construction or other purpose, except that stone or earth 
necessarily removed from the right-of-way in the construction of a 
project may be used elsewhere along the same right-of-way in the 
construction of the same project.


Sec.  29.20  Terms and conditions.

    (a) Prior rights. Any right-of-way permit issued will be subject to 
rights reserved, if any, by a prior owner, and rights held, if any, by 
a third party.
    (b) Agreement of terms and conditions. An applicant, by accepting a 
permit, agrees to such terms and conditions as may be prescribed by the 
Regional Director, including special stipulations required to ensure 
the permitted use is compatible with the mission of the Refuge System 
and the purpose(s) of the refuge. (See Sec.  29.24 for specific 
requirements for electric powerlines and Sec.  29.25 for specific 
requirements for oil and gas pipelines.)
    (c) Terms and conditions required for all permit holders. In 
addition to any terms and conditions prescribed by the Regional 
Director, the permit holder must agree to all of the following terms 
and conditions:
    (1) The permit is for the specific use described and may not be 
construed to authorize any other use within the permit area unless 
approved in writing by the Regional Director upon determination by the 
Service project manager that the additional use is a compatible use.
    (2) The permit may be amended only by a written instrument signed 
and executed by the Regional Director and the permit holder.
    (3) The permit holder may not transfer or assign the permit to 
another party without obtaining the Regional Director's prior written 
approval.
    (4) The permit holder may not allow another party to collocate 
equipment or activities on their infrastructure or right-of-way unless 
the other party first obtains a right-of-way permit from the Service. 
Any entity that wants to collocate equipment or activities must apply 
for its own Service right-of-way permit by following the procedures set 
forth in Sec.  29.15.
    (5) The permit holder is responsible for ensuring that its 
officers, employees, representatives, agents, contractors, and 
subcontractors are familiar with the permit and comply with its terms 
and conditions.
    (6) The permit holder must provide the Service project manager with 
current contact information (company address, points of contact, 
telephone numbers, email addresses, etc.) for both routine and 
emergency communications, and, in the case of corporations, of the 
address of its principal place of business and the names and addresses 
of its principal officers.
    (7) Authorized representatives of the United States have the right 
to enter and inspect the permitted area at any time without providing 
prior notice to the permit holder.
    (8) The Regional Director may suspend or terminate all or any 
portion of the issued permit for failure of the permit holder to comply 
with any or all of the terms or conditions of the permit, or for 
abandonment.
    (i) A rebuttable presumption of abandonment is raised by deliberate 
failure of the permit holder to use the permit, for any continuous 2-
year period, for the purpose for which the permit was issued or 
renewed. In the event of noncompliance or abandonment, the Regional 
Director will notify the permit holder in writing of any intention to 
suspend or terminate the permit 60 days from the date of the notice and 
state the reasons, unless prior to that time the holder completes such 
corrective actions as are specified in the notice. The Regional 
Director may allow an extension of time within which to complete 
corrective actions if the Regional Director believes that extenuating 
circumstances, not within the permit holder's control, such as adverse 
weather conditions, disturbance to wildlife during breeding periods or 
periods of peak concentration, or other compelling reasons, warrant an 
extension.
    (ii) Should the holder of a right-of-way permit issued under 
authority of the Mineral Leasing Act of 1920, as amended (30 U.S.C. 181 
et seq.), fail to take corrective action within the 60-day period, the 
Regional Director will provide for an administrative proceeding, 
pursuant to 5 U.S.C. 554, prior to a final departmental decision to 
suspend or terminate the permit. In the case of all other right-of-way 
permit holders, failure to take corrective action within the 60-day 
period will result in a determination by the Regional Director to 
suspend or terminate the permit.
    (iii) No administrative proceeding is required in cases in which 
the permit terminates under its terms.

[[Page 99746]]

    (9) The permit holder must prevent the disturbance or removal of 
any public land survey monument or project boundary monument unless and 
until the permit holder has requested and received from the Regional 
Director written approval of measures that the permit holder will take 
to perpetuate the location of the monument.
    (10) The permit holder must conduct operations, including by 
setting their time and location, in a manner that avoids or minimizes 
impacts to fish and wildlife or their habitats, including, but not 
limited to, impacts caused by exposure to physical and chemical 
hazards, disruption of hydrologic processes, lighting and visual 
disturbance, and duration and frequency of noise.
    (11) The permit holder must comply with State and Federal laws and 
regulations that are applicable to the project within which the permit 
is issued and to the lands that are included in the right-of-way.
    (i) The permit holder must comply with the Archaeological Resources 
Protection Act (16 U.S.C. 470aa et seq.). The disturbance of 
archaeological or historical sites and the removal of artifacts from 
Federal land are prohibited.
    (ii) The permit holder must comply with the applicable requirements 
of the Migratory Bird Treaty Act of 1918 (16 U.S.C. 703-712), the 
Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.), the Wilderness 
Act of 1964 (16 U.S.C. 1131 et seq.), the Wild and Scenic Rivers Act of 
1968 (16 U.S.C. 1271 et seq.), and the National Historic Preservation 
Act of 1966 (54 U.S.C. 300101 et seq.).
    (iii) The permit holder must immediately suspend all activities and 
notify the Service project manager upon the discovery of any threatened 
or endangered species or archeological, paleontological, or historical 
resources within or near the permitted area. All natural and cultural 
resources discovered in the permitted area are the property of the 
United States.
    (12) The permit holder must clear and keep clear the lands within 
the permit area to the extent and in the manner directed by the Service 
project manager in charge; and to dispose of all vegetative and other 
material cut, uprooted, or otherwise accumulated during the 
construction and maintenance of the project so as to decrease the fire 
hazard and also in accordance with any instructions that the Service 
project manager specifies.
    (13) The permit holder must do everything reasonably within the 
permit holder's power, both independently and on request of any duly 
authorized representative of the United States, to prevent and suppress 
fires on or near the permitted area, including making available such 
construction and maintenance resources that are reasonably obtainable 
for the suppression of such fires.
    (14) After the expiration or termination of the permit, the permit 
holder must remove all facilities and equipment from the permitted area 
and restore the permitted area to its pre-permit condition as directed 
and approved by the Service project manager. Any facilities or 
equipment not removed within 6 months, unless more time is deemed 
necessary for conservation purposes by the Regional Director, will be 
deemed abandoned and will be disposed of in accordance with applicable 
Federal law. In that event, the permit holder will be liable to the 
Service for all of its costs in disposing of the facilities or 
equipment and restoring the permitted area.
    (15) In accordance with applicable Federal law, in the 
construction, operation, and maintenance of the project, the permit 
holder will not discriminate against any employee or applicant for 
employment because of race, color, religion, sex, or national origin 
and must require an identical provision to be included in all 
subcontracts.
    (16) The permit holder must pay the United States the full value 
for all damages to the lands or other property of the United States 
caused by the permit holder or that person's employees, contractors, or 
agents of the contractors.
    (i) In cases in which the permit is issued to a State or other 
governmental agency that has no legal power to assume such a liability 
with respect to damages caused to lands or property, that agency will 
repair all such damages.
    (ii) In cases in which the permit involves lands that are under the 
exclusive jurisdiction of the United States, the permit holder or his 
or her employees, contractors, or agents of the contractors will be 
liable to third parties for injuries incurred in connection with the 
permit area.
    (17) The permit holder will indemnify and hold harmless the United 
States and its officers, employees, agents, and representatives from 
and against all liability of any sort whatsoever arising out of the 
permit holder's activities under the permit. This agreement to 
indemnify and hold harmless from and against all liability includes 
liability under Federal or State environmental laws, including but not 
limited to the Comprehensive Environmental Response, Compensation, and 
Restoration Act, as amended (42 U.S.C. chapter 103); the Resource 
Conservation and Recovery Act, as amended (42 U.S.C. 6901 et seq.); and 
what is commonly known as the Clean Water Act, as amended (33 U.S.C 
1251-1387). This agreement to indemnify and hold harmless will survive 
the permit's termination or expiration.
    (18) The Regional Director may require permit modifications at any 
future date to ensure that the permitted use is compatible with the 
Refuge System mission and the purpose(s) of the refuge. Required permit 
modifications could include but are not limited to changes to permit 
conditions and/or additional stipulations that a Regional Director 
deems necessary based on new information.
    (d) Terms and conditions required of most permit holders. The 
permit holder must also agree to the following terms and conditions, 
which are required unless the Regional Director determines they are not 
relevant to the proposed use:
    (1) The permit holder may not restrict public access to any portion 
of the permitted area unless the Service project manager concurs in 
writing that making the area accessible to the public would pose a 
threat to public safety or the environment.
    (2) The permit holder must notify the Service project manager in 
writing at least 5 business days before conducting any maintenance or 
nonemergency repair work within the permitted area. The written notice 
must describe the location of the proposed work, the equipment to be 
used, and the size of work crews anticipated to be working on Service 
land. The Service project manager may require an onsite meeting before 
any maintenance or nonemergency repair work commences and may assign a 
site monitor to be present during such work. Except in emergencies, all 
work in the permitted area must be conducted during normal business 
hours. To respond to an emergency, the permit holder may enter the 
permitted area at other times to conduct repair work after calling the 
Service project manager.
    (3) The permit holder must erect and maintain appropriate warning 
signs, barricades, or other warning devices during all periods when the 
permit holder is using the permitted area, including periods of 
maintenance or repair.
    (4) The permit holder must rebuild and repair such roads, fences, 
structures, and trails as may be

[[Page 99747]]

destroyed or injured by construction work.
    (5) Notwithstanding the issuance of the permit, the Service may 
establish trails, roads, or other improvements across, over, on, or 
through the permitted area for use by the Service, by visitors, or by 
others.
    (6) Upon request by the Regional Director, the permit holder must 
build and maintain necessary and suitable crossings for all roads and 
trails that intersect the works constructed, maintained, or operated 
under the right-of-way.
    (7) The permit holder must take any soil and resource conservation 
and protection measures, including weed control, on the land covered by 
the permit that the Service project manager in charge requests.
    (8) The permit holder must provide for habitat connectivity on the 
land covered by the permit to the maximum extent possible, for example 
through use of wildlife-friendly fencing, perches or perch deterrents 
for birds, fish-passable culverts, vegetative screening or hiding 
cover, that the Service project manager in charge requests.
    (9) The permit holder must promptly notify the Service project 
manager in charge of the amount of merchantable timber, if any, that 
will be cut, removed, or destroyed in the construction and maintenance 
of the project, and to pay the United States in advance of construction 
such sum of money that the project manager determines to be the full 
stumpage value of the timber to be cut, removed, or destroyed.
    (10) Issuance of the permit is subject to the express condition 
that the exercise of the permit will not unduly interfere with the 
management, administration, or disposal by the United States of the 
land to be affected. The permit holder agrees and consents to the 
occupancy and use by the United States, or its grantees, permittees, or 
lessees, of any part of the permit area not actually occupied for the 
purpose of the permitted rights to the extent that the use does not 
unreasonably interfere with the permit holder's use of the permitted 
area.
    (11) Any facility constructed on the permit area will be modified 
or adapted, if modification is found by the Regional Director to be 
necessary, without liability or expense to the United States, so that 
the facility will not conflict with the use and occupancy of the land 
for any authorized works that may be constructed on the land under the 
authority of the United States. The modification will be planned and 
scheduled so as not to interfere unduly with or to have minimal effect 
upon continuity of energy and delivery requirements for Service 
facilities.
    (e) General liability insurance. The Service may require the permit 
holder to procure and maintain in force and effect during the term of 
the permit commercial general liability insurance to protect against 
claims arising out of the acts or omissions of the permit holder or its 
officers, employees, agents, or representatives while conducting the 
activities authorized by the permit. The insurance policy must also 
provide coverage for discharges or escapes of pollutants or 
contaminants into the environment, including sudden or accidental 
discharges or escapes. The Regional Director will determine the minimum 
amount of coverage per occurrence and in the aggregate. The policy must 
be issued by a company duly licensed to do business in the State where 
the project is located and must name the United States of America as an 
additional insured. Before the Regional Director executes the permit, 
the applicant must provide the Service with a copy of its certificate 
of insurance showing the required coverage.
    (f) Bonds. The Service may require a bond for a permit when the 
Regional Director determines that the Service is likely to incur 
reclamation costs during or after the term of the right-of-way due to 
the construction, operation, or maintenance of the right-of-way. The 
Service also may require a bond for a permit when the Service is likely 
to incur reclamation costs if the right-of-way is abandoned or 
terminated.
    (1) No bond will be required of a Federal, State, or local 
government or its agent or instrumentality, except those that are:
    (i) Using the facility, system, space, or any part of the right-of-
way area for commercial purposes; or
    (ii) A municipal utility or cooperative whose principal source of 
revenue is customer charges.
    (2) When the Service requires a bond, the permit holder must agree 
to the following terms and conditions: Before the permit's effective 
date, the permit holder must file with the Service a performance bond 
payable to the Service, issued by a surety satisfactory to the Service, 
to guarantee its compliance with all terms and conditions of the permit 
and with all applicable laws and regulations. The Regional Director 
will determine the amount of the bond and with whom it must be filed.
    (g) Communications facilities. If the permit is for a 
communications facility as defined by the Mobile Now Act (47 U.S.C. 
1455(d)(1)), and the permit holder will operate or maintain wireless 
communications equipment, then they must also agree to the following 
terms and conditions. These terms and conditions are not applicable to 
neutral host providers, sometimes referred to as tower companies, that 
own and maintain tower or support structures but do not operate or 
maintain wireless communications equipment on those structures.
    (1) The permit holder agrees that use of wireless communications 
equipment is contingent upon the possession of a valid Federal 
Communications Commission (FCC) or National Telecommunications and 
Information Administration (NTIA) authorization/license (if required), 
and the operation of the equipment is in strict compliance with 
applicable requirements of FCC or NTIA. A copy of each applicable 
license or authorization must be maintained at all times by the permit 
holder for each transmitter being operated. The permit holder must 
provide the Service project manager, when requested, with current 
copies of all licenses for equipment in or on facilities covered by the 
permit.
    (2) The permit holder must, at the permit holder's sole cost and 
expense, take all necessary actions to comply with all applicable FCC 
radio frequency (RF) exposure regulations and requirements, and take 
reasonable precautions so that neither workers nor the public are 
subject to RF exposures above the FCC specific levels.
    (3) The permit holder agrees that the provisions of 18 U.S.C. 431 
(contracts by Member of Congress) and 41 U.S.C. 6306 (prohibition on 
Members of Congress making contracts with the Federal Government) apply 
to the permit, as if set forth in full.


Sec.  29.21  Construction.

    (a) If construction is not commenced within 2 years after the date 
of the right-of-way grant, the right-of-way may be canceled by the 
Director of the U.S. Fish and Wildlife Service.
    (b) Upon completion of construction, the applicant shall file a 
certification of completion with the Regional Director.


Sec.  29.22   Disposal, transfer, or termination of interest.

    (a) Change in jurisdiction over and disposal of lands. The final 
disposal by the United States of any tract of land traversed by a 
right-of-way shall not be construed to be a revocation of the right-of-
way in whole or in part, but such final disposition shall be deemed and 
taken to be subject to such right-of-way unless it has been 
specifically canceled.
    (b) Transfer of permit. Any proposed transfer, by assignment, 
lease, operating agreement or otherwise, of a permit

[[Page 99748]]

must be filed with the Regional Director and must be supported by a 
stipulation that the transferee agrees to comply with and be bound by 
the terms and conditions of the original permit. A $100 nonrefundable 
service fee must accompany the proposal. No transfer will occur unless 
and until approved in writing by the Regional Director.
    (c) Disposal of property on termination of right-of-way. In the 
absence of any agreement to the contrary:
    (1) The holder of the right-of-way must, within 6 months after 
termination of the right-of-way, remove all property or improvements 
placed there by the holder, other than a road and usable improvements 
to a road.
    (2) After 6 months, all property and improvements in the right-of-
way area become the property of the United States.
    (3) The Regional Director may use discretion to extend this 
timeframe.


Sec.  29.23   Required payment for use and occupancy of National 
Wildlife Refuge System land.

    (a) Payment for use and occupancy of lands under the regulations of 
this subpart is required for the fair market value or fair market 
rental value as determined by the Regional Director using any method 
approved by the Department of the Interior to determine those values.
    (1) At the discretion of the Regional Director, the payment may be 
a fair market rental payment, paid annually, or a lump-sum payment, 
made before permit issuance.
    (2) If any Federal, State, or local agency is exempt from payment 
under any other provision of Federal law, the agency must inform the 
Service of the applicable Federal law during the preapplication meeting 
required by Sec.  29.14. The agency must also otherwise compensate the 
Service by any other means acceptable to the Regional Director, 
including, but not limited to, making other land available or loaning 
of equipment or personnel, except that any such compensation must 
relate to, and be consistent with, the mission of the National Wildlife 
Refuge System. For agencies exempted from payment by law, the Regional 
Director may waive the requirement for other compensation upon finding 
this requirement to be impracticable or unnecessary.
    (b) The terms of the permit will specify the amount of the lump sum 
paid by the applicant for use and occupancy during the current permit 
term, or, if applicable, the initial annual rental payment amount for 
use and occupancy of the permitted area.
    (c) When annual rental payments are used, the Regional Director 
will periodically review and adjust the charges to reflect fair market 
value. The Regional Director will provide the permit holder with 
written notice of intent to impose new charges to reflect fair market 
value commencing with the ensuing charge year. The revised charges will 
be effective unless the permit holder files an appeal in accordance 
with Sec.  29.26.
    (d) Payments received by the Service for use and occupancy of 
rights-of-way on Refuge lands and interests in land will be deposited 
into the Migratory Bird Conservation Fund to carry out the land-
acquisition provisions of the Migratory Bird Conservation Act (16 
U.S.C. 715 et seq.) and the Migratory Bird Hunting Stamp Act (16 U.S.C. 
718 et seq.). Payments received for use and occupancy of rights-of-way 
on other Service-managed lands and interests in land will be deposited 
into the National Wildlife Refuge Fund, to make payments annually to 
counties and other units of local government in accordance with 
regulations in 50 CFR part 34.


Sec.  29.24  Electric power transmission line rights-of-way.

    By accepting a right-of-way for a power transmission line, the 
applicant thereby agrees and consents to comply with and be bound by 
the following terms and conditions, except those which the Secretary 
may waive in a particular case, in addition to those specified in Sec.  
29.20.
    (a) To protect in a workmanlike manner, at crossings and at places 
in proximity to the transmission lines on the right-of-way authorized, 
in accordance with the rules prescribed in the National Electric Safety 
Code, all Government and other telephone, telegraph, and power 
transmission lines from contact and all highways and railroads from 
obstruction and to maintain the transmission lines in such manner as 
not to menace life or property.
    (b) Neither the privilege nor the right to occupy or use the lands 
for the purpose authorized shall relieve the applicant of any legal 
liability for causing inductive or conductive interference between any 
project transmission line or other project works constructed, operated, 
or maintained by the applicant on the servient lands, and any radio 
installation, telephone line, or other communication facilities now or 
hereafter constructed and operated by the United States or any agency 
thereof.


Sec.  29.25  Rights-of-way for pipelines for the transportation of oil, 
natural gas, synthetic liquid, or gaseous fuels, or any refined product 
produced from these substances.

    (a) Application procedure. (1) Applications for pipelines and 
related facilities under this section are to be filed in accordance 
with Sec.  29.15 with the following exception: When the right-of-way or 
proposed facility will occupy Federal land under the control of more 
than one Federal agency or more than one bureau or office of the 
Department of the Interior, a single application must be filed with the 
appropriate State Director of the Bureau of Land Management in 
accordance with regulations in 43 CFR part 2800.
    (2) Any portion of the facility occupying land of the National 
Wildlife Refuge System is subject to the provisions of the regulations 
in this part.
    (b) Right-of-way permits. Right-of-way permits issued under this 
section are subject to the special requirements of section 28 of the 
Mineral Leasing Act of 1920, as amended (30 U.S.C. 181 et seq.). 
Gathering lines and associated structures used solely in the production 
of oil and gas under valid leases on the lands administered by the 
Service are excepted from the provisions of this section.
    (1) Pipeline safety. Right-of-way permits issued under this section 
will include requirements that will protect the safety of workers and 
protect the public from sudden ruptures and slow degradation of the 
pipeline. An applicant must agree to design, construct, and operate all 
proposed facilities in accordance with the provisions of 49 CFR part 
192 or 195 and in accordance with the Occupational Safety and Health 
Act of 1970 (29 U.S.C. 651 et seq.) and any future amendments to that 
act.
    (2) Environmental protection. An application for a right-of-way 
must contain environmental information required by Sec.  29.16(c)(4). 
The applicant must also provide a plan of construction, operation, and 
rehabilitation of the proposed facilities. In addition to terms and 
conditions imposed under Sec.  29.20, the Regional Director will impose 
any stipulations required to ensure:
    (i) Restoration, revegetation, and curtailment of erosion of the 
surface;
    (ii) That activities in connection with the right-of-way or permit 
will not violate applicable air- and water-quality standards in related 
facilities siting standards established by law;
    (iii) Control or prevention of damage to the environment, including 
damage to fish and wildlife habitat, public or

[[Page 99749]]

private property, and public health and safety; and
    (iv) Protection of the interests of individuals living in the 
general area of the right-of-way who rely on the fish, wildlife, and 
biotic resources of the area for subsistence purposes.
    (c) Disclosure. Applicants that are a partnership, corporation, 
association, or other business entity must disclose the identity of all 
participants. Such disclosure will include where applicable:
    (1) The name and address of each partner;
    (2) The name and address of each shareholder owning 3 percent or 
more of the shares, together with the number and percentage of any 
class of voting shares that the shareholder is authorized for voting 
purposes; and
    (3) The name and address of each affiliate of the entity, together 
with, in the case of an affiliate controlled by the entity, the number 
of shares and the percentage of any class of voting stock of that 
affiliate owned, directly or indirectly, by that entity, and in the 
case of an affiliate that controls the entity, the number of shares and 
the percentage of any class of voting stock of the entity owned, 
directly or indirectly, by the affiliate.
    (d) Technical and financial capability. The Regional Director may 
require a financial statement and will issue or renew a right-of-way 
permit under this section only when satisfied that the applicant has 
the technical and financial capability to construct, operate, maintain, 
and terminate the facility.
    (e) Reimbursement of costs. (1) In accordance with Sec.  29.18, 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.
    (2) Payments received by the Service to reimburse the United States 
for the costs incurred in monitoring the construction, operation, 
maintenance, and termination of any pipeline or related facilities will 
be deposited into the United States Treasury until such time that any 
provision of law allows these payments to supplement the Service's 
appropriation.
    (f) Public hearing. The Regional Director will give notice to 
Federal, State, and local government agencies and the public of the 
opportunity to comment on right-of-way applications under this section. 
A notice will be published in the Federal Register, and a public 
hearing may be held where appropriate.
    (g) Bonding. Where appropriate, the Regional Director will require 
the holder of a right-of-way permit to furnish a bond or other 
satisfactory financial assurance to secure all or any of the 
obligations imposed by the terms and conditions of the right-of-way 
permit or by any rule or regulation, not to exceed the period of 
construction plus 1 year or a longer period if necessary for the 
pipeline to stabilize or for any reclamation or restoration 
requirements to be met.
    (h) Suspension of right-of-way. If the project manager determines 
that an immediate temporary suspension of activities within a right-of-
way permit area is necessary to protect public health and safety or the 
environment, the project manager may issue an emergency suspension 
order to abate such activities prior to an administrative proceeding. 
The Regional Director must make a determination and notify the permit 
holder in writing within 15 days from the date of suspension as to 
whether the suspension should continue and list actions needed to 
terminate the suspension. The suspension will remain in effect for only 
so long as an emergency condition continues.
    (i) Joint use of rights-of-way. Each right-of-way permit will 
reserve to the Regional Director the right to issue additional right-
of-way permits for compatible uses on or adjacent to permitted rights-
of-way areas after giving notice to the permit holder and an 
opportunity to comment.
    (j) Common carriers. Pipelines and related facilities used for the 
transportation of oil, natural gas, synthetic liquid, or gaseous fuels, 
or any refined product made from these substances will be constructed, 
operated, and maintained as common carriers.
    (1) The owners or operators of pipelines subject to the regulations 
in this subpart will accept, convey, transport, or purchase without 
discrimination all oil or gas delivered to the pipeline without regard 
to whether such oil or gas was produced on Federal or non-Federal 
lands.
    (2) In the case of oil or gas produced from Federal lands or from 
the resources on the Federal lands in the vicinity of the pipelines, 
the Secretary may, after a full hearing following due notice to the 
interested parties and a proper finding of facts, determine the 
proportionate amounts to be accepted, conveyed, transported, or 
purchased.
    (3) The common carrier provisions of this section will not apply to 
any natural gas pipeline operated by any person subject to regulation 
under the Natural Gas Act (15 U.S.C. ch. 15B, sec. 717 et seq.) or by 
any public utility subject to regulation by a State or municipal 
regulatory agency having jurisdiction to regulate the rates and charges 
for the sale of natural gas to consumers within the State or 
municipality.
    (4) The owners or operators of pipelines will purchase, without 
discrimination, any natural gas produced in the vicinity of the 
pipeline that is offered for sale unless that natural gas is subject to 
State regulatory or conservation laws governing its purchase by owners 
or operators of pipelines.
    (k) Required information. The Regional Director will require, prior 
to issuing or renewing a right-of-way permit, that the applicant submit 
and disclose all plans, contracts, agreements, or other information or 
material that the Regional Director deems necessary to determine 
whether to issue or renew the right-of-way permit or the terms and 
conditions that should be included in the permit. That information may 
include, but is not limited to:
    (1) Conditions for and agreements among owners or operators 
regarding the addition of pumping facilities, looping, or otherwise 
increasing the pipeline or terminal's throughput capacity in response 
to actual or anticipated increases in demand;
    (2) Conditions for adding or abandoning intake, offtake, or storage 
points or facilities; and
    (3) Minimum shipment or purchase tenders.
    (l) State standards. The Regional Director will take into 
consideration, and to the extent practical comply with, applicable 
State standards for right-of-way construction, operation, and 
maintenance, taking into account any additional standards necessary to 
protect refuge resources.
    (m) Congressional notification. The Secretary will promptly notify 
the Committee on Natural Resources of the United States House of 
Representatives and the Committee on Energy and Natural Resources of 
the United States Senate upon receipt of an application for a right-of-
way for pipeline 24 inches or more in diameter, and no right-of-way 
permit for such a pipeline will be issued until a notice of intention 
to permit the right-of-way, together with the Secretary's detailed 
findings as to the terms and conditions the Secretary proposes to 
impose, has been submitted to those committees.


Sec.  29.26   Hearing and appeals procedures.

    (a) Application for a right-of-way. When denial of an application 
for a

[[Page 99750]]

right-of-way permit is based on a determination that the proposed use 
is not compatible with the purposes for which the area was established, 
the denial may be appealed to the Regional Director and subsequently to 
the Director, but no further.
    (b) Existing authorized right-of-way. The termination of an 
existing authorized right-of-way permit may be appealed to the Regional 
Director and subsequently to the Director and then further appealed to 
the Secretary.
    (c) Grant of a requested right-of-way. A party with standing may 
appeal the Service's decision to issue a requested right-of-way permit 
to the Regional Director, subsequently to the Director, and finally to 
the Secretary.
    (d) Appeals to the Secretary. Appeals to the Secretary must follow 
the applicable regulations in 43 CFR part 4.


Sec.  29.27  Severability.

    If a court holds any provisions of the regulations in this subpart 
or their applicability to any person or circumstance invalid, the 
remainder of the regulations in this subpart and their applicability to 
other people or circumstances will not be affected.

Shannon Estenoz,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2024-28367 Filed 12-10-24; 8:45 am]
BILLING CODE 4333-15-P`