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Friday,

April 22, 2005

Part II

Department of the
Interior
Bureau of Land Management

43 CFR Part 2800, et al.


Rights-of-Way, Principles and Procedures;
Rights-of-Way Under the Federal Land
Policy and Management Act and the
Mineral Leasing Act; Final Rule

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20970 Federal Register / Vol. 70, No. 77 / Friday, April 22, 2005 / Rules and Regulations

DEPARTMENT OF THE INTERIOR I. Background If you are not familiar with our right-
of-way application process or local BLM
Bureau of Land Management BLM published the proposed rule in jurisdictions, the best place to start is by
the Federal Register on June 15, 1999 contacting a BLM State Office listed in
43 CFR Parts 2800, 2810, 2880, 2920, (see 64 FR 32106) for a 120-day our regulations at 43 CFR 1821.10.
9230, and 9260 comment period ending on October 13, Please note that each state office
1999. As a result of public requests for oversees a number of field offices.
extensions of the comment period, on Depending on your project, you may be
[WO 350 05 1430 PN]
October 13, 1999, we extended the working primarily with personnel at a
public comment period for 30 days BLM field office.
RIN 1004–AC74 ending on November 12, 1999. We As a general rule, you need a right-of-
Rights-of-Way, Principles and received 63 comment letters on the way grant whenever you plan to build
Procedures; Rights-of-Way Under the proposed rule. We address public a right-of-way facility on public lands.
Federal Land Policy and Management comments in the section-by-section Some examples of land uses which
Act and the Mineral Leasing Act discussion of this preamble. require a right-of-way grant include:
In these regulations we use the terms transmission lines, communication
AGENCY: Bureau of Land Management, ‘‘previous regulations’’ and ‘‘final sites, roads, highways, trails, telephone
Interior. regulations.’’ ‘‘Previous regulations’’ lines, canals, flumes, pipelines, and
ACTION: Final rule. refers to the regulations in effect prior reservoirs.
to June 21, 2005. ‘‘Final regulations’’ You do not need a right-of-way grant
The Bureau of Land Management means the regulations in this final rule. for ‘‘casual use’’ activities. Examples of
(BLM) is amending its regulations This final rule will replace the casual use include driving vehicles over
governing rights-of-way issued under regulations in parts 2800 and 2880 of existing roads, sampling, surveying,
both the Federal Land Policy and the October 2004 edition of Title 43 of marking routes, collecting data to
Management Act (FLPMA) and the the Code of Federal Regulations. prepare an application for a right-of-
Mineral Leasing Act (MLA). This final way, and performing certain activities
rule revises BLM cost recovery General Information About BLM Right-
that ordinarily result in no, or
(processing and monitoring fee) policies of-Way Grants Basis and Purpose of
negligible, disturbance of the public
and procedures for issuing right-of-way These Regulations
lands or resources. ‘‘Casual use’’ is
grants and adjusts cost recovery fees to Each year, thousands of individuals defined in sections 2801.5 and 2881.5
take into account cost increases since and companies apply to BLM to obtain and is addressed in sections 2804.29
the previous regulations became a right-of-way grant on public lands. A and 2884.25 of this final rule. We
effective in August 1987. The rule also right-of-way grant is an authorization to encourage you to contact BLM and
eliminates automatic exemptions from use a specific piece of public land for a discuss your planned activity before
cost recovery fees for Federal agencies, certain project, such as roads, pipelines, assuming your use is casual. BLM can
except for those agencies and projects transmission lines, and communication then make a judgment based on your
exempted by law. It establishes policies sites. The grant authorizes a specific use particular activity.
related to paying rent in advance and of the land for a specific period of time.
adds a financial penalty for paying rents Steps In Applying for a Right-of-Way
The term ‘‘grant’’ is defined in the
late and allows for automatic definitions sections in both parts of this (A) Contact the BLM office having
adjustment to cost recovery fees based rule. The definition of ‘‘grant’’ in part management responsibility for the land
on an economic indicator. This final 2800 applies to grants authorized by where you need the right-of-way.
rule also clarifies how BLM applies the Title V of FLPMA, 43 U.S.C. 1761, and (B) Arrange a preapplication meeting
rent schedules for communication site the definition in part 2880 applies to with the field office manager or
rights-of-way and reorganizes the grants authorized by the MLA at 30 appropriate staff. During this meeting,
regulations in a manner similar to the U.S.C. 185. Generally, BLM issues a participants will jointly review the
sequence in which BLM takes action on right-of-way grant for a term application requirements and Standard
applications and monitors issued grants. commensurate with the life of the Form (SF) 299, Application for
DATES: Effective Date: This final rule is project. Typically, BLM issues grants Transportation and Utility Systems and
effective June 21, 2005. with 30-year terms, and most can be Facilities on Federal Lands, to
FOR FURTHER INFORMATION CONTACT: Bil renewed. This final rule covers FLPMA determine what information BLM needs.
Weigand at (208) 373–3862, or Ian Senio grants for rights-of-way that cross public If you contact us ahead of time to set up
at (202) 452–5049, or write to Director lands and MLA grants for rights-of-way the meeting, we can often arrange to
(630), Bureau of Land Management, that cross Federal lands. We cover hold the meeting at the site of your
Eastern States Office, 7450 Boston general provisions for right-of-way proposed use.
(C) When you have all the
Boulevard, Springfield, Virginia 22153, grants in subparts 2801 and 2881 of this
information, bring or mail the
Attention: RIN 1004–AC 74. final rule.
application, along with the
Persons who use a BLM places a high priority on nonrefundable application processing
telecommunications device for the deaf working with applicants on proposed fee, to the appropriate BLM office.
may contact these persons through the rights-of-way to provide for the This final rule covers the application
Federal Information Relay Service at 1– protection of resource values and to process for FLPMA right-of-way grants
800–877–8339 24 hours a day, seven process applications timely. Careful in subparts 2803 and 2804, and the
days a week. advance planning with BLM personnel application process for MLA grants in
SUPPLEMENTARY INFORMATION: is strongly encouraged. If we know subparts 2883 and 2884.
I. Background about your plans early, we can work
with you to tailor your project to avoid Preapplication Meeting
II. Final Rule as Adopted and Response to
Comment many problems and costly delays later The preapplication meeting is an
III. Procedural Matters in the process. important part of the process for both

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Federal Register / Vol. 70, No. 77 / Friday, April 22, 2005 / Rules and Regulations 20971

you and BLM. The meeting provides the processing fees, monitoring fees, and for a temporary use permit (TUP). The
opportunity for you to fully discuss and rent. MLA specifically authorizes BLM to
describe your proposal in detail and Processing Fees. This cost recovery issue temporary use permits associated
provides an opportunity for BLM to charge reimburses the United States in with MLA grants (see 30 U.S.C. 185(e)).
fully explain processing requirements. advance for the expected administrative BLM can grant TUPs for up to three
The preapplication meeting may also and other costs we incur in processing years. If you require additional land for
cover fees, safety, work schedules, and the application. You must pay your FLPMA grant, you will need to
other items. This meeting has the processing fees when you submit the apply for a short term grant for the
potential to save both you and BLM written application. BLM will use the additional lands. FLPMA specifically
time and expense. For example, in information presented during the authorizes temporary use of additional
FLPMA, Congress directed that ‘‘rights- preapplication meeting to estimate the lands for FLPMA grants (see 43 U.S.C.
of-way in common’’ (common use of a application processing fee. Subparts 1764(a)). You should discuss TUP and
right-of-way area by multiple grant 2804 and 2884 of this final rule address short term right-of-way grant needs with
holders) be required, to the extent processing fees. BLM during the preapplication meeting.
practical, in order to minimize adverse Monitoring Fees. This cost recovery You can apply for a TUP or a short
environmental impacts and the charge is a nonrefundable fee to term grant at the same time you apply
proliferation of separate rights-of-way. reimburse the United States for the cost for a right-of-way by describing the
This is accomplished through a system of monitoring compliance with the dimension and location of the
of designated right-of-way corridors and terms and conditions of the right-of-way additional lands, and the term you need
co-locating communication uses on grant, including your obligation to in item 7 of the standard right-of-way
existing towers and within multi- protect and rehabilitate the lands application (SF–299), or by describing
occupancy buildings when feasible. covered by the right-of-way. BLM will this information in your Plan of
During the preapplication meeting, BLM monitor your construction, operation, Development, as part of your
staff may examine the proposed right-of- and maintenance of the right-of-way application. You may also apply for a
way use to see if it would fit in an and, when the time comes, the TUP or short term grant after BLM
existing corridor or in an existing shutdown of your activities and the grants your right-of-way. In this case,
communication facility. Sections termination of the right-of-way grant. you must use a separate SF–299 form,
2804.10 and 2884.10 of this final rule Subparts 2805 and 2885 of this final and pay additional processing and
address preapplication meetings. rule address monitoring fees. monitoring fees for BLM to process the
Application forms are available at Rents. This is a charge for locating TUP or short term grant. This might
every BLM office and on the Internet at your right-of-way facility on public or require a separate environmental
www.blm.gov/nhp/what/lands/realty/ Federal lands. It is payable (for a clearance and take additional processing
forms/299/index.html. BLM wants to specified term) before we issue the grant time. If there is a possibility that you
make the application process as easy as and is based on the fair market value of may need extra width or space, it is best
possible. Accordingly, the application the rights we authorize. We usually to identify this in your original right-of-
form (SF–299) requests a minimum establish the rental for linear and way application. Part 2800 of this final
amount of information. Even so, communication sites on public lands via rule addresses short term grants and
incomplete information is often the two separate administrative schedules. part 2880 of this final rule addresses
reason BLM cannot process your Based roughly on land values in the TUPs.
application quickly. project area, these schedules are
To avoid problems, you should adjusted annually using an economic Processing a Right-of-Way Application
review the form prior to your index. In some cases, the rental is Once you file an application with
preapplication meeting and, if possible, established by an appraisal. Subparts BLM, we will review it to make sure you
complete it before or during the 2806 and 2885 of this final rule address have included all necessary
preapplication meeting with BLM. Be these schedules and other rent issues. information. We will then review and
sure to bring any information that you Exemptions, waivers, or reductions in evaluate the application contents and
believe BLM would find useful during the processing, monitoring, or rental determine the probable impact of the
this session. For example, item 8 fees may apply to your application and activity on the social, cultural,
requests a map of the project area. You BLM officials can explain these during economic, and physical environment.
may already have a survey or other the preapplication meeting. Subparts BLM will also check to see if the
adequate map that will satisfy this 2804, 2806, 2884, and 2885 of this final proposed right-of-way is consistent with
requirement. rule cover these issues. the existing land use plan, and will
You should arrange for your check to see what valid existing rights
Temporary Use Permits and Short Term
preapplication meeting well in advance currently exist on the lands in question.
Grants
of when you would like to start work on BLM may deny a right-of-way
the project. Processing time for an All activities associated with the application for any number of reasons.
average grant is 60 to 90 days. However, construction, operation, maintenance, A preapplication meeting will reduce
grants for complex projects can take and termination of your right-of-way the possibility of BLM denying your
much longer to process. Try to contact grant must be within the specified limits application. Sections 2804.26 and
BLM as soon as possible. The field of the authorization. Item 7 on the right- 2804.27 and sections 2884.23 and
office manager and staff are ready to of-way application form is where you 2884.24 of this final rule address denials
provide information, advice, and would identify your need for the use of of grant or TUP applications.
assistance to help you prepare your additional land during, for example, the
construction phase of your project. This Appeals
application.
additional land may be necessary for If BLM denies your application, the
Costs construction, stockpiling of excess official written decision will give the
Both FLPMA (43 U.S.C. 1764(g)) and materials, equipment parking, and the reasons for the denial and information
the Mineral Leasing Act (30 U.S.C. like. If you require additional land for on how to file an appeal. You also have
185(l)) authorize BLM to charge your MLA grant, you will need to apply appeal rights at many other decision

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20972 Federal Register / Vol. 70, No. 77 / Friday, April 22, 2005 / Rules and Regulations

points in this final rule. In general, if Monitoring Your Grant person. A transfer of your grant is called
you are an applicant who is adversely BLM may inspect your project for an assignment. You must submit to
affected by a BLM written decision, you compliance with the terms and BLM, in writing, an application for the
may appeal that decision. Sections conditions of the grant and these proposed assignment, along with a
2801.10 and 2881.10 of these regulations. In addition, under the terms nonrefundable payment. BLM will not
regulations address appeals. of the grant, BLM reserves the right of recognize an assignment to the new
Liability access onto the lands covered by the owner until we approve it in writing.
right-of-way grant and, with reasonable BLM will approve the assignment if
As holder of a right-of-way grant you notice to the holder, the right of access doing so is in the public interest.
are responsible for damage or injury to and entry to any facility constructed in Sections 2807.21 and 2887.11 of this
the United States and to third parties in connection with the project (see
connection with the right-of-way use. final rule address assignments.
sections 2805.15 and 2885.13). Subparts
You, as the holder, must also indemnify 2805 and 2885 of this final rule address Trespass
or hold the United States harmless for grant monitoring.
third party liability, damages, or claims If you use, occupy, or develop the
it incurs. Sections 2807.12, 2807.13, Grant Suspension and Termination public lands or their resources without
2886.13, and 2886.14 of this final rule A right-of-way holder may use the a required authorization or in a way that
address liability issues. right-of-way for only those purposes is beyond the scope and terms and
permitted in the grant. BLM may conditions of your authorization, you
Amendments to Your Grant
suspend or terminate a right-of-way if are considered to be in trespass and you
If you want to substantially change, the holder does not comply with the may be penalized. Subparts 2808 and
improve, or add to a project once you applicable laws, regulations, terms, or 2888 of this final rule address trespass.
have a right-of-way grant, you must file conditions. BLM may require an
an application with BLM to amend your immediate temporary suspension of Comparison Between FLPMA and MLA
right-of-way grant. You must have activities within a right-of-way to Grants
BLM’s prior written approval before you protect the public health or safety or the
make any substantial change in location There are many similarities and
environment. Sections 2807.16 through
or use during construction, operation, or differences between FLPMA and MLA
2807.19 and sections 2886.16 through
maintenance of the right-of-way. You grants. The following chart describes
2886.19 of this final rule address
must contact the field office manager to suspensions and terminations. FLPMA and MLA right-of-way grants,
determine if your proposed changes but is not meant to be a complete
require you to file an amendment. Assignments description of all of the nuances,
Sections 2807.20 and 2887.10 of this With BLM approval, you may transfer similarities, and differences between
final rule cover grant amendments. your right-of-way grant to another FLPMA and MLA grants.

Part 2800 Regulations FLPMA Grants Part 2880 Regulations MLA Grants

Agency Jurisdiction .............. BLM issues grants on public lands only (43 U.S.C. BLM issues grants on all Federal lands if the lands are
1761(a)). administered by two or more Federal agencies. BLM
also issues grants on public lands (30 U.S.C. 185(c)).
Term ..................................... A reasonable term. This can range from a term of one A reasonable term not to exceed 30 years (30 U.S.C.
day to a term in perpetuity. (43 U.S.C. 1764(b)). 185(n)).
Rental ................................... Fair market rental value required from holders, but ex- Fair market rental value required from all holders (30
ceptions apply. (43 U.S.C. 1764(g)). U.S.C. 185(l)).
Cost Reimbursement ........... Collect reasonable costs of processing the application Collect actual costs of processing the application and
and monitoring except from certain government monitoring except from certain government agencies
agencies and cooperative cost share program partici- (43 CFR 2884.13).
pants (43 U.S.C. 1764(g)).
Renewal ............................... Renewable if it is provided for in the grant and satisfac- Renewable if the grant is still being used for commer-
tory operation and maintenance exists (43 U.S.C. cial operations and satisfactory operation and mainte-
1764(b)). nance exists (30 U.S.C. 185(n).
Citizenship ............................ Individual applicant not required to be U.S. citizen (43 Individual applicant required to be U.S. citizen (30
U.S.C. 1761(b)). U.S.C. 181, 185).
Width .................................... Variable, depending on purpose of the authorization (43 Maximum 50-foot permanent width, plus the ground oc-
U.S.C. 1764(a)). cupied by the pipeline; exceptions are possible (30
U.S.C. 185(d)).
Assignments ......................... Assignable with BLM’s approval (43 U.S.C. 1764(c) and Assignable with BLM’s approval (30 U.S.C. 185(r)).
(g)).
Temporary Use .................... Authorize temporary work areas as part of a right-of- Authorize temporary work areas with a Temporary Use
way grant or with a separate short-term right-of-way Permit (30 U.S.C. 185(e)).
grant (43 U.S.C. 1764(a)).
Common Carrier Provision .. Does not apply to FLPMA grants ................................... Applies to all pipeline grants (30 U.S.C. 185(r)).
Application form ................... BLM Standard Form 299 or APD or Sundry Notice for BLM Standard Form 299 or APD or Sundry Notice for
off-lease oil and gas access roads. all off-lease portions of oil and gas pipelines.

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II. Final Rule as Adopted and Response application, this final rule takes into under either FLPMA or the MLA, as
to Comment account increases in efficiencies. We some oil and gas lessees do hold
Part 2800—Rights-of-Way Under note, however, that the number of FLPMA rights-of-way to assist in
FLPMA processing hours may be increased by transporting product off-lease.
the increasingly complex resource Congress authorized BLM to recover
We received many comments on the issues BLM encounters when processing processing costs, and did so fully aware
proposed rule that addressed issues grant applications which add to the that BLM was already collecting
common to both the part 2800 and part amount of coordination required to bonuses, rents, and royalties. Congress
2880 regulations. So as not to be process applications. Increased public is presumed to understand the state of
redundant, we address the comments involvement in the National the existing law when it legislates.
only in the section they pertain to in the Environmental Policy Act (NEPA) Bowen v. Massachusetts, 487 U.S. 879,
part 2800 regulations. Comments that process adds extra levels of analysis and 896 (1988).
specifically address the part 2880 review. Comments relating to BLM In the MLA, Congress specified how
regulations are discussed in that section creating new fees are misdirected since mineral royalties and bonuses are
of the preamble. BLM is not proposing any new fees in distributed to states and to the Treasury
Subpart 2801—General Information this rule (see previous subparts 2808 (30 U.S.C. 191), and this distribution
and 2883 and previous sections 2803.1– does not return funds to BLM to cover
This subpart contains material that 2 and 2883.1–2). the costs of processing right-of-way
pertains to all of part 2800 and several We suggest that commenters who applications. However, as discussed in
sections of part 2880. Part 2800 contains requested reports justifying the fee the preamble to the proposed rule at 64
policies and procedures related to right- increases refer to the preamble FR 32107, section 504(g) of FLPMA and
of-way grants BLM issues under the discussion in the proposed rule (64 FR section 28(l) of the MLA authorize BLM
Federal Land Policy and Management 32107 and 32108). A 1995 audit of also to collect the costs to process right-
Act and part 2880 to right-of-way grants BLM’s cost recovery efforts by the Office of-way applications. Section 504(g) of
and temporary use permits BLM issues of Inspector General (OIG) for the FLPMA further provides that the
under the Mineral Leasing Act. More Department of the Interior found BLM deposit of reimbursements for
specifically, subpart 2801 contains: was not recovering all the costs of reasonable costs be placed into a
(A) An explanation of the objective of processing applications and Treasury account to be appropriated to
BLM’s right-of-way program; recommended that BLM revise its BLM for processing applications.
(B) Acronyms and definitions used in regulations to recover all applicable Also, BLM charges processing fees to
the regulations; and costs. The audit estimated that BLM everyone who files an application,
(C) Information about which grants incurred about $640,000 in additional except those specifically exempted by
the regulations affect and which they do expense in excess of the fees collected law or regulation, pursuant to its
not. in 1993. (This shortfall comes to $213 authorities under the Independent
per application, or $800,000 and $336 Offices Appropriations Act, as
General Comments
respectively when adjusted for the amended, 31 U.S.C. 9701 (IOAA);
Several commenters said that there is change in IPD–GDP.) BLM is following section 304(a) of FLPMA; Office of
no up-to-date data to support the need the OIG’s suggestions by increasing the Management and Budget Circular A–25;
for increases in existing right-of-way costs for processing and monitoring the Department of the Interior Manual
fees or the creation of new ones, and right-of-way applications and providing 346 DM 1.2 A; and case law (also see the
that BLM should prepare a baseline for future adjustments to the costs based preamble to the proposed rule at 64 FR
report and annual reports thereafter to on economic indicators to reflect the 32107 and Solicitor’s Opinion M–36987
document the needed increases. They costs of inflation. BLM also prepares (December 5, 1996)). Congress clearly
also said that there have been significant yearly reports, some to meet intended for agencies to recover
technology increases, as well as staff requirements imposed by Congress in processing costs in addition to bonuses,
reorganizations, that have improved the Mineral Leasing Act, that discuss rents, and royalties.
efficiencies that should reduce costs. the relative numbers and types of cases The IOAA states that Federal agencies
For a discussion of the justification for that we process each year. BLM should be ‘‘self-sustaining to the extent
increasing cost recovery fees, please see publishes this data annually in a possible,’’ and authorizes agency heads
the proposed rule at 64 FR 32107 statistical report that you can find on to ‘‘prescribe regulations establishing
through 32111. the Internet at http://www.blm.gov/nhp/ the charge for a service or thing of value
In 1995, BLM program experts browse.htm#annual_reports. While provided by the agency.’’ Section 304(a)
analyzed a cross section of right-of-way these reports alone do not justify of FLPMA specifically authorizes the
cases. This analysis showed that the increasing cost recovery fees, they show Secretary of the Interior to ‘‘establish
cost of processing right-of-way cases, that the number of right-of-way reasonable filing and service fees and
including labor costs, had increased authorizations BLM grants and reasonable charges and commissions
since 1986 at approximately the same administers continues to increase. As with respect to applications and other
rate as the Implicit Price Deflator-Gross such, the monetary losses projected by documents relating to the public lands.’’
Domestic Product (IPD–GDP). Therefore, the OIG in 1995 continue to increase IOAA and FLPMA give BLM authority
the final rule adjusts costs upward each year. We did not amend the final to charge fees for processing
based on the IPD–GDP and allows for rule as a result of these comments. applications, which we interpret to
automatic adjustments based on this Several commenters from the oil and include amendments and assignments.
indicator. Technological improvements gas industry suggested that BLM should OMB Circular A–25 sets forth a
and staff reorganizations that have taken not increase processing fees because the general policy that a user charge will be
place recently may have yielded bonuses, rents, and royalties industry assessed against each identifiable
improved right-of-way processes in already pays to the government should recipient for special benefits derived
many BLM offices. Since the processing cover BLM’s right-of-way processing from Federal activities beyond those
categories in this final rule are based on costs. We address this comment here received by the general public.
the time (hours) required to process an because it could apply to grants issued Departmental Manual 346 DM 1.2A

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requires (unless otherwise prohibited) Regulations as BLM’s oil and gas keep pace with inflation. This provision
that a charge, which recovers the regulations. remains in the final rule.
bureau’s costs, be imposed for services One commenter suggested that BLM Some commenters thought that the
which provide special benefits or should consider the benefits the public IPD–GDP was not the appropriate
privileges above and beyond those receives from industry upgrading access indicator for automatic increases in fees.
which accrue to the public at large. roads and performing special studies They thought that the Consumer Price
A particularly relevant court ruling is that benefit the public. Previous Index would be a better economic
Mississippi Power & Light Co. v. United regulations allowed BLM to reduce cost indicator to use since, due to
States Nuclear Regulatory Commission, recovery fees to reflect both public streamlining, labor costs have decreased
601 F.2d 223 (5th Cir. 1979), cert. benefits from studies connected with since 1987. We disagree. As we stated
denied, 444 U.S. 102 (1980). The court processing an application and special in the proposed rule’s preamble (see 64
upheld a Nuclear Regulatory services to the public or a program of FR 32109), we believe that the IPD–GDP
Commission (NRC) licensing fee the Secretary provided by a project (see is the correct economic indicator on
schedule. The court rejected the previous sections 2808.5(b)(5) and (6). which to base these fee adjustments
petitioners’ argument that the work of Like previous regulations, the final rule since the IPD–GDP more closely reflects
the NRC benefitted the general public contains provisions for FLPMA right-of- the relationship of labor to other costs
solely and that the conferral of a license way applicants to pay cost recovery fees than do other economic indicators and
or permit does not bestow upon the that reflect the public service or public most of BLM’s processing and
petitioners any special benefit benefit derived from a right-of-way grant monitoring costs are related to labor
whatsoever. The court concluded: ‘‘A or its processing (see final sections costs.
license from the NRC is an absolute 2804.20 and 2804.21). One commenter stated that BLM was
prerequisite to operating a nuclear attempting to recover costs in excess of
Several commenters said that the
facility, and as such, is a benefit ‘not the shortfalls in cost recovery identified
proposed automatic fee adjustments
shared by other members of society.’ ’’ by the OIG in 1995, and that the new
appear to be a disincentive for future
fees would be indexed annually to
Likewise, a right-of-way grant is a BLM process improvements. We
guarantee additional income. Further,
benefit not shared by other members of disagree with the commenters. The
commenters said that BLM was only
society. Therefore, BLM charges automatic fee adjustment provisions in
allowed to recover reasonable or actual
applicants for processing their this final rule will not act as a
costs. We agree that BLM can only
applications for grants because they are disincentive to continuing our process
charge reasonable or actual costs for
seeking a benefit not shared by other improvement efforts. Even after this rule
processing right-of-way applications.
members of society. becomes final, BLM will continue to Final section 2804.14 of the FLPMA
The commenters’ contention that examine ways to improve processes. regulations requires that you pay the
BLM should not charge right-of-way The automatic fee adjustments are United States the reasonable costs of
processing fees to the oil and gas intended to increase fees based on an processing your application, and final
industry because the industry already economic indicator that reflects yearly section 2884.12 of the MLA regulations
pays bonuses, rentals, and royalties increases in the cost of doing business. requires that you pay the United States
misses the point about processing fees. We have included automatic fee the actual costs of processing your
Congress intends for agencies to be adjustments because the cost to BLM of application.
reimbursed for processing costs when going through rulemaking each time fees We believe the commenter who stated
the agency action benefits an needed to be adjusted would be that BLM was attempting to recover
identifiable party. BLM’s processing of prohibitive and inefficient. If during more that its shortfall misunderstood
right-of-way applications benefits the periodic review of the fee structure we the explanation in the proposed rule. In
applicant, who will use the right-of-way determine that the fees or fee structure 1995, the OIG sampled 75 of the
to aid its operation. Bonuses, rentals, need to be revised, apart from applying approximately 3,000 right-of-way cases
and royalties are related to the use of the the IPD–GDP, we will propose new BLM processed in fiscal year 1993 and
resource and are unrelated to agency rulemaking. determined that there was a shortfall in
processing costs. Congress has provided Some commenters said that the fee collected processing fees of $16,000 for
for agencies to collect both for the use increases were not legal since they were those 75 cases. The total estimated
of the resource and for the processing of really special use taxes that must be shortfall for the 3,000 cases processed
applications and other documents. ‘‘approved by Congress and signed by was thus at least $640,000 for that one
Some of these commenters further the President.’’ BLM does not agree with year. The proposed rule stated that the
suggested that any regulations the commenter. Clearly, both FLPMA maximum fees that possibly could be
pertaining to rights-of-way should be and MLA give BLM authority to collect generated by the proposed regulations
combined with existing oil and gas the reasonable or actual costs of over and above fees already being
regulations, onshore orders, and notices processing right-of-way applications collected, was approximately $2.7
to lessees and that a separate (see 43 U.S.C. 1764(g) and 30 U.S.C. million annually (see 64 FR 32123). We
rulemaking is duplicative. We have 185(l)). Neither statute imposes a calculated that figure to show that even
decided not to combine this rule with limitation on fee increases. Moreover, under the most extreme circumstances
other oil and gas rules. We believe that the Supreme Court has made clear that this rule would not be considered
since both the FLPMA and MLA right- agencies may charge for special benefits economically ‘‘significant’’ under
of-way programs are administered under to identifiable recipients, which is what Executive Order 12866 (which defines
BLM’s lands and realty program and BLM is doing in this rule. See National ‘‘significant’’ as having an annual
because of the many similarities Cable Television Association v. U.S., economic impact of $100 million or
between the various lands and realty 415 U.S. 336, 341 (1973), and Federal more). The $2.7 million figure does not
regulations, both as a matter of policy Power Commission v. New England represent anticipated revenue, but
and a matter of process, BLM’s right-of- Power, 415 U.S. 345, 349 (1973). indicates the outside limit of the
way regulations should not be located in One commenter agreed with the economic impact of the proposed rule,
the same part in 43 Code of Federal proposal to automatically adjust fees to over and above the fees already being

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collected, if every right-of-way R.S. 2477 as a special use, because they are tied
application, including those that were Many commenters were concerned to a longer term use. We agree with the
exempted or reduced under previous that the regulations would impact rights commenter. Under this final rule, we
regulations, were placed at the highest associated with R.S. 2477 roads. One will issue right-of-way grants under
fee category available. Therefore, the commenter said that before the rule can FLPMA with an appropriate term and
difference between $640,000 and $2.7 be finalized, a Federal court must stipulations for all authorized uses
million does not represent costs in decide which roads are available for associated with a right-of-way,
excess of what BLM needs to process rights-of-way as some may be owned by including short term construction and
grant applications. BLM anticipates that access needs.
the county under R.S. 2477. Similarly,
this rule will, on an annual basis,
another commenter said that BLM needs Section 2801.2 What Is the Objective
generate additional revenue from
to make sure we own the road before of BLM’s Right-of-Way Program?
processing fees approximately
issuing a right-of-way grant. These final
equivalent to the $640,000 shortfall This section is new to the final rule
regulations do not change the current
identified by the OIG, corrected for and explains it is BLM’s objective to
policy of the Department of the Interior
inflation by application of the IPD–GDP. grant rights-of-way to qualified
One commenter said that BLM and for handling R.S. 2477 issues and apply
only to public lands (Part 2800) and individuals and business or government
the U.S. Forest Service (FS) should entities, and to direct and control the
adopt the same rules, procedures, and Federal lands (Part 2880). Final section
2801.6 makes clear that these use of rights-of-way on public lands in
regulations to reduce application costs a manner that:
and review times. We agree. BLM and regulations do not apply to valid claims
under R.S. 2477. (A) Protects the natural resources;
the FS are working together on parallel (B) Prevents unnecessary or undue
regulations to establish procedures that Temporary Use Permits degradation to public lands;
are consistent to the extent possible for (C) Promotes the use of rights-of-way
the collection of right-of-way processing Several commenters supported the
continued use of temporary use permits in common; and
and monitoring fees (see 64 FR 66341
(TUPs). Some commenters from the oil (D) Coordinates, to the fullest extent
for the FS proposed rule).
and gas industry said that we should not possible, all BLM actions under the
A few commenters said that the
difference between FLPMA and MLA eliminate TUPs for FLPMA rights-of- regulations with state and local
rights-of-way should be pointed out in way since the industry needs them for governments, interested individuals,
the final rule since it is confusing to the testing and emergency situations. Other and appropriate quasi-public entities.
public and BLM. The basic processing commenters said that BLM only needs We inadvertently left the objectives
steps, fee determination process, and to be able to authorize the additional section out of the proposed rule, but this
conditions for approval involved in both use of public land outside a permanent final section is consistent with previous
types of applications are nearly right-of-way, no matter what you call section 2800.0–2. We added a similar
identical. However, there are some the authorization. We agree with the provision to the part 2880 regulations
differences between the two types of basic point of the last comment and discussed later in this preamble.
applications and the two parts of the have so provided in this rule. Moreover, Section 2801.5 What Acronyms and
rule, most of which result from BLM believes there is little difference Terms Are Used in These Regulations?
distinctions in the statutory authority between approving the use of public
for the two types of grants. The major land using short term right-of-way This section contains the acronyms
differences between the part 2800 and grants and approving the use of Federal and defines the terms that are used in
part 2880 regulations are explained in land with TUPs. Both authorizations these regulations. Paragraph (a) is new
the table and general discussion above. require: to the final rule and contains acronyms
A few commenters said that instead of (A) The same application procedure; that are frequently used in the final rule.
the cost recovery fee in the proposed (B) Compliance with NEPA and land We also amended the definitions section
rule, BLM should use a ‘‘minimal use plans; in the final rule by adding several terms,
impact flat fee’’ similar to that proposed (C) Preparation of a decision; and by deleting unnecessary terms, and by
by the FS for flowlines, roads and (D) Execution of an authorizing amending the definitions of the terms
electric lines being installed in a document. we proposed.
developing field. The FS proposed a BLM can authorize all associated uses Two terms not defined in the
‘‘minimum impact category’’ in their with a FLPMA grant, whether they are proposed or final regulations are
rule that would cover one-time short or long term, and therefore TUPs ‘‘suspension’’ and ‘‘termination.’’ We
authorizations for the use of forest are not needed. This is consistent with discuss those terms here because the
system lands for events such as the proposed rule (see 64 FR 32118). public and BLM staff often
recreation events, weddings, or bike One commenter said that BLM should inappropriately use the terms
races or uses where more than 75 people authorize in a right-of-way grant access interchangeably. The two terms have
participate (see 64 FR 66341, 66344, and roads, temporary landing sites, and lay very different meanings. Suspensions
66350). The BLM requested comments down areas rather than in a special use involve immediately curtailing activities
on the need for such a category. Both permit since these activities are an and privileges authorized under a grant
agencies decided not to establish a integral part of the construction for a specified period of time.
‘‘minimal impact category’’ in their final operations. We agree and the final rule Suspensions may be ordered to protect
rules. Instead, in this final rule BLM is consistent with this comment. The public health, safety, or the
establishes a new processing and same commenter said that short-term environment. Terminations, on the
monitoring category for all ROW actions incidental activities, such as those short other hand, involve ending the term of
where we spend more than one hour but term construction activities that would a grant because the grant has expired or
less than eight hours processing the temporarily require additional width for is required by law to terminate, the
application or monitoring the grant. The a right-of-way, or a temporary access holder requests and BLM consents to
FS also plans to issue a similar final road should be permitted for a term and the termination, or the holder has not
rule. with stipulations, as a right-of-way, not complied with laws, regulations, or any

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terms and conditions of the grant, more accurate and useful description commenter said that the definition
including abandonment. because it recognizes that casual use contravened section 6002(b) of the
Many comments related to redefining may cause no disturbance and because Omnibus Budget Reconciliation Act of
terms used in the proposed rule or it gives examples that are more useful 1993, which mandated that similar
adding new terms to make the rule than that provided in the proposed rule. mobile services be subject to consistent
easier to understand. In the final rule we moved the regulatory definition and urged BLM to
In the final rule we added a definition definition of ‘‘commercial purpose or adopt FCC definitions in its final rule.
of ‘‘actual costs’’ to mean the financial activity’’ from proposed section 2806.5 We disagree with the commenters. BLM
measure of resources BLM expends in to this section and modified it to make and the FCC have different definitions
processing and monitoring right-of-way it easier to understand. In the final rule, for the terms because we use the terms
grants including direct and indirect we use the term to describe the situation for different purposes. The FCC issues
costs, exclusive of management where a holder attempts to produce a licenses for different classifications of
overhead. We added this definition profit by allowing the use of its facilities primary uses. BLM defines different
because ‘‘actual costs’’ is one of the by an additional user. Under these types of communication uses for rental
criteria spelled out in FLPMA that BLM circumstances BLM may assess an calculation purposes only.
uses to assess whether costs are appropriate rent for such commercial In the final rule we moved all
reasonable. The term is defined activities. The holder’s use may not communication site related definitions
similarly to previous section 2800.0– otherwise be subject to rent charges from proposed section 2806.5 to this
5(o). under BLM’s rental provisions. section. For example, we moved the
One commenter asked that the final In the final rule we moved the definition of ‘‘customer’’ from proposed
regulation define ‘‘administrative costs definition of ‘‘communication use rent section 2806.5 to this section. We also
of processing,’’ as the phrase was vague schedule’’ from proposed section 2806.5 modified the definition to make it clear
and subject to interpretation. In the final to this section and modified it to make that:
rule we do not use the phrase it easier to determine where a use will
(A) BLM includes private or internal
‘‘administrative cost of processing’’ and fit into the schedule. The final rule also communication uses located in a holder’s
therefore there is no need to define the clearly states that the type of use facility as customer uses; and
term. identified on an FCC license does not (B) Customer uses are not included in the
The Forest Service recommended supersede either the definition found in amount of rent owed by a facility owner,
revising the definition of ‘‘base rent’’ to this subpart or the procedures for facility manager, or tenant unless the facility
read, in part, as follows: calculating rent in subpart 2806. The owner or facility manager is operating the
definitions in this rule are different from facility for a commercial purpose. This more
Base rent means the initial dollar amount accurately describes how we charge for
required of a facility owner or a facility those in FCC’s rules because our reason
customer uses than the proposal and is
manager based on the highest value use in for defining them is so we can consistent with existing policy and practice.
their facility, as determined by the determine the correct rent for the use of
communications rent schedule and the a right-of-way, whereas the FCC Several commenters thought the
population of the community served. If the regulations define them for entirely definition of ‘‘designated right-of-way
facility manager rental rate or the facility different reasons, such as licensing corridor’’ should be deleted because it is
owner’s type of use rental rate is equal to or requirements. Therefore, our definitions not compatible with oil and gas field
greater than other assigned rental rates in that operational practices. We address this
continue to focus on determining the
facility, then * * *. comment here because right-of-way
type of use. However, there may be
In the final rule we moved the circumstances where BLM cannot corridors, even those for oil and gas
definition of ‘‘base rent’’ from proposed accurately determine the type of operations, are designated under
section 2806.5 to this section. We also communication use and therefore FLPMA. The commenters said that the
modified the final definition to make it cannot determine the proper category in spider web of flowlines, gathering lines
easier to understand that when a the rent schedule for the use. Should and roads on specific leases cannot be
communication site facility manager’s this occur, BLM may consult with the predicted and would not be conducive
or facility owner’s scheduled rent is FCC to help us determine the use, based to corridors. We retained the definition
equal to the rent for the highest use from on our definitions, and therefore in the final rule because of the
the communication use rent schedule, determine where the use would fit into advantages to locating major utility
the facility manager or facility owner’s the communication use rent schedule. rights-of-way in corridors on public
use determines the base rent. When the Several commenters said BLM should land and because section 503 of FLPMA
value of any other use in the change its definition of ‘‘commercial requires that we use rights-of-way in
communication site facility exceeds that mobile radio service’’ (CMRS) common to the extent practical. Further,
of the facility manager or facility (contained in ‘‘communication use rent the final rule does not require that
owner’s use, that other use determines schedule) because it differs significantly rights-of-way for all oil and gas field
the base rent. Although we did not copy from the regulatory classifications operations be located in a designated
the FS proposed language exactly, we established by Congress and the FCC. right-of-way corridor. Designation of a
followed the suggested meaning of the They said BLM’s definition of CMRS right-of-way corridor is a land use
FS comment in the final definition. did not identify cellular, personal planning decision that BLM makes only
In the final rule we amended the communication service, or enhanced after fully considering the impacts on
definition of ‘‘casual use’’ to mean specialized mobile radio services as other existing and planned land uses,
‘‘activities ordinarily resulting in no or specific types of commercial mobile including oil and gas development.
negligible disturbance of the public radio services, but instead focused on We made minor wording changes to
lands, resources, or improvements.’’ We communication services to individual the definition of ‘‘facility’’ in the final
also replaced the example proposed customers and ancillary communication rule to make it easier to understand. The
with ‘‘Surveying, marking routes, and equipment for operating, maintaining, definition makes it clear that ‘‘facility’’
collecting data to use to prepare grant or monitoring use. One of the includes the improvements or structures
applications.’’ We believe the final commenters suggested that we use the on a right-of-way owned or controlled
rule’s definition of ‘‘casual use’’ is a FCC’s definition of CMRS. Another by the grant or lease holder.

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In the final rule we moved the We received many comments related applicable Federal, state, tribal, or local
definition of ‘‘facility manager’’ from to the definition of ‘‘hazardous law.
proposed section 2806.5 to this section. material.’’ Many commenters said that We defined ‘‘hazardous material’’ by
The final definition makes clear that a the Environmental Protection Agency cross-referencing other laws to ensure
communication site facility manager (EPA) has an established definition of that all pollutants, contaminants, and
does not own or operate its own ‘‘hazardous substance’’ and that EPA hazardous substances, including oil and
equipment, but leases space to tenants regulates hazardous substances and petroleum products, fall within the
and customers in a communication BLM therefore need not. Some definition. Although some commenters
facility. We also moved the ‘‘facility commenters said the definition was stated that BLM should specify
owner’’ definition from proposed overly broad, inconsistent with other hazardous substances of concern, and
section 2806.5 to this section and regulatory authorities and should be should not incorporate into its rule
reworded it to be clear that a ‘‘facility deleted. Several commenters said that definitions taken from other laws, such
owner’’ owns and operates its own the definitions ‘‘hazardous material,’’ an approach would be impracticable in
communication equipment in a facility ‘‘discharge,’’ and ‘‘release’’ should all be light of the large number and types of
and may or may not lease space to other deleted from the rule and that the rule hazardous substances that can cause
users in the communication facility. is expanding BLM’s jurisdiction beyond harm to health, property, or the
Both definitions are consistent with what is required by law. Some environment. In addition, numerous
current policy and practice. commenters said the rule changes laws, including CERCLA, define
Several commenters said that the statutory requirements and regulations ‘‘hazardous substance’’ by incorporating
definition of ‘‘field examination’’ should on hazardous materials. The definitions found in other laws. (See
make it clear that the BLM staff person commenters said the rule should not section 101(14) of CERCLA, 42 U.S.C.
making a field trip should look at as weaken or dilute the Resource 9601(14), and section 1001(23) of the
many rights-of-way and Applications for Conservation and Recovery Act (RCRA) Oil Pollution Act, 33 U.S.C. 2701(23).)
Permits to Drill as possible in one trip or the Comprehensive Environmental Because numerous jurisdictions have
to make the trip as efficient as possible. Response, Compensation, and Liability adopted definitions of hazardous
We agree. Combining several field Act (CERCLA) or eliminate the substances that, in many respects, differ
examinations or other inspections into exemptions provided the oil and gas from those in CERCLA, RCRA, the Oil
one field trip is BLM’s routine practice. industry in those statutes. We have not Pollution Act, and the Clean Water Act,
However, we deleted the proposed changed these definitions as a result of BLM included within its definition a
definition of ‘‘field examination’’ from these comments. The final rule includes catch-all for substances defined as
the final rule because we no longer use these definitions to make clear the hazardous under Federal, state, tribal, or
the term and it is not part of the criteria regulations addressing use and local law. Rather than cause confusion
for determining a cost recovery category management of hazardous materials on and inconsistency, as claimed by some
in this final rule. For further Federal and public lands. As noted in commenters, BLM believes the
information, please see the preamble the proposed rule’s preamble (see 64 FR definition fosters consistency in the
discussion of final section 2804.14. 32118), right-of-way holders use, store, meaning and application of key terms
Several commenters asked what and transport various hazardous and provides clear guidance to users of
‘‘reasonable costs’’ are and said that materials on and across public lands. their obligations and liability under
BLM should be responsible for paying BLM seeks to ensure that those using these regulations.
for NEPA and other studies since it is BLM lands are responsible for damage BLM disagrees that, by incorporating
our responsibility under the law. We to health, property, and the definitions of environmental terms
use the phrase ‘‘reasonable costs’’ in environment incurred while using and taken from other laws, we are
sections 2804.14, 2804.20, and 2805.16. occupying a right-of-way and that they attempting to expand our authority into
The final rule defines this phrase in understand which materials we areas administered by EPA and state
section 2801.5, and final section consider to be hazardous. regulatory authorities under
2804.20 lists the factors from FLPMA The terms ‘‘discharge’’ and ‘‘release’’ environmental laws. BLM is not seeking
that BLM will use in its determination take their meanings from the Clean to supplant EPA and state authorities to
of the reasonable costs for Processing Water Act (33 U.S.C. 1321(a)(2)) and regulate environmental laws on Federal
Category 6 or Monitoring Category 6. CERCLA (42 U.S.C. 9601(22)), and public lands. To the extent that EPA
We reworded the definition of ‘‘grant’’ respectively. The terms broadly address and the state have such authority,
to state that a grant is any authorization the range of circumstances under which, nothing in this rule affects it. These
or instrument (e.g., easements, leases, during the use of a right-of-way, a definitions apply only to BLM’s right-of-
licenses, or permits) issued under Title chemical substance may enter the way regulations, which seek to ensure
V of FLPMA, and that ‘‘grant’’ includes environment. that if someone using and occupying a
those authorizations and instruments The term ‘‘hazardous material’’ is also right-of-way issued under these
BLM and its predecessors issued for like intentionally broad and includes, among regulations causes harm to health,
purposes prior to the passage of FLPMA others: property, or the environment, the cost of
under now expired authorities. (A) Hazardous substances as defined remedying such harm falls on the grant
Therefore, the term ‘‘grant’’ includes by CERCLA (see 42 U.S.C. 9601(14); holder, rather than on the public.
communications use leases. We use the (B) Regulated substances managed in Several commenters stated that BLM
term ‘‘lease’’ for communication site tanks as defined by the Resource should delete the term ‘‘hazardous
purposes because of the nature of the Conservation and Recovery Act (RCRA) material’’ and replace it with
rights we authorize to the holder of the (see 42 U.S.C. 6991 et seq.); ‘‘hazardous substance’’ as defined in
authorization. Communication use (C) Oil, as defined by the Oil CERCLA, because using the term
leases allow holders to sublease space to Pollution Act (see 33 U.S.C. 2701(23)), ‘‘hazardous material’’ could weaken or
tenants and customers without first and the Clean Water Act (see 33 U.S.C. dilute the exemption granted to the oil
obtaining BLM approval. A typical BLM 1321(a)); and and gas industry in CERCLA and RCRA.
right-of-way grant does not allow (D) Other substances defined and The commenters misunderstand the
holders to sublease. regulated as ‘‘hazardous’’ under purpose of the rule. Nothing in the rule

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affects the exclusion of petroleum from of a grant are part of day-to-day utility rights-of-way it is common
the definition of ‘‘hazardous substance’’ monitoring or part of the cost of practice for the grant to include terms
under section 101(14) of CERCLA (42 processing a renewal. In the final rule that allow the holder to construct,
U.S.C. 9601(14)). BLM is not seeking we added a definition of monitoring, modify, and maintain the facilities. The
through this rule to enforce CERCLA on which includes those actions BLM commenter said that if Federal agencies
Federal or public lands or to regulate performs to ensure compliance with the want to do something that is beyond the
users’ management of waste under terms, conditions, and stipulations of scope of the grant, they should contact
RCRA. Rather, BLM is issuing these the grant. BLM. In the proposed rule BLM
regulations to ensure that, as a manager Monitoring occurs primarily during provided an explanation of ‘‘substantial
of public lands, it places the risk of the construction and rehabilitation deviation’’ that was not spelled out in
harm on the grant holder and not on the phases of a project. During grant previous regulations (see proposed
public. In this context, the definitions application processing, BLM will section 2807.11). We moved the
are used in these regulations only as a estimate the hours we will need to description of substantial deviation
way to identify which materials we monitor the construction and from proposed section 2807.11 to final
consider to be hazardous and which, rehabilitation of a Monitoring Category section 2801.5. BLM agrees with the
therefore, may impact Federal or public 1 through 4 application, and we will commenter that when an activity is
lands. collect the applicable fees when the beyond the scope of what is authorized
One commenter said that the final applicant accepts the terms, conditions, in a grant, the holder should contact
rule should define ‘‘holder’’ as it is and stipulations of a grant. For a BLM before engaging in the activity. We
defined in the law, to exclude Federal Category 1 through 4 application, reworded the definition of ‘‘substantial
agencies. The commenter is correct that compliance inspections for a renewal deviation’’ to make clear that the
FLPMA does not include Federal are part of the cost of processing the notification requirement of proposed
agencies in its definition of holders. renewal. Monitoring Category 1 through section 2807.11(b) applies only in
However, section 507 of FLPMA clearly 4 fees are one-time fees. Monitoring for circumstances where the use is outside
provides for rights-of-way for the use of Category 5 Master Agreements and the scope of an existing grant or outside
any department or agency of the United Category 6 projects are in accordance the boundaries of an existing authorized
States. Title V of FLPMA also applies to with the terms of the agreement and right-of-way. The requirement does not
any Federal agency that would apply to may include monitoring during the life apply to uses that are in an existing
construct an oil or gas pipeline on of the grant through the termination grant. BLM considers adding facilities
public lands. Therefore, we believe it phase of the project. that are not specifically authorized in
necessary to include Federal agencies in In the final rule we deleted the the original grant to be a substantial
the definition of holders. definition of ‘‘project’’ because there is deviation that requires supplemental
In the final rule we added a definition a common understanding of the term as authorization in the form of a grant
of ‘‘management overhead costs’’ to it is used in this rule. amendment.
mean the costs associated with the BLM We also replaced the proposed rule’s Several commenters said that as it
directorate, including all BLM State definition of ‘‘public land’’ with a pertains to the definition of ‘‘temporary
Directors and the entire Washington definition more closely following use permit,’’ public safety is an ‘‘OSHA
Office staff, except where a State section 103(e) of FLPMA. function,’’ not a BLM function. They
Director or Washington Office staff In the proposed rule we omitted the also said that there should be a
member is required to perform work on definition of ‘‘reasonable costs.’’ In the definition of ‘‘natural environment’’ in
a specific right-of-way case. We added final rule we added the definition of the the final rule and that under a
the definition because we use the phrase term, citing the definition in section temporary use permit, there may not be
in the definition of actual costs and in 304(b) of FLPMA, which is consistent any ‘‘natural environment’’ to protect.
final section 2804.20. with existing policy and practice. In the final rule we deleted the
In the final rule we also added a In the final rule we moved the definition of ‘‘temporary use’’ from part
definition of ‘‘monetary value of the definition of ‘‘site’’ from proposed 2800. Under the final rule, for any use
rights and privileges you seek’’ to mean section 2806.5 to this section. or activity requiring a FLPMA grant for
the objective value of what the right-of- One commenter supported using the a short duration, BLM will issue a short
way grant is worth in financial terms to term ‘‘site,’’ but recommended a broader term right-of-way grant instead of a
the applicant. We added this definition definition that would include a temporary use permit. When an
because ‘‘monetary value’’ is one of the geographic area that can accommodate applicant identifies a short term use
criteria spelled out in FLPMA that BLM multiple communication facilities under during application processing, such as
uses to assess whether costs are the control of one or more facility the need for additional work space
reasonable and we use the term in final managers supporting a combination of outside the right-of-way boundary, BLM
section 2804.20. The meaning of the recognized communications uses. BLM will approve that use, as appropriate,
term is the same as the definition in did not change the definition in within the right-of-way grant. When the
previous section 2800.0–5(p). response to this comment because we short term use is identified after a right-
Several commenters said the final rule believe the commenter’s suggestion is of-way grant for a project has been
should define ‘‘monitoring’’ in terms of actually more restrictive than the executed, BLM will approve the
requirements and time frames and that proposed definition. A site is not additional short term use, as
monitoring should not be considered an limited to communication facilities and appropriate, in a separate short term
annual or recurring cost. Another may contain several other types of right- grant or an amendment to the grant.
commenter asked if the determination of of-way facilities and uses besides There is no specified term or duration
compliance was part of the communications facilities. for a short term grant and BLM will
‘‘administrative costs of (renewal) One commenter said that the determine the term on a case by case
compliance,’’ or part of day-to-day definition of ‘‘substantial deviation’’ basis.
monitoring activities. The second absorbs rights that a Federal agency may Under the final rule for part 2880, we
comment appears to be asking if already have in an existing grant. As an will continue to issue TUPs for uses
compliance inspections prior to renewal example, the commenter said that in associated with MLA right-of-way

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grants. We disagree with commenters’ should not include ‘‘non-willful’’ acts. also amended this section by adding
suggestion that the definition of TUPs Other commenters said that new paragraphs (b)(5), (6), and (7).
should not address public safety. The ‘‘degradation’’ can mean almost We added new paragraph (b)(5) to
MLA specifically states that BLM may anything and does not provide guidance alleviate the concerns of some
issue TUPS to ‘‘protect the natural to industry on what to avoid. The term commenters that this rule would have a
environment or public safety’’ (see 30 ‘‘unnecessary or undue degradation’’ is negative effect on rights under R.S.
U.S.C. 185(e)). We also disagree with the statutory in origin and for that reason 2477.
commenters that said under a TUP there we decline to change ‘‘degradation’’ to We added new paragraph (b)(6) to
may not be any natural environment to ‘‘damage.’’ The term appears in section clarify that the right-of-way regulations
protect. The ‘‘natural environment’’ is 302(b) of FLPMA (43 U.S.C. 1732(b) do not apply to existing rights for
the land for which BLM issues the which states that ‘‘In managing the private reservoirs, ditches, and canals
original grant and any attendant TUP, public lands the Secretary shall, by established prior to FLPMA under the
which holders must protect. regulation or otherwise, take any action Mining Act of July 26, 1866. We think
In the final rule we moved the necessary to prevent unnecessary or this clarification will be helpful in
definition of ‘‘tenant’’ from proposed undue degradation of the lands.’’ eliminating any confusion associated
section 2806.5 to this section. The final In our 1999 proposed rule, we defined with the previous regulatory language
rule’s definition is similar, but more the term ‘‘unnecessary and undue found in former section 2801.4.
specific, than the previous rule’s In the 1866 Act, Congress granted
degradation’’ to mean ‘‘surface
definition (see previous section 2800.0– Federal protection for vested state law-
disturbance that is greater than that
5(bb)), and is also consistent with the based water rights and rights-of-way for
which would occur when the same or a
proposed rule. ditches, canals and other structures
similar activity is being done by a
We use the term ‘‘third party’’ in the necessary for the use of water. Under
prudent person in a usual, customary,
proposed and final rules. We did not the Act, a private party could acquire a
and proficient manner that considers
define it in the proposal, but do define right-of-way across Federal lands
the effects of the activity on other
it in the final rule to make clear that without any action by the government—
resources and land uses outside the area
BLM considers a third party to be any no application or filing with the
of the activity. The disturbance may be government was necessary, and no
party aside from the applicant, holder,
either willful or nonwillful.’’ We have governmental approval was required.
or BLM.
In the final rule we added a definition decided to delete this proposed The right-of-way vested once a ditch or
of ‘‘tramway’’ to eliminate confusion definition (and the existing definition at canal was constructed and a water right
over the meaning of the term. One of the 43 CFR 2800.0–5(x)) because we find it acquired. Once the right-of-way was
right-of-way uses FLPMA specifically to be unnecessary. Issuing a right-of-way created, it existed in perpetuity and
mentions is tramways (see 43 U.S.C. grant is a highly discretionary act on included the right to operate and
1761(a)(6)). BLM administers a large BLM’s part. In final section 2804.26(a), maintain the ditch, canal or conduit
amount of timber property in western BLM has established standards for within the right-of-way. See, e.g., Utah
Oregon and on other public lands where exercising this discretion. For instance, Power & Light v. United States, 243 U.S.
the term is commonly used to describe as final section 2804.26 makes clear, an 389, 405 (1917); Gorrie v. Weiser Irr.
systems for transporting and hauling application may be denied if the Dist., 153 P. 561, 562 (Id. 1915); Perry
timber from the forest. Previous proposed use is not in the public v. Reynolds, 122 P.2d 508, 511 (Id.
regulations did not define the term and interest or is inconsistent with the 1942); United States v. Big Horn Land
there has been ongoing confusion over purpose for which we manage the & Cattle Co., 17 F.2d 357, 366 (8th Cir.
what type of transportation system public lands. 1927).
qualifies as a tramway. Therefore, in the ‘‘Unnecessary or undue degradation’’ Other statutes enacted after the 1866
final rule we added a definition of sets a standard far less stringent that Act also allowed private parties to
tramway that is consistent with those in section 2804.26. The Secretary, acquire rights-of-way across Federal
common usage of the word and existing through BLM, will continue to observe lands. Unlike 1866 Act rights-of-way,
policy. the ‘‘unnecessary or undue degradation’’ however, these other statutes required
One commenter said that we should standard in addressing a right-of-way government action before rights-of-way
add a definition of ‘‘trespass’’ to the application and in assessing and vested. For example, the Act of March
final rule, while other commenters said administering the terms and conditions 3, 1891 required an applicant to file and
that the proposed definition of and conditions of a grant, but will allow get government approval of a map
‘‘trespass’’ was too open ended and gave the facts posed by a particular situation before the right-of-way vested. The 1891
BLM too much discretion. In the give meaning to this phrase. Act differed from the 1866 Act in
proposed rule we defined the term In the final rule we moved the several other ways, too. Unlike the 1866
‘‘trespass’’ in the body of the regulatory definition of ‘‘zone’’ from proposed Act, the 1891 Act defined the physical
text in section 2808.10, as we do in the section 2806.5 to this section. We extent of the right-of-way. In addition,
final rule. We disagree with the amended the definition in the final rule the 1891 Act allowed for establishment
commenter that the definition of the to more accurately describe a zone as of rights-of-way for irrigation purposes
term is too open ended and gives BLM ‘‘one of eight geographic groupings on reserved lands; the 1866 Act did not
too much discretion. The final necessary for linear right-of-way rent apply to reserved lands.
definition is consistent with previous assessment purposes, covering all lands When FLPMA was enacted in 1976, it
regulations (see previous sections in the contiguous United States.’’ repealed the existing laws governing
2800.0–5(u), (v), and (w)) and does not rights-of-way and replaced them with a
Section 2801.6 Scope
give BLM any more discretion than do single mechanism for establishing a
previous rules. This section explains what these final right-of-way over the public lands.
Several commenters said that the regulations apply to and what the final Section 501(a) of FLPMA provides the
definition of ‘‘unnecessary and undue regulations do not apply to. In this final Secretary of the Interior with authority
degradation’’ should be changed to rule we combined proposed sections to ‘‘grant, issue, or renew rights-of-way
‘‘unnecessary and undue damage’’ and 2801.7 and 2801.8 into this section. We over, upon, under, or through’’ the

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public lands. 43 U.S.C. 1761. In enforcement authority. Section 302(b) review. OMB approved the information
addition, FLPMA provides the Secretary provides that the Secretary ‘‘shall * * * collection requirements under Control
with authority to impose terms and take any action necessary to prevent Number 1004–0189, which expires
conditions on these rights-of-way that, unnecessary or undue degradation of October 31, 2005.
among other things, ‘‘minimize damage the lands.’’ 43 U.S.C. 1732(b). In
Section 2801.8 Severability
to scenic and esthetic values and fish addition, section 303(g) provides: ‘‘The
and wildlife habitat and otherwise use, occupancy, or development of any This section explains that if any court
protect the environment.’’ Section portion of the public lands contrary to holds provisions of these regulations
505(a); 43 U.S.C. 1765. any regulation of the Secretary or other invalid, the remainder of the rules are
But FLPMA did not terminate rights- responsible authority, or contrary to any not affected. This principle has always
of-way established under the prior order issued pursuant to any such applied to BLM regulations, but it is
statutes. Instead, FLPMA expressly regulation, is unlawful and prohibited.’’ stated here for clarity. This section was
preserved and protected such pre- 43 U.S.C. 1733(g). BLM’s trespass proposed as section 2801.10. We made
existing private rights-of-way. Section regulations, at 43 CFR part 9230, specify editorial changes to the section, but its
701(a) of FLPMA provides that FLPMA that, among other things, the effect is the same as the proposed rule.
does not terminate ‘‘any valid lease, ‘‘extraction, severance, injury, or Section 2801.9 When Do I Need a
permit, patent, right-of-way, or other removal of timber or other vegetative Grant?
land use right or authorization’’ existing resources or mineral materials from
at the time of FLPMA’s enactment. 43 public lands under the jurisdiction of This section is a combination of
U.S.C. 1701, note 1. In addition, section the Department of the Interior, except proposed sections 2801.7 and 2801.8. It
701(h) of FLPMA provides that all when authorized by law and the explains that you must have a grant
actions taken by the Secretary in the regulations of the Department, is an act when you plan to use public lands for
exercise of her authority under FLPMA of trespass.’’ 43 CFR 9239.0–7. certain systems or facilities, whether
are ‘‘subject to valid existing rights.’’ 43 Trespassers are liable to the United over, under, on, or through public lands.
U.S.C. 1701, note 1. Together, these States in a civil action for damages and The section lists examples of the types
provisions of FLPMA ensure that pre- may be prosecuted under criminal law. of systems or facilities that require
FLPMA rights-of-way are protected and Therefore, with respect to 1866 Act grants. The section also explains
preserved. rights-of-way, Section 302(b) of FLPMA additional requirements for rights-of-
This final rule therefore reflects long- and the trespass regulations provide way for generating, transmitting, or
standing law and BLM’s historical BLM with the authority to take an distributing energy. Finally, the section
practice by clarifying that 1866 Act enforcement action against a right-of- provides a cross-reference to BLM
rights-of-way are not subject to way holder undertaking activities regulations for rights-of-way for
regulation so long as a right-of-way is inconsistent with the original grant. transporting oil and gas resources.
being operated and maintained in We added new paragraph (b)(7) to Section 2801.10 How Do I Appeal a
accordance with the scope of the address statutory changes to the Federal BLM Decision Issued Under These
original rights granted. Because rights- Power Act (FPA) and FLPMA. These
Regulations?
of-way under the 1866 Act are perpetual changes incorporate existing policy and
and do not require renewal, no implement FPA and FLPMA This is a new section to these
authorization under FLPMA exists or is amendments. regulations. The proposed rule listed the
required in the future. Therefore, unless One commenter stated that the final basic contents of this section for each
a right-of-way holder undertakes rule should state if there are any rights- action which allows a right to appeal.
activities that will result in a substantial of-way outside the scope of the rule and This final rule replaces the appeals
deviation in the location of the ditch or should address rights-of-way in language in each of those sections with
canal, or a substantial deviation in the wilderness areas or ‘‘short term rights- a cross-reference to this section. This
authorized use, no opportunity exists of-way on wilderness lands.’’ We did eliminates redundancy and brings this
for BLM to step in and regulate a right- not amend the final rule as a result of rule in line with other BLM regulations
of-way by imposing terms and these comments. However, the final rule that handle appeals sections in a similar
conditions on the right-of-way’s explains what the final regulations do manner.
operation and maintenance. Simply not apply to and includes language in We received several comments on the
stated, there is no current BLM paragraph (b)(3) that states that the subject of appeals. One commenter
authorization to which such terms and regulations do not apply to ‘‘Lands wanted the regulations to state whether
conditions could be attached. Therefore, within designated wilderness areas, or not applicants had the right of appeal
Title V of FLPMA and BLM’s right-of- although BLM may authorize some uses if BLM rejected their applications. As a
way regulations do not apply to these under parts 2920 and 6300 of this result of this comment, we amended
rights-of-way. chapter.’’ final section 2804.26 and it now states
This does not mean, however, that that applicants have the right of appeal
BLM cannot take action to protect the Section 2801.7 Information Collection to the Interior Board of Land Appeals
public lands when a holder of an 1866 Matters (IBLA) if BLM denies their applications.
Act right-of-way undertakes activities We deleted this section from the final Several commenters wanted the
that are inconsistent with the original rule because it is not necessary to opportunity for State Director review for
right-of-way. In such a situation, if the publish this information in the text of initial disagreements with BLM before
right-of-way holder does not approach the regulations. BLM referred the matter to the IBLA.
BLM for a FLPMA permit authorizing These regulations contain information One commenter suggested language to
such activities, FLPMA and BLM’s collection requirements. As required by accomplish this administrative review.
trespass regulations provide BLM with the Paperwork Reduction Act of 1995 Although other BLM programs have
the discretion to take an enforcement (44 U.S.C. 3501 et seq.), we submitted adopted these reviews, BLM did not add
action against the right-of-way holder. a copy of the proposed information State Director review provisions to this
Title III of FLPMA provides the collection requirements to the Office of final rule. When you appeal a decision
Secretary of the Interior with broad law Management and Budget (OMB) for to IBLA, BLM is not prohibited from

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reconsidering or discussing the approved for any reason. Land use plans issue a grant or require common right-
appealed decision with you or other also designate right-of-way corridors. of-way use in BLM’s hands.
interested parties. If BLM decides to One commenter said that in paragraph
Section 2802.10 What Lands Are (b) of this section, we should replace
rescind or amend the appealed decision
Available for Grants? ‘‘require’’ with ‘‘propose.’’ We did not
as a result of additional review or
discussion with you or other interested This section explains that BLM grants change the final rule as suggested by the
parties, we may rescind or amend only rights-of-way for lands under its commenter. As noted above, Section
after asking IBLA to remand the matter jurisdiction and lists exceptions when 503 of FLPMA provides that BLM, to the
for BLM’s further consideration and we would not issue a right-of-way grant. extent practical, require, not simply
IBLA’s consent to this request. We These exceptions include instances propose, common use of a right-of-way.
encourage BLM personnel, grant when a statute, regulation, or public BLM is therefore required to issue
holders, and applicants to work toward land order excluded right-of-way uses, rights-of-way in common where it is
informal resolution of disputes over the lands are segregated or withdrawn practical and replacing ‘‘require’’ with
BLM decisions proposed or made by from right-of-way uses, or when BLM ‘‘propose’’ would be inconsistent with
BLM both before and after appeals are identifies areas as inappropriate in a the statute.
filed. In BLM’s right-of-way program land use plan or in an analysis of an One commenter said that BLM must
these informal reviews and discussions application. The section explains that consider the location of existing assets
have been and are a useful way to BLM may also require common use of and facilities when determining
resolve disputes without unnecessarily rights-of-way and may require location whether land is available. Another
formal mid-level reviews, such as State of a right-of-way within an existing commenter said that BLM should not
Director reviews. corridor. This section states that BLM require common use of a corridor if
Several commenters said that there is will designate right-of-way corridors location in the corridor would render
no part 4 in this title. The commenters through land use plan decisions. This use of existing facilities infeasible or
are mistaken. Part 4 of 43 CFR is in a section also suggests that you contact burdensome. We agree with the
volume separate from the volume where BLM to determine if the lands you are commenters. When issuing rights-of-
considering for a right-of-way are way in common, or requiring that a
BLM’s regulations are located. Parts 1
available for right-of-way use. right-of-way be issued in or adjacent to
through 999, including part 4, are in the
We added new paragraphs (a)(1), an existing corridor, BLM will consider
first volume of 43 CFR and parts 1000 (a)(2), and (a)(3) to the final rule to more whether or not the uses are compatible.
through 10010, including BLM’s completely explain the reasons why BLM will also consider the possible
regulations, are in the second volume. certain lands under our jurisdiction impacts a proposed use may place on
Subpart 2802—Lands Available for would not be available for a right-of-way the future usability of a corridor. In
FLPMA Grants use. These new provisions to the rule other words, if a proposed right-of-way
are consistent with the proposed rule, use would render a corridor unavailable
This subpart describes the lands that
our existing regulations at part 2300 for any future right-of-way uses, BLM
are available for rights-of-way and how (land withdrawals), subpart 2091 could decide that the proposed use
BLM designates corridors. Generally, (segregation and opening of lands), and should be located in some alternate
BLM designates lands as suitable for part 1600 (planning, programming, and location.
right-of-way uses through its land use budgeting). We also eliminated the Several commenters suggested
planning process, as described in discussion in proposed section inserting ‘‘or’’ between ‘‘regulation’’ and
FLPMA and existing regulations at 43 2802.10(b) of notifying the public ‘‘by ‘‘planning’’ in proposed paragraph (a),
CFR 1610. During this process BLM appropriate means’’ of designated and deleting the rest of the sentence
prepares land-use plans, called either corridors because it was vague and after ‘‘planning.’’ Commenters made this
‘‘resource management plans’’ or ‘‘plan because we already require public suggestion because they said
amendments.’’ After going through a notification as part of the land use environmental and other resource
process in which the public helps BLM planning process. conditions should already be addressed
identify issues the plan should address, Several commenters said that BLM in the land management planning
BLM then: should replace ‘‘may’’ with ‘‘will’’ process. When BLM completes, updates,
(A) Identifies resource and where it appears in proposed or amends a land use plan we undertake
information needs; paragraphs (a) and (b) of this section. an environmental analysis. However,
(B) Formulates alternatives; We did not make the change to the final when a project is proposed, BLM will
(C) Analyzes the effects of the rule in either proposed paragraph (a) or complete a site-specific NEPA analysis.
alternatives; (b). Issuing a right-of-way grant remains NEPA requires the site-specific
(D) Prepares a draft plan and a highly discretionary act on our part. environmental analysis and it is
environmental document for public Section 501(a) of FLPMA authorizes, but designed to identify how the project-
review and comment; and does not compel, the Secretary to issue specific activities may impact the
(E) Determines what resource and rights-of-way over, upon, under, or environment. The planning documents,
land-use decisions to make in the through the public lands (see 43 U.S.C. on the other hand, are more general in
approved plan. Among these decisions 1761(a)). Section 503 of FLPMA requires nature and generally do not and cannot
are what land uses are available for common use of a right-of-way but only address site-specific impacts of a given
right-of-way grants. Land use plans ‘‘to the extent practical’’ (see 43 U.S.C. project. Therefore, we made no changes
designate lands as: 1763). There may be circumstances to the final rule as a result of this
(1) Open to right-of-way grants; where BLM determines that it is not in comment.
(2) Right-of-way avoidance areas the public interest to issue a right-of- The same commenters recommended
(where right-of-way grants would not be way grant or to require common use of that we replace ‘‘require’’ with
issued unless there were no other a right-of-way area even when the lands ‘‘encourage’’ in proposed paragraph (b)
available alternatives); or are open to the development of right-of- since access roads, gathering lines, and
(3) Right-of-way exclusion areas way grants. Therefore, the final rule flowlines do not always fit neatly into
where right-of-way grants would not be continues to leave the discretion to existing corridors. The commenter said

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that such a requirement could render an between uses, it is not always possible are consistent with section 503 of
oil and gas project uneconomic. We did to restrict uses to designated corridors. FLPMA and existing policy.
not amend this section as suggested by We disagree with the commenters that Several commenters said that this
the commenter. As stated above, section the proposed regulations give BLM too section should identify how corridors
503 of FLPMA says that BLM must much discretion in issuing grants in are designated. The commenters also
require common use of rights-of-way to right-of-way corridors. BLM must have said that the process of designation
the extent it is practical. When the flexibility to choose whether or not through the land planning process or as
determining whether it is practical to a use should be located in a right-of-way provided by section 503 of FLPMA also
require a right-of-way to be located in a corridor to make sure uses are needs to be briefly described. Proposed
corridor, BLM will consider whether or compatible and to ensure that the public and final section 2802.11 identify the
not the new use will be compatible with interest is protected. factors BLM considers when designating
the existing use. If it is not, BLM will Several commenters said that forcing corridors. Therefore, the regulations
informally work with you to determine the use of corridors will make lease already address the first part of the
a right-of-way location that will both operations uneconomical and result in a comment. As for the second part of the
protect the public interest and meet waste of minerals and associated comment, we do not believe these rules
your needs. These types of issues are royalties from the public good. BLM should address the land use planning
best resolved during the preapplication agrees that the designation of a corridor process since BLM’s existing regulations
meeting. in a land use plan can impact, in some at subpart 1610 already address the
One commenter said that the cases, the development of mineral process and it is not necessary to repeat
regulations should make clear that resources. The land use planning those regulations here. Final paragraph
communication site facility managers process described above assures that our (a) of this section explains that as part
and facility owners need to allow shared analysis considers effects on other of the planning process under subpart
use of a right-of-way for pipelines and resource uses such as impacts to 1610, BLM designates corridors. You
communications cables. The commenter mineral extraction. It is frequently these can find additional information about
said that there should be a minimal same mineral extraction interests that the land use planning process in section
process for using existing pipeline need right-of-way corridors to support 202 of FLPMA (see 43 U.S.C. 1712).
rights-of-way for fiber optic cables and the transportation of materials to and Several commenters said that the
the like. The commenter said that this from their operations. We made no regulations should emphasize the
will serve the public and facilitate the changes to the final rule as a result of advantages of reduced NEPA
installation of facilities with minimal this comment. requirements, processing time, and costs
damage to BLM lands. We agree with that could occur through requiring
One commenter said that requiring
the commenter and encourage co- common use of existing or designated
common use of a right-of-way may be
location of fiber optic facilities with corridors. We agree with the
power line structures and within unpractical, for safety considerations, in
designing power lines. BLM considers commenters that common use of rights-
pipeline rights-of-way. One of the of-way and proper corridor planning
advantages of co-locating uses in one issues of safety when requiring common
use of a right-of-way. If BLM determines and use can lead to reduced processing
right-of-way is that NEPA work has times and decreased costs. However, we
already been done for the existing use that common use of a right-of-way is
unsafe, BLM will not require it. do not believe it appropriate to discuss
and therefore the amount of additional motivating factors for using corridors in
environmental analysis necessary for Section 2802.11 How Does BLM our implementing regulations.
any additional use would normally be Designate Corridors? Discussions about cost savings and
minimal unless the new use is processing time can occur during the
significantly different or other reasons This section explains that BLM may
designate corridors during the land use preapplication meetings discussed
apply. BLM currently has a categorical elsewhere in this final rule.
exclusion for the granting of rights-of- planning process described in 43 CFR
way wholly within the boundary of 1610. During this process BLM Subpart 2803—Qualifications for
compatibly developed rights-of-way. coordinates with other Federal agencies, Holding Grants
Because exceptions to this categorical state, local, and tribal governments, and
the public to identify resource-related This subpart describes the
exclusion may apply, BLM will qualifications necessary for applicants
determine the amount of analysis and issues, concerns, and needs. The
process results in a resource to receive right-of-way grants. It
additional work for additional uses on discusses:
a case-by-case basis. The amount of management plan or plan amendment,
(A) Who may hold a FLPMA grant;
analysis necessary cannot be which addresses to what extent you may (B) Whether another entity can act on
determined by a rule of general use public lands and resources for a grant holder’s behalf; and
applicability, and as a result we did not specific purposes. It also explains the (C) What happens to a grant if the
amend the rule to address the comment. factors that BLM considers when holder dies.
Several commenters said that once determining the locations and
BLM designates corridors in land-use boundaries of right-of-way corridors. Section 2803.10 Who Can Hold a
plans, it should require common use of Paragraph (a) is new to the final rule Grant?
the corridor and location of new rights- and generally explains how we This section explains the
of-way within the corridor to the extent designate corridors in our land use qualifications for holding a grant and
possible. The commenters said that the planning process, which is discussed in requires that you are:
proposed regulations give too much greater detail in subpart 1610 of existing (A) An individual, association,
discretion. As is stated in the proposed regulations. This provision provides corporation, partnership, or similar
rule’s preamble (see 64 FR 32118), BLM helpful background to an understanding business entity, or a Federal, state,
designates right-of-way corridors and of paragraph (b). Final paragraph (b) tribal, or local government;
issues grants within these corridors to lists the factors BLM considers when (B) Technically and financially able to
the maximum extent possible, but due designating corridors. Final paragraphs construct, operate, maintain, and
to resource concerns and conflicts (c) and (d) are new to this final rule and terminate the grant; and

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(C) Of legal age and authorized to do Section 2803.12 What Happens to My Section 2804.12 What Information
business in the state where the right-of- Grant If I Die? Must I Submit in My Application?
way would be located. This section explains that if an This section explains the information
This section is essentially the same as applicant or grant holder dies, any you must include in your application. It
that proposed, except that we added a inheritable interest in an application or requires you to file your application on
new paragraph (c) stating that you must grant will be distributed under state Standard Form 299 and fill in the
be of legal age and authorized to do law. In this rule, the term ‘‘inheritable’’ required information. This includes a
business in the state where the right-of- is not used in its technical sense. Here, description of the project, a project
way is located. Although this provision it refers to property passing by will or schedule, the estimated life of the
was not in the proposed rule, it is intestate succession. project, and construction and
consistent with previous section If the distributee of a grant is not reclamation techniques. You must also
2802.3(a)(5). qualified to hold a grant under section include a map of the project, a statement
One commenter asked if BLM is 2803.10, BLM will recognize the of your financial and technical ability to
authorized to issue grants to foreign distributee as grant holder and allow the run the project, and any plans,
entities and if so, what the distributee to hold its interest in the contracts, and agreements concerning
qualifications are. FLPMA is silent on grant for up to two years. During that the proposed use(s) on the right-of-way
the subject of whether BLM may issue period, the distributee must either and its effect on competition. We
a FLPMA grant to foreign entities. The become qualified or divest itself of the require a complete proposed project
part 2800 regulations are similarly interest. We added this provision to the description to process the application,
silent. Regarding MLA requirements, final rule to make sure we have to complete an accurate NEPA analysis,
however, 30 U.S.C. 185(a) makes the consistent processes in place for cases and to make a determination whether
qualifications provisions of 30 U.S.C. where an applicant or a grant holder the proposed use(s) indicate existing or
181 applicable to section 185. The part dies. potential competitive interest. BLM
2880 regulations reflect these Subpart 2804—Applying for FLPMA requires materials such as plans,
considerations. For example, final Grants contracts, agreements, etc., only if they
section 2883.10 states in part: have a direct bearing on the proposed
This subpart contains information and right-of-way uses. Section 501(b)(1) of
To hold a grant or TUP [temporary use
permit] under these regulations, you must be policies concerning how to apply for FLPMA (and this final rule at section
a United States citizen, an association of such right-of-way grants under FLPMA. It 2804.12(a)(6)) requires a right-of-way
citizens, or a corporation * * * organized discusses: applicant to submit and disclose plans,
under the laws of the United States, or of any (A) Where applicants should file their contracts, agreements, or other
state therein. applications; information reasonably related to the
(B) What information BLM needs to use, or intended use, of a proposed
As in previous section 2802.3(a)(5), process their applications;
final section 2803.10 requires all entities right-of-way, ‘‘including its effect on
(C) Filing fees for the various competition,’’ which the Secretary
seeking a right-of-way grant under categories of applications;
FLPMA to be qualified to do business in deems necessary. BLM typically relies
(D) Exemptions from paying filing on application filing activity as the
the state where the right-of-way is fees and criteria for establishing
located. Thus state law must be indicator of competitive interest, but
reasonable costs; and may also examine the plans, contracts,
examined to determine the eligibility of
(E) How BLM processes applications, and other information supplied by an
a right-of-way applicant. Final section
including a customer service standard. applicant to make a determination on
2803.10 is substantially the same as
previous regulations. Section 2804.10 What Should I Do competitive interest. We usually process
Before I File My Application? applications on a first come-first serve
Section 2803.11 (Proposed) Must I basis, unless:
Submit Proof of My Qualifications With This section encourages you to
(A) Application activity indicates
My Application? schedule a preapplication meeting with
there is a competitive interest; or
BLM to discuss your right-of-way grant
Due to reorganization, we moved the application. This section also explains (B) Planning decisions, applicant
substance of this proposed section to that we may share any information you plans, contracts, agreements, or other
paragraph (b) of final section 2804.12. provide to us at this initial meeting with information indicate there is a
Please see that section for a discussion other agencies to help us to better competitive interest.
of this matter. coordinate the application process. This section also requires business
Section 2803.11 (Final) Can Another Final section 2804.13 provides that we entities to submit additional
Person Act on My Behalf? will keep confidential any information information about their business.
you submit that you identify as such, to Paragraph (b) of this section was
This section allows another person to the extent allowed by law. proposed as section 2803.11. BLM
act on your behalf if you have We received no substantive comments requires the information in paragraph
authorized the person to do so under the on this section and except for editorial (b) to verify the legal status of
laws of the state where the right-of-way changes, it remains as proposed. applicants, including verification that
would be or is located. This section is the persons representing the applicant
slightly different from what we Section 2804.11 Where Do I File My are authorized to do so. Under this
proposed in that the final rule requires Grant Application? paragraph a business entity must submit
that you follow the laws of the state This section explains where you must copies of the formal documents creating
where the right-of-way would be or is file your right-of-way grant application. the entity and evidence that the party
located. We believe this is reasonable, We received no substantive comments signing the grant application has
consistent with the intent of the on this section and except for editorial authority to act on the business entity’s
proposed rule, but most importantly, it changes, this section remains as behalf. To make it clearer, this final rule
sets the appropriate legal standard. proposed. uses different terminology than the

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proposed rule, but the effect of this final determine whether competition exits, paragraph (c) of this section should be
rule is the same as that proposed. but we may also ask an applicant for limited to requests for ‘‘relevant’’
This section also informs you that if additional information concerning the information or all ‘‘pertinent’’
you are an oil and gas lessee or operator, proposed right-of-way to verify whether information, and any requirements in
and you need a right-of-way for access competitive conditions exist. We believe the regulations to ask for more
to your production facilities or oil and that adding a definition of competition information is ‘‘too broad and open-
gas lease, you may include your right- to this regulation would not add any ended,’’ and could result in limitless
of-way requirements in your new or useful information to the requests for additional information.
Application for Permit to Drill or common understanding of the word, Final section 2804.12(c) states that BLM
Sundry Notice. This improves and therefore did not add a definition of can require an applicant to provide
processing and is consistent with the term. additional information at any time
existing policy. Several commenters said the final rule while processing an application. The
One change from proposed section should provide for applicant-prepared comment implies that BLM could
2804.12 is our deletion of ‘‘On the form, Environmental Assessments and third-
require information not relevant to
give your name and address and the party prepared Environmental Impact
name and address of any authorized evaluating an application. We disagree.
Statements. The commenters said this
agent * * *’’ from the second sentence BLM will implement this provision in a
practice is authorized by Council on
of proposed paragraph (a). We did this Environmental Quality (CEQ) common sense manner, limiting
because the form itself requires you to regulations at 40 CFR 1506.5. requests to only that additional
submit this information and therefore Environmental documentation (resource information that is both relevant and
these words are redundant. In final surveys and reports, environmental necessary for BLM to properly evaluate
paragraph (a)(2), we added ‘‘operating’’ assessments, and environmental impact a right-of-way proposal and to process
and ‘‘terminating’’ the project to the list statements) prepared by third parties or an application in an efficient and timely
of things you need to address in your provided by right-of-way applicants is a manner.
application to ensure that you describe well-established and common practice Examples of the type of information
a proposed project completely. As a under existing BLM NEPA guidance in we may require are provided by a
result of these changes, final paragraph H–1790–1. Chapter V–B.1.h, states reference to final section 2884.11(c).
(a)(2) now includes all phases of a contracting may be used for preparation
Several commenters objected to the
proposed project. of an environmental impact statement
In final paragraph (a)(4), the term requirement to give BLM a plan of
(EIS) or for certain analyses to support
‘‘facilities’’ replaces the term development and stated that it is overly
preparation of an EIS and that either
‘‘improvements.’’ We made this change standard Federal contracting procedures burdensome, expensive, and
to make this section consistent with the or third-party contracting approaches unnecessary. Final section 2804.25(b)
rest of the rule and because the may be followed. H–1790–1, Appendix does not require submission of a plan of
definition of ‘‘facility’’ includes 7.B. further clarifies that a third-party development as a universal requirement
structures and improvements. contract is an option when BLM cannot for all applicants. BLM would require a
In final paragraph (b)(4), we added prepare a required NEPA analysis due to plan of development only where
text concerning identification of the time, budget, or other limitations or detailed information about a proposed
number and percentage of any class of when either the BLM or the applicant right-of-way development and use is
voting shares of the entity which certain requests that a contractor be hired to both relevant and necessary for BLM to
shareholder(s) are authorized to vote. prepare the EA or EIS. Therefore, adding properly analyze a proposal and render
This makes final paragraph (b)(4) this guidance to the final rule would be a decision. This is consistent with
consistent with business entity repetitive and unnecessary. proposed sections 2804.20(b).
qualification requirements in section We also agree with the commenters A few commenters said that BLM
501(b)(2)(B) of FLPMA and previous that under CEQ rules the practice is should require an applicant to provide
section 2882.2–1(b)(2). We made the acceptable. Although this practice is not an ‘‘initial environmental assessment’’
same type of change in final paragraphs specifically restated in the final rule as part of the application since that
(b)(6) and (b)(7) by adding ‘‘directly or under section 2804.12, this option would enable BLM, other Federal
indirectly,’’ to be consistent with remains available to applicants. BLM agencies, and state governments to
business entity requirements in section will consider environmental
501(b)(2)(C) of FLPMA and previous better assess impacts on endangered
documentation offered by or agreed to
section 2882.2–1(b)(3) and final section species, cultural resources, and the like.
by an applicant in determining the
2883.12 of this rule. Also, in final BLM disagrees with the commenter and
appropriate cost recovery category
paragraph (d) of this section we under section 2804.14. The we did not amend the final rule as a
corrected the citation to BLM’s oil and environmental documentation, result of this comment. Because we
gas operating regulations. however, must meet BLM standards, receive a wide range of applications in
One commenter said that proposed and any conclusions drawn from the terms of scope and impact, we believe
section 2804.12(a)(6) is vague. The documentation remain BLM’s that a universal requirement that all
commenter also said that we should jurisdiction. This final rule contains no applicants be required to submit
define ‘‘competition’’ in the final rule. provision to either discourage or environmental studies would be
Section 501(b)(1) of FLPMA requires a prohibit applicants from providing inappropriate. However, under this final
right-of-way applicant to submit and environmental documentation for BLM rule, applicants may continue to
disclose those plans, contracts, to use to determine appropriate cost volunteer such information to facilitate
agreements, and other information recovery categories and process the processing of an application. Under
reasonably related to the use, or applications more efficiently and final sections 2804.12(c) and 2804.25(b),
intended use, of the right-of-way, timely. BLM may require an applicant to
‘‘including its effect on competition.’’ Several commenters said that the final provide this type of information if we
As discussed above, BLM typically rule should make clear that the determine it is necessary to process an
relies on application filing activity to additional information allowed under application.

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Section 2804.13 Will BLM Keep My Domestic Product (IPD–GDP), has risen way cases. This analysis showed that
Information Confidential? by an average annual rate of about 2.88 the cost of processing right-of-way
This section makes it clear that BLM percent or a total of about 55 percent. cases, including labor costs, had
A 1995 audit of BLM’s cost recovery increased since 1986 at approximately
will keep confidential any information
efforts by the OIG found BLM was not the same rate as the IPD–GDP.
in your application that you mark as
recovering all the costs of processing Therefore, the final rule adjusts costs
‘‘confidential’’ or ‘‘proprietary’’ to the
applications and recommended that upward based on the IPD–GDP and
extent allowed by law.
BLM revise its regulations to recover all allows for automatic adjustments based
We amended this section slightly by
applicable costs and to provide for on this indicator. However, in the final
replacing ‘‘to the extent allowed under
adjusting processing costs on an annual rule we also made several other
the Freedom of Information Act (5
basis to reflect changes in economic adjustments in the proposed rule fee
U.S.C. 552)’’ with ‘‘to the extent allowed
conditions. The audit estimated that schedule, in response to comments,
by law’’ to be consistent with other BLM BLM incurred about $640,000 in
which affect the final amounts and
regulations. We received no substantive additional expense in excess of the fees
number of categories for both the
comments on this section. collected in 1993. (This shortfall comes processing and monitoring schedules.
Section 2804.14 What Is the Processing to $213 per application, or $800,000 and The proposed rule requested public
Fee for a Grant Application? $336 respectively when adjusted for comment (see 64 FR 32108) on whether
changes in the IPD–GDP.) Since section BLM should adopt a ‘‘Minimum
This section requires you to submit a
504(g) of FLPMA requires that BLM set Impact’’ category similar to the one
processing fee for a right-of-way grant
these costs by regulation and the current proposed by the U.S. Forest Service. We
application before BLM incurs the costs
regulations contain fixed charges, BLM received several comments suggesting
to process your application.
must revise the regulations to revise the BLM establish a minimum impact
This final rule changes the
processing fees. The final rule will processing fee category or a category for
terminology describing this fee. In the
establish a mechanism to adjust the any action which might take from 1 to
proposed rule we used the phrase
processing fees on an annual basis to 8 hours to process, such as most
‘‘filing fee’’ to describe the fee. The final reflect changes in economic conditions. assignments and many renewals. We
rule uses the phrase ‘‘processing fee’’ The preamble to the proposed rule at agree that some right-of-way actions can
because that term more accurately 64 FR 32107 states that BLM conducted be accomplished in less than eight
describes the fee. field studies in 1982 and 1983 which hours, but saw no benefit in referring to
We added a new provision to measured the costs of processing right- the category as the ‘‘minimal impact
paragraph (b) of this section which of-way applications and monitoring category,’’ or restricting the category to
explains that there is no fee if BLM grants. Between November 12, 1982, only work on assignment and/or
takes one hour or less to process your and July 25, 1986, BLM field offices renewal applications. Therefore, in the
application. We believe that the kept and reported actual time and cost final rule, BLM establishes a new
minimal costs involved to process an on some 500 right-of-way projects in processing and monitoring category
application requiring one hour or less of non-major categories (see 51 FR 26840 (Category 1) for all right-of-way actions
work does not justify charging a fee. (July 25, 1986)). In 1986, the agency where we spend more than one hour,
We added a provision at final section conducted an extensive field study of but less than or equal to eight hours,
2804.14(f) that we inadvertently omitted processing and monitoring costs, which processing the application or
from the proposed rule. This provision generally verified the processing costs monitoring the grant, but we did not use
allows applicants to pay full actual costs developed from the earlier studies (see the ‘‘minimal impact category’’ title.
for processing applications and 64 FR 32108). In the final rule we increased the
monitoring grants. Although FLPMA When we set the MLA processing fees number of processing categories to six
requires the Secretary to consider the in 1985 (50 FR 1308, Jan. 10, 1985) and from four, adding a Category 1 for
factors at section 304(b) of FLPMA in in the proposed rule, we set fixed MLA processing routine applications that
determining reasonable fees, and these processing and monitoring fees at our require greater than one hour and less
regulations provide for that, BLM has estimated actual cost, as required by than or equal to 8 hours to process, as
found that some applicants prefer to pay section 28 of the MLA. The preamble to just discussed, and another category for
actual processing and monitoring costs the rule proposing MLA cost recovery processing Master Agreements. Under
to assist us in processing their fees in 1983 makes plain that the fees the final rule no fee is assessed for any
applications in a more timely manner. were developed by a BLM task force action that takes 1 hour or less to
This rule is consistent with previous consisting of employees with expertise process. We then adjusted new Category
section 2808.3–1(f) and section 307(c) of in the processing and monitoring of 2 to include actions that are estimated
FLPMA (43 U.S.C. 1737(c)). Section right-of-way cases, budgeting, and cost to take a maximum of 24 hours but
307(c) allows the Secretary of the accounting. The task force analyzed data greater than eight hours. New Categories
Interior to ‘‘accept contributions or from a representative sample of actual 3 (>24 hours ≤ 36 hours) and 4 (>36
donations of money, services, and right-of-way cases and examined several hours ≤ 50 hours) are the same as
property, real, personal, or mixed, for demographic variables which might proposed Categories II and III. Category
the management, protection, influence cost, including location and 5 in the final rule is for Master
development, acquisition and conveying area of the right-of-way or temporary Agreements only. The proposed
of the public lands * * *.’’ use area. Fees were based on the regulations did not contain a
BLM has not increased processing estimated work effort required to specifically numbered category for
fees since publication of its final rule in accomplish the processing actions, Master Agreements, and in this final
July 1987. Since January 1986, the including personnel costs, fringe rule BLM gave these agreements their
Consumer Price Index for All Urban benefits, vehicle usage, and indirect own category number. Category 6 in the
Consumers (CPI–U) has risen by an costs (see 48 FR 48478, 48479 (Oct. 19, final rule (Category IV in the proposed
average annual rate of about 3.83 1983) and 64 FR 32108 (June 15, 1999)). rule) is for processing applications
percent or a total of about 73 percent. In 1995, BLM program experts where the estimated work hours are
The Implicit Price Deflator, Gross analyzed a cross section of our right-of- greater than 50.

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For Processing Categories 1 through 4, way, such costs may be included in States Nuclear Regulatory Comm’n, 601
labor costs are by far the largest actual costs; F.2d 223 (5th Cir. 1979), cert. denied,
percentage of processing costs. Costs (2) The monetary value, or objective 444 U.S. 1102 (1980)). In our preamble
associated with environmental analysis worth, of the right-of-way or what the to proposed rules at 51 FR 26840 (July
and other application processing steps right-of-way grant is worth in financial 25, 1986), we stated that for non-major
for these categories are predominantly terms to the applicant. The preamble to projects, there is little opportunity for
labor costs. The costs of supplies, the proposed rule at 51 FR 26837 (July public benefits or public services
printing, fuel, and lodging are relatively 25, 1986) sets forth a number of ways to because of the local nature of such
small. For Processing Category 5 and 6 estimate monetary value, such as projects. We find, in practice, that any
applications, the extent of the required computing residual return or the small benefit to the public provided by
environmental analysis is usually an residual profit of the project. Monetary the processing of fixed-fee right-of-way
important factor in determining value can be an enhancing factor when applications is speculative and
processing costs, particularly if the that value is greater than BLM’s outweighed by the monetary value to
application requires an EIS. Processing processing costs. This enhancing factor the applicant of the right or privilege
costs for Category 5 and 6 applications may offset a diminution caused by sought. Major categories 5 and 6 present
are, however, worked out in advance another of the ‘‘reasonableness’’ factors, more opportunities for public benefits;
between BLM and the applicant either such as public service provided. In (5) Any tangible improvements, such
through a Master Agreement or a considering and applying this factor as roads, trails, recreation facilities, or
detailed accounting of work hours spent since 1987, we have noted that the other direct services to the public,
on processing an application. monetary value of the right or privilege which provide significant public service
In the proposed rule we used the term sought has been much greater than the and are expected in connection with
‘‘field examination’’ in the category processing cost; constructing and operating the project.
definitions and defined it in section (3) The efficiency with which BLM This is referred to in section 304(b) of
2801.5 of this part. In the final rule we processes an application. This factor FLPMA as ‘‘public service.’’ A negative
refers to BLM’s ability to process an
eliminated this term and instead based factor, such as an adverse impact on
application with a minimum of waste by
the categories on the number of Federal wildlife or surface drainage, may
carefully managing agency expenses and
work hours needed to process the prevent an improvement from being a
time. An explanation of this factor is set
document or request. We made this public service. Data collection that we
forth at 51 FR 26838 (July 25, 1986).
change for Categories 1 through 4 need to monitor an activity is not a
Among the considerations there is the
because the non-labor costs are public service. As mentioned above, for
establishment of a cost recovery process
relatively insignificant compared to non-major projects such as those falling
that does not cost more to operate than
labor costs, and for Categories 5 and 6 in categories 1 through 4, there is little
would be collected under the process.
because the non-labor costs are opportunity for public service in such
Charging fixed fees based on the number
considered as part of a Master of Federal work hours necessary to
projects. If a project provides a small
Agreement or are otherwise negotiated. process an application benefits public service, it will usually be
As used in the proposed rule, field applicants by informing them in outweighed by the monetary value to
examinations conducted during the advance what the fee will be, and the applicant of the right or privilege;
processing of applications included the eliminates the enormous time and and
time and travel costs for BLM personnel. expense that would be required to track (6) Other relevant factors (see section
Because, as explained, labor costs the processing of each document on a 2804.21 of the final rule). This factor
constitute nearly all costs associated case-by-case basis. The use of current allows BLM State Directors to reduce
with field examinations, we decided to average costs to set a fee schedule is a actual processing costs based on a wide
measure costs by work hours. commonly accepted practice in both the range of special circumstances,
For processing and monitoring fees private and public sectors (see 50 FR including unique instances of public
that we collect under FLPMA, we are 1309 (Jan. 10, 1985) (preamble to the benefits or services. These reductions
required to consider the final rule setting fees for MLA rights-of- generally fall under the broad category
‘‘reasonableness’’ factors at section way). Our application processing and of ‘‘hardship,’’ that is, paying full actual
304(b) of FLPMA. These factors are: grant administration procedures, which costs would create an undue hardship
(1) BLM’s actual costs to process an are based on standard steps in internal on the applicant. There are an
application, including monitoring BLM Manuals and Handbooks, are insignificant number of applications
construction, operation, maintenance, reasonably efficient; (less than 1 percent of the total
and termination of a facility authorized (4) Costs incurred for the benefit of processed) where ‘‘other relevant
by a right-of-way grant. Actual costs do the general public interest rather than factors’’ can be applied.
not include management overhead, for the exclusive benefit of the In our proposed rule at 64 FR 32110,
which means costs of BLM State applicant. Under this factor, we we acknowledged that ‘‘[f]or all but
Directors and Washington office staff, examine whether any of the costs for complex projects * * * the
except when a member of this group such things as studies and data reasonability factors have little or no
works on a specific right-of-way collection have value to the Federal effect on actual costs.’’ The final rule
application or grant. Actual cost Government or the general public apart reflects this conclusion. Thus, for
includes both direct and indirect costs from processing the application. Courts categories 1 through 4, processing and
and other costs such as money spent on have held that processing which an monitoring fees under FLPMA are
special studies, environmental impact agency is required to perform in identical to the analogous category
statements and other analysis, and connection with a specific request (for under the MLA. (As noted above, MLA
monitoring activities. We estimated example, before approving a permit or fees are based on actual costs.) For
actual cost figures for each category grant) provides a special benefit to an example, a category 2 processing fee
using data from the studies described applicant, even if it also provides some under FLPMA is identical to a category
previously. Where an appraisal is benefit to the public. (See, e.g., 2 processing fee under the MLA. A
necessary to calculate rent for a right-of- Mississippi Power & Light Co. v. United category 3 monitoring fee under FLPMA

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is identical to a category 3 monitoring at the GS 9, Step 2 level (according to internal management reviews and
fee under the MLA. the 1987 General Schedule). periodic Inspector General and
We were aided in this analysis by a Most right-of-way actions are Government Accounting Office audits
1996 Solicitor’s Opinion on cost processed and monitored by employees ensure that BLM is following proper
recovery (M–36987), entitled ‘‘BLM’s who are at the GS 9 to GS 11 levels and procedures based on law, our
Authority to Recover Costs of Minerals who will earn between $20.02 (GS 9/1) regulations, and internal guidance. The
Document Processing.’’ That opinion and $31.48 (GS 11/10) per hour in 2005. final rule contains provisions for
clarified that ‘‘[a] factor such as ‘the Several commenters pointed out that appeals in the case of disagreement with
monetary value of the rights or reasonable costs criteria only apply to a BLM cost recovery decision (section
privileges sought by the applicant’ FLPMA rights-of-way and that the MLA 2804.14(d)), and for consideration of
could, when that value is greater than requires BLM to collect actual costs. A hardship and other factors under section
BLM’s processing costs, be weighed as few commenters said that we should 2804.21(a).
an enhancing factor, offsetting a amend the final regulations to make it Several commenters said that BLM
diminution due to another factor such clear that the applicant and BLM must should make cost adjustments based on
as ‘the public service provided’ ’’ (see agree on what are reasonable costs and the reasonable or actual processing costs
M–36987 at 36). Major categories 5 and that the applicant must have the ability from the previous year rather than
6 are more likely to reflect differences to monitor BLM to make sure it is basing it on the IPD–GDP or any other
in FLPMA and MLA fees. following the agreement. We received economic index. Previous section
In the final rule, we define each similar comments on the MLA right-of- 2808.3–1, which established cost
processing and monitoring category by way regulations. recovery fees in 1987, had no provision
the estimated number of Federal work Sections 304(b) and 504(g) of FLPMA to make annual adjustments in its
hours necessary to process or monitor require that right-of-way cost recovery Categories I through IV. The preamble to
the application/grant rather than a fees represent reasonable costs. BLM’s the proposed rule explained BLM’s
combination of criteria (number of process to identify reasonable cost determination that periodic adjustment
hours, availability of data, number of recovery fees has been in place since of the fees was reasonable, and included
field examinations, and need for land 1987 (see previous subpart 2808). This consideration of various ways to
use plan amendment) which in the final rule continues to identify accomplish it. This final rule uses the
proposed rule were used to define all reasonable costs using cost recovery IPD–GDP as the basis for making annual
the categories (except the Master categories for a right-of-way grant under adjustments in the new Categories 1
Agreement category). In doing so, it was FLPMA. BLM must apply the factors at through 4.
necessary to determine a ‘‘mean hour’’ section 304(b) of FLPMA unless the We evaluated the question of annual
or average number of hours for applicant chooses to pay the actual indexing while preparing the 1987 final
processing or monitoring for each costs. Likewise, the MLA requires that rule and have used the IDP–GDP since
category, and then apply the appropriate we collect ‘‘administrative and other August 1987 to make annual adjustment
cost figure to the mean hour in each costs’’ incurred for processing to right-of-way rent schedules under
FLPMA or MLA category. This ensures applications under that statute (30 previous section 2803.1–2(c)(1)(ii).
that each category is cost-weighted the U.S.C. 185(l)). Under the previous rule, Following consideration of various
same. For example, the mean hour for and this final rule, BLM determines in alternatives, and consultation with the
Category 1 is 4.5; for Category 2 the a processing fee schedule the cost Department of Commerce, BLM
mean hour is 16; for Category 3 the recovery fees for Categories 1 through 4. determined that applying this known
mean hour is 30; and for Category 4 the We will determine cost recovery fees in and generally accepted economic
mean hour is 43. the new Category 5 (Master Agreement) indicator is the most efficient method of
The next step in arriving at the cost through a negotiated agreement between ensuring that processing category fees
recovery fees in the final rule was to the applicant and BLM, as the comment adjust with changes in economic
determine the ‘‘mean per hour rate or suggests. All parties have generally conditions. Conducting annual reviews
cost figure’’ for FLPMA and MLA accepted the process of identifying set and analyses of the prior year
processing and monitoring categories. In fees in Categories 1 through 4 (and their processing costs would be a time and
this final rule Category 4 (which in the corresponding categories in the previous labor intensive effort, which,
proposed rule was Processing Category regulation) as reflecting average considering the widely accepted use of
III) was used as the basis for reasonable costs for processing economic indicators to make these kind
determining the mean per hour rate for applications in those categories. The of adjustments, we have determined is
all categories. We determined that a same applies for the MLA right-of-way unnecessary. BLM continues to believe
mean per hour rate of $21.46 was regulations at section 2884.12 of this that the IPD–GDP is the appropriate
appropriate. Multiplying the mean hour final rule. Although BLM determines method for annual indexing of
for each category by the mean per hour whether an application falls into processing fees because it reflects a
rate gives the fee for each category. Category 6, the decision typically heavily labor-based activity (see 64 FR
The following brief analysis verifies reflects an agreement between an 32109 and 32110) and we retained it in
the appropriateness of the above fees: applicant and BLM based on the final rule.
The $21.46 mean per hour rate for communication and cooperation. We One commenter said that BLM should
processing and monitoring fees would also added a definition of ‘‘actual costs’’ make it clear that we may enter into a
approximately equal the hourly wage in to section 2801.5 to help explain the Master Agreement at the applicant’s
2005 for an employee at the GS 9, Step difference between actual and option, but that BLM has approval
3 level. reasonable costs. authority over the final agreement. The
These rates compare favorably with The previous regulations contained commenter said the proposed rule
the 1987 processing fees which, if no provision for applicants to monitor suggests that entering into a Master
adjusted to a mean per hour rate, would BLM in its determination of cost Agreement could be done entirely at the
average $11 per mean hour or an hourly recovery fees, whether by decision or option of the applicant. We made the
wage earned by an employee in 1987 agreement, and such a provision is rule clearer by defining a Master
(when the existing rule was published) unnecessary in this final rule. BLM’s Agreement as a written agreement

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negotiated between BLM and an repair of facilities damaged by a storm FLPMA and MLA right-of-way
applicant to document cost recovery or other disaster. We did not revise the applications.
and other aspects of how application(s) rule in response to this comment, We also apply the FLPMA factors to
are to be processed. Master Agreements because activities necessary to ensure fees that are determined on a case-by-
are, under the right conditions, available safe and reliable right-of-way use are case basis (Category 6) or by agreement
to applicants, but it requires agreement normally provided for by the grant, and (Category 5). For those fees, BLM would
between BLM and the applicant, and is would be considered within the scope give the applicant an estimate of the
not at the sole option of either party. of the authorized use. If maintenance or proposed fee after estimating the actual
Final section 2804.18(b) makes it clear emergency activities are not within the cost of processing the application and
that BLM will not enter into a Master scope of an existing grant, the proposed considering the other FLPMA factors. If
Agreement if it is not in the public use would require a separate the fee is set at less than our actual costs
interest. application. Under section 2804.21(a)(4) because of one of the FLPMA factors,
Several commenters said that in of this final rule, if you include relevant processing could not proceed until
determining the processing costs, BLM information in your application, the funding for the shortfall became
should consider reducing fees in cases BLM State Director will consider, in available through the BLM budget,
where the applicant does a considerable determining your processing fee, contributions by the applicant, or other
amount of work that benefits the public, whether you need a right-of-way grant means.
such as archaeological collection and to mitigate certain damages or hazards. For additional information on how
mitigation. We agree with the We encourage applicants to include BLM applies the FLPMA factors in
commenter that BLM may consider provisions for emergency use or determining processing fees, and other
beneficial work performed by an maintenance in the original grant so as elements affecting processing costs,
applicant, such as archaeological to avoid having to apply for the use please refer to 64 FR 32107 to 32111
collection above and beyond what is separately. (June 15, 1999) and 51 FR 26836 to
required, in determining whether fees One commenter said that there is no 26841 (July 25, 1986).
might be reduced. BLM can consider One commenter said that the premise
reason to charge a fee for less than eight
such factors under final section that BLM should determine category
hours of work. We disagree. Section
2804.21(a)(7), which allows fees by the number of hours spent in
504(g) of FLPMA requires that the processing the application is false, but
consideration of appropriate United States be reimbursed for
management of public lands and the that there is not enough data to evaluate
reasonable costs associated with alternatives. Another commenter said
applicant’s equitable interest. We do not processing right-of-way applications.
agree that BLM should consider that the bulk of an agency’s processing
FLPMA does not provide for fee and monitoring costs is most accurately
reducing fees due to mitigation the reduction or elimination based on the
applicant undertakes. Mitigation measured by the total number of person
number of hours an application takes to hours devoted to processing and
addresses the consequences of the
process. As explained earlier, we monitoring activity, not whether the
project; it is not equivalent to, for
determined that for actions taking less activity involves one or more ‘‘field
example, a public service provided by a
than one hour to process, the minimal examinations’’ and one or more
project.
Several commenters suggested that costs involved to process an application vehicles. BLM has determined that
the final rule should require automatic does not justify charging a fee. For all using the number of hours spent in
yearly processing fee adjustments for other actions, unless you are exempt, as processing an application is an
inflation and that BLM should review provided in final section 2804.16, you appropriate measure to identify cost
the categories every ten years. We agree must reimburse BLM for the reasonable recovery categories. We base this
with the commenters. Final section cost of processing a right-of-way determination on previous studies and
2804.14(c) uses the IPD–GDP to make application. We did not amend the rule sampling efforts completed in 1982–83,
annual adjustments and a new section as a result of this comment. A similar 1986, and 1995, and a review of known
2804.15 provides that BLM will rationale applies to actual costs under economic indicators. BLM also believes
reevaluate the processing fees for each the Mineral Leasing Act. that it is reasonable to equate
category, and the categories themselves, Several commenters said that there application processing costs to hours of
five years after the effective date of this should be criteria for measuring ‘‘full staff time required. We agree with the
final rule, and then every 10 years after reasonable costs.’’ We believe that the commenter that the number of field
that. final rule provides these. Section 304(b) examinations should not be the
Many commenters supported adding a of FLPMA identifies criteria for determining factor for processing
minimal impact cost recovery category. determining reasonable costs, as did categories and have deleted that
As discussed above, this rule does not proposed section 2804.18. These requirement from the final rule. In the
add a category specifically called a ‘‘FLPMA factors’’ appear in this final final rule, field examinations are
‘‘minimal impact cost recovery’’ rule at sections 2804.20 and 2804.21. considered only to the extent that they
category. However, this final rule BLM considered these factors when add to the number of hours necessary to
establishes a new cost recovery Category developing the schedules for this rule process and monitor a right-of-way use
1 for any right-of-way action requiring and previous rules. or grant.
more than one hour, but less than or The fixed fees in FLPMA Categories 1 Several commenters asked that we
equal to eight hours to process. The through 4 all reflect consideration of the provide a schedule of costs in the
Forest Service plans to adopt a similar FLPMA factors and represent reasonable regulations so that the public will know
category to replace the ‘‘minimal impact costs, as FLPMA requires. As explained what the costs are before starting a
category’’ found in its proposed rule. earlier, the fixed category fees originate project. We agree with the commenter.
One industry group thought we from field studies conducted in 1982 Final section 2804.14(b) identifies the
should include a minimum impact and 1983, and supplemented with set processing fees for Categories 1
category in the processing fee additional studies in 1986 and 1995. through 4.
regulations to take into consideration These studies gathered detailed Several commenters were concerned
activities such as emergency access for information on processing nearly 3,000 that BLM will use proposed Category IV

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(final Category 6) costs to pay for new these comments. The new Processing GDP since the 1986 studies and
NEPA and field studies. There is no Category 1 will apply to all applications comments. BLM has not increased these
provision in section 504(g) of FLPMA or requiring eight or fewer hours to fees since 1987. As stated in the
in this or previous regulations that process. The processing fee for Category proposed rule, the IPD-GDP is a
permits BLM to collect fees from a right- 1 applications is now $97, a significant reasonable measure to adjust fees that
of-way applicant for purposes of reduction from the proposed rule’s are heavily dependent on labor costs.
conducting any work beyond that Category I fee of $230. If you believe This final rule contains a periodic
necessary to process an application. that BLM has incorrectly designated an review requirement to reevaluate these
Moreover, section 304(b) of FLPMA application’s fee category, you may fees. The adjusted fee categories in this
expressly identifies ‘‘environmental appeal our determination to the IBLA. final rule represent BLM’s
impact statements’’ and ‘‘special Several commenters stated that the oil determination of current, reasonable
studies’’ as among the reasonable costs and gas industry pays its own way costs as required by section 504(g) of
for which an agency may be reimbursed. through bonuses and royalties and FLPMA.
In Nevada Power Co. v. Watt, 711 F. 2d. therefore should not pay any fees for A few commenters said the rule
913, 933 (10th Cir. 1983), the Court of rights-of-way to develop and produce should make clear that fee increases will
Appeals held that ‘‘[r]easonable costs of mineral resources. They stated that BLM not be applied retroactively. The
processing include the reasonable costs should reduce or eliminate fees for the processing fees in section 2804.14(b) for
of EIS preparation, as determined using oil and gas industry since: new Category 1 through 4 applications
the section 304(b) factors.’’ (A) The revenue stream to the public and the Monitoring Categories in section
Several commenters asked if BLM good resulting from mineral extraction 2805.16(a) Category 1 through 4 grants
does routine Category I (in the proposed is significant and roadways constructed apply only on and after the effective
rule, Category 2 in the final rule) for oil and gas operations are used by date of this final rule. Applications
applications in blocks and stages in the public and other governmental pending on the effective date of this
which BLM handles several agencies; final rule will be charged processing
applications at a time, will companies (B) BLM’s operating budget is less fees under subpart 2808 of the previous
be charged the full amount for each than the revenues received from the oil rule. However, the holder of a new grant
right-of-way. Where efficiencies can be and gas industry; authorized after the effective date of
gained by handling the processing of (C) Oil and gas rights-of-way are the these regulations will be subject to the
similar or related applications in infrastructure (roads and pipelines) that new monitoring fees.
combination, BLM will do so. If we allows the treasury to realize the One commenter said that BLM must
process several applications in a revenues being developed; continue to be responsible for NEPA
combined effort, BLM will identify that (D) BLM should recognize the tangible costs and that if industry chooses to pay
portion of the effort, in hours, and valuable benefits that right-of-way NEPA costs because of BLM delays from
attributable to each application and grants provide, such as archaeological staffing issues, industry should be able
determine the appropriate cost recovery and threatened and endangered species to offset the costs against processing and
categories based on those hours. Such surveys, road upgrades, and monitoring fees. We do not agree with
efficiencies will most likely occur in maintenance that benefits recreational the comment. FLPMA is clear that the
Categories 1 through 4, and in the users; and agency may charge fees for NEPA work,
context of a Master Agreement (Category (E) There must be a distinction and any application-related NEPA costs
5). between those entities that simply use will be charged to the applicant in
Several commenters asked that BLM the land and those that pay bonuses and Category 5 or 6. If BLM agrees to allow
provide clear-cut examples of specific develop minerals and pay royalties. an applicant to supply NEPA or other
types of activities that fall into each Please see the discussion in the documentation, that may reduce the
category. Because hours are the measure General Comments section at the time BLM requires to process the
BLM uses to determine the processing beginning of this preamble for a application (depending on factors such
costs category, and since there may be discussion of why we disagree with the as completeness and technical
several proposed right-of-way uses in a commenters. We note that any benefits adequacy), which may reduce the fee
given category, there is no such thing as to the public provided by BLM’s BLM charges. This could also hold true
a typical application. Therefore, we processing or any public service for set fees (Categories 1 through 4) if
have not provided specific examples for provided by the applicant through the number of BLM processing hours is
each category in the final rule. However, tangible improvements are factored into reduced enough that the application
we expect that most assignment and the fees BLM charges. See final section falls into a lower processing fee
renewal applications will require fewer 2804.20 and the discussions in the category. We note, however, that
than eight hours to process and will, preamble to the proposed rule at 64 FR regardless of whether BLM or the
therefore, fall into Category 1. Beyond 32110–32111. applicant supplies the documentation,
that, the hours BLM requires to process Many commenters said that BLM the applicant is responsible for the
the application, including those for should not increase fees. They said that costs.
assignments and renewals, and not the if we do so, fees should only be adjusted A few commenters said BLM needed
type of proposed use itself, determines to the 1986/1987 levels, based on the to make clear what the fees are targeted
the cost recovery category. study. Commenters said that the public toward recovering. We believe the rule
Many commenters said that fees for should not suffer a 30-percent increase does that. Section 504(g) of FLPMA and
processing assignments are too high. because BLM did not make proper these regulations provide for the
They also said that if the amount of time administrative decisions in the past. reimbursement of all reasonable
necessary to process the application is BLM does not agree with these administrative and other costs BLM
less than the category designation, the comments. First, we note that the fees incurs to process a right-of-way
fee should be lower. We changed the are charged to right-of-way applicants, application and to inspect and monitor
final rule to lower processing fees for not the public. Second, any increase the construction, operation, and
any right-of-way action requiring eight reflects an adjustment in the proposed termination of a facility authorized by a
hours or less to process, as suggested in rule, based on the increase in the IPD- grant. A variety of tasks are involved as

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BLM processes an application, provision in this final rule to ensure that reasonable processing costs. Final
including an analysis of environmental the fees and categories are sections 2804.20 and 2804.21 identify
impacts, as set forth at section 304(b) of systematically reviewed. Any factors that BLM will take into account
FLPMA. In this final rule, the range of adjustment that BLM makes to the fees for purposes of determining these costs.
tasks that BLM performs during or fee structure as a result of a review Several commenters said that the rule
application processing is measured by under this section, apart from applying should not eliminate the Federal agency
the hours necessary to perform them. the IPD-GDP, would require a separate exemption for processing fees. Other
Another comment stated that BLM rulemaking. commenters said we should establish a
should recognize that fees could be threshold over which we would begin
reduced if economic indices go down. Section 2804.16 Who Is Exempt From
Paying Processing and Monitoring Fees? charging an agency processing fees.
We agree with the commenter. As Another commenter said that the rules
provided in final section 2804.14(c), This section explains that under should exempt Federal agencies from
BLM will use the IPD-GDP as the basis certain conditions, state and local having to pay rent, but not from paying
to make an annual adjustment in fees. governments or their agencies are processing fees. Although previous
The annual adjustment in fees will exempt from paying processing and section 2808.1(b) provided for a Federal
follow any annual second quarter to monitoring fees. It also explains that if agency exemption, common practice has
second quarter change of this index, a grant application is associated with a been that many Federal agency right-of-
either up or down. Under final section cost-share road or a reciprocal right-of- way applicants do provide funds,
2804.15, fee adjustments, either up or way agreement, the applicant is exempt usually through a negotiated agreement,
down, may also occur after BLM from processing and monitoring fees. to reimburse BLM for processing costs.
completes a periodic review of the fees Section 502 of FLPMA and existing To recognize this common practice, and
and categories. regulations at 43 CFR subpart 2812 to provide consistency and efficiency in
Two non-profit cooperatives opposed provide for the issuance of cost share
fund transactions, we eliminated the
the fee increases because they stated and reciprocal rights-of-way. A
automatic Federal agency processing
that they would have to pass the costs reciprocal right-of-way is the grant to
costs exemption in this final rule.
along to their customers and that, the United States of an access right or
easement across private lands as a Several commenters said that BLM
instead of increasing the fees, BLM
condition of receiving a right-of-way does not have the authority to remove
should streamline its operations to
become more efficient and cost authorization from the United States. A the exemption for Federal agencies or
effective. Although non-profit cost share road authorization is created those agencies whose facilities are
applicants are not exempt from paying where the United States and a private eligible for financing under the Rural
processing fees, final section 2804.21 party participate, through agreement, to Electrification Act (REA). The
provides a mechanism for BLM to share costs of road construction and commenters said that this regulatory
consider the non-profit’s status in maintenance. change would require an amendment to
determining reasonable processing fees. This section was proposed as section FLPMA section 504(g) (43 U.S.C.
One of the factors BLM may consider is 2804.15 and except for minor editorial 1764(g)). We disagree. Section 504(g) of
whether the studies undertaken in changes, it remains as proposed. FLPMA does not require BLM to exempt
connection with processing the Several commenters said that BLM Federal agencies. It does allow us to
application of a non-profit have a public should not exempt Federal Power require a right-of-way applicant to
benefit. If during the periodic review of Marketing Agencies and other non- reimburse the United States for
processing fees and categories BLM profit energy providers from processing reasonable processing costs. Although
determines that revising the fees and fee fees and rent payments because that the previous rule provided for an
structure is warranted, we will make an would give them an unfair competitive automatic exemption to Federal
adjustment as set forth in section advantage in an open power market. agencies, that rule may be changed by
2804.15. If you believe that BLM’s Other commenters said that Federal subsequent rulemaking. Section 504(g)
category determination for your Power Marketing Agencies and other gives BLM discretion to require, by
application is incorrect, you may appeal non-profit energy providers should be promulgation of regulations, right-of-
the decision to IBLA. exempt from processing fees. Under way applicants, including Federal
section 504(g) of FLPMA, BLM may, by agencies, to pay reasonable processing
Section 2804.15 When Does BLM regulation, require an applicant to costs. Regarding facilities eligible for
Reevaluate the Processing and reimburse the United States for all REA financing, section 504(g) of FLPMA
Monitoring Fees? reasonable costs incurred in processing exempts from rent rights-of-way for
This is a new section to the final rule a right-of-way application. The previous electric or telephone facilities eligible
that explains that BLM reevaluates rule at section 2808.1(b) identified for financing under the REA, but
processing and monitoring fees for each ‘‘automatic’’ exemptions from payment specifically reinforces the authority for
category, and the categories themselves, of processing costs only for Federal requiring reimbursement of reasonable
within five years after they go into effect agencies; for state and local processing costs from such applicants.
and at 10-year intervals after that. This governments and their instrumentalities The final proviso of section 504(g)
section also lists some examples of the where the right-of-way use is for addresses this point.
types of factors BLM considers when governmental purposes benefitting the One commenter said that BLM needs
reevaluating these fees. general public; and for cost share roads to have the flexibility to determine
Several comments suggested a or reciprocal right-of-way agreements. when to waive processing and
periodic review and evaluation of the The only substantive change we made monitoring payments for Federal
processing and monitoring fees and from previous regulations is that Federal agencies. Under final sections 2804.20
categories, and this section is in agency applicants are no longer and 2804.21, BLM will examine a
response to those concerns. Previous automatically exempt. Any applicant, number of factors, e.g., public benefits
rules established fixed processing and including a Federal Power Marketing or public services, in determining the
monitoring fees with no provision for Agency, that does not meet the new reasonable costs to be charged an
reviewing them. BLM added this exemption requirements must pay applicant, including Federal agencies.

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One commenter said that a weak new section 2804.18 also provide a disagreements over Master Agreements.
argument could be made that the clearer distinction between the Inherent in the concept of a Master
Western Power Administration is information BLM requires when you Agreement is a cooperative relationship
exempt from paying processing fees request a Master Agreement, and the between BLM and an applicant. BLM is
because it is in the business of required content of a final negotiated committed to working with any
supplying electrical power to rural agreement. applicant wishing to pursue a Master
electric associations. As explained We amended paragraph (a) in the final Agreement. Under the proposed rule
earlier, section 504(g) of FLPMA section 2804.17 to be more descriptive and final section 2804.14(d), an
addresses facilities eligible for REA of what Master Agreements are and applicant’s signature on a Master
financing and exempts from rent rights- amended paragraph (b)(2) of this section Agreement constitutes an agreement
of-way containing these facilities. It by making clear what a preliminary with the processing category decision.
does not exempt such holders from work plan is. Final paragraph (b)(3) is More specifically, an applicant’s
reimbursement of reasonable also different from the proposal in that signature on a Master Agreement
application processing costs. Therefore, the final rule requires you to submit a constitutes agreement with all of its
the Western Power Administration is timetable along with the preliminary provisions, including the negotiated
not exempt from payment of reasonable cost estimate. We added this application processing costs. A signed
processing costs. requirement so BLM knows when you Master Agreement documents BLM’s
One commenter was concerned that expect BLM to complete processing decision on the processing category and
under these regulations, a non- your application. The customer service the applicant’s agreement with it.
commercial private individual would standard in final section 2804.25(c) for Therefore, we believe that an appeal of
pay agency costs for processing a grant, Processing Category 5 applications is a negotiated agreement would be rare. If
but a commercial user may not. The ‘‘As specified in the Master Agreement.’’ there are disagreements during the
commenter may be referring to the fact Your expectation of processing times is Master Agreement negotiation process
that an applicant for a right-of-way critical information for BLM to know in that cannot be resolved, negotiations
involving a cost-share road or reciprocal order to proceed and reach a final would not culminate in an approved
right-of-way agreement is exempt from agreement. Master Agreement. At that point, if the
paying processing and monitoring fees We also made other changes to this applicant still wished to pursue
under section 2804.16. Section 504(g) of section. We simplified proposed applying for a right-of-way grant, BLM
FLPMA provides that BLM may require paragraph (b)(4) and moved it to final would make a processing category
reimbursement of the reasonable costs section 2804.18(a)(1). Proposed decision outside the context of the
associated with processing right-of-way paragraph (b)(5) now appears as section Master Agreement process, and that
applications. This section further 2804.18(a)(3). decision would be subject to
provides that BLM need not secure One commenter said that the rule administrative appeal.
reimbursement in any situation where should require BLM and the applicant
there is in existence a cooperative cost- to meet to determine the scope of the Section 2804.18 What Provisions Do
share right-of-way program. data needed to process the application Master Agreements Contain and What
to limit the amount of additional Are Their Limitations?
Section 2804.17 What Is a Master information that BLM may request This is a new section that
Agreement (Processing Category 5) and under this section. The same commenter incorporates some new provisions and
What Information Must I Provide to BLM asked who in BLM has the authority to some from proposed section 2804.17.
When I Request One? sign the agreement. Since this final rule This section describes the provisions in
This section explains that a Master defines a Master Agreement as an a Master Agreement and explains that
Agreement is a negotiated agreement agreement negotiated between BLM and BLM will not enter into any agreement
between you and BLM covering an applicant, communications are by that is not in the public interest. It also
processing and monitoring fees for implication necessary to reach such explains that if you enter into a Master
multiple applications and grants within agreement. Therefore, a regulatory Agreement, you waive your right to
a defined geographic area. This section requirement to compel a meeting is request a reduction of processing and
also explains how to apply for a Master unnecessary. Signature levels for right- monitoring fees. We added paragraphs
Agreement. of-way grants are identified in the BLM (a)(1), (a)(2), (a)(4), and (b) to more
In the final rule we split proposed delegation of authority Manual at clearly describe the content of a Master
section 2804.17 into this section and the section 1203. For most rights-of-way, Agreement and added language
following section, which covers the the delegated authority is at the field concerning compliance with all
provisions and limitations of a Master manager level, and therefore, we will applicable laws and regulations,
Agreement. This revised section usually authorize Master Agreements at assignment of tasks and responsibilities
provides a clearer description of what a that level. Master Agreements would not of BLM and an applicant, and the public
Master Agreement is. The proposed rule apply to those major rights-of-way not interest standard that will guide BLM’s
identified it as a ‘‘cost recovery’’ Master delegated below the BLM State Director decision to enter into a Master
Agreement, whereas this final rule signature level, as these are usually Agreement.
identifies it simply as a Master single or related one-time actions which A few commenters recommended that
Agreement. We made this change to are handled in Processing Category 6. Master Agreements be for a term of
make clear that a Master Agreement is Two commenters said that BLM must twenty years or longer. The term of a
not strictly limited to negotiation of commit to making the private party an Master Agreement is negotiated and
processing and monitoring fees. A integral party in agreeing on the level of agreed to by an applicant and BLM. A
Master Agreement may contain work necessary to adequately monitor 20-year or longer term may be
negotiated agreements between BLM and administer plans for lands affected appropriate in some circumstances and
and an applicant concerning other by Master Agreements. Several not in others, and therefore should not
aspects of application processing and commenters asked that the final rule be a regulatory standard. Also, a Master
monitoring as indicated in final section provide for an appeals process for Agreement may or may not specify a
2804.18. Revised section 2804.17 and Master Agreements to resolve fixed term. A Master Agreement may

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provide that it stays in effect until or BLM may allow you to prepare your analysis, BLM will notify you in
unless specific conditions or environmental documents and conduct writing of what you owe. You may
circumstances occur. Whether or not a any studies related to your application. appeal this determination under section
term is specified, every Master However, if BLM agrees to allow you to 2801.10 of this part.
Agreement must contain provisions for perform this work, you must do it to The provisions in this section and
termination under final section BLM standards. Previous section final sections 2804.21 and 2804.22 were
2804.18(a)(7). 2808.3–1(d) encouraged applicants to do all proposed in section 2804.18. We
Many commenters asked for an all or part of any study or analysis, divided that proposed section into these
explanation of the ‘‘other information’’ including completing a NEPA sections and modified the content of the
in proposed section 2804.17(b)(9). document, required in connection with rule because we believe the proposed
Others said the application form should processing the application. The practice rule did not accurately reflect policy.
contain all of the information necessary of applicant-provided information and We also replaced the proposed rule’s
for BLM to process an application. Final NEPA documents is well established use of the term ‘‘reasonability criteria’’
section 2804.12(c) allows BLM to and is successful in increasing with ‘‘FLPMA Factors’’ because the
require you to submit additional efficiency and reducing BLM costs. latter promotes greater clarity owing to
information to BLM ‘‘at any time while Under final section 2804.19, dealing its statutory basis. BLM policy is to
processing your application.’’ Similarly, with Processing Category 6, we continue apply the FLPMA Factors when
final section 2804.17(b)(5) states that the to encourage this successful practice. determining processing fees for Category
application must contain ‘‘any other BLM will continue to allow applicants 6 applications. BLM has previously
relevant information that BLM needs to to provide us additional information to used these FLPMA Factors in setting the
process the application.’’ We believe assist us in processing their application. processing fees in Categories 1 through
that these sections make clear that any As with previous regulations, this final 4.
additional information we request will rule requires that all environmental In the final rule, we added a
be relevant to the application, and information an applicant provides meets definition of ‘‘cost incurred for the
necessary for us to process it. Examples BLM standards. benefit of the general public interest
of the type of additional information we Finally, this section states that BLM (public benefit)’’ to this section to
may request include plans of will set out timeframes for periodic describe that portion of the funds spent
development, cultural resource surveys, estimates of processing costs for a in connection with processing an
and inventories for threatened and specific work period. You must pay the application on collecting data or
endangered species (see sections amount due before we will continue to
performing studies that are determined
2804.25(b) and 2804.12(c) of these process your application. BLM will
to have value to the Federal Government
regulations). Due to the wide variety refund excess payments or adjust the
or the general public aside from being
and types of right-of-way applications next payment amount to reflect any
needed to process the application. The
and uses involved in BLM’s right-of-way overpayment.
Previous section 2808.3–1(f) provided term’s definition is substantially similar
program, we must have some flexibility to that in previous regulations at section
to determine the type of additional for payment of up to one percent of
actual construction costs as an 2800.0–5(q). Adding it makes the rule
information we may require to process clearer.
and approve an application. Therefore, alternative method for an applicant to
pay reasonable processing costs. One One commenter said that since the
we did not amend this section. word ‘‘actual’’ does not appear in the
commenter said that the 1 percent fee
Section 2804.19 How Will BLM Process would not be used because companies cited portion of the MLA, there is no
My Processing Category 6 Application? do not want to divulge the cost of their need for the regulations to distinguish
projects. Several other commenters between the treatment of fees under
This section describes how BLM will
supported eliminating the 1 percent fee. parts 2800 and 2880. The commenter
process a Category 6 application. In
As mentioned in the preamble to the said that the regulations should apply a
processing your application BLM will:
(A) Determine the issues subject to proposed rule (see 64 FR 32110), this ‘‘reasonableness standard’’ to both parts.
analysis under NEPA; provision has only been used once by an Section 28 of the Mineral Leasing Act
(B) Prepare a preliminary work plan applicant. This final rule eliminates this (30 U.S.C. 185(l)) authorizes the
that identifies data needs, studies, provision. Secretary of the Interior to recover
survey and other reporting administrative and other costs of
Section 2804.20 How Does BLM processing an application, while
requirements, and level of NEPA Determine Reasonable Costs for
documentation and outline consultation sections 304(b) and 504(g) of FLPMA
Processing Category 6 or Monitoring provide for the recovery of reasonable
and coordination requirements, public Category 6 Applications?
involvement needs, and a proposed administrative and other costs. Because
schedule to complete application This section explains that for the standards for cost recovery differ
processing; Processing Category 6 or Monitoring between the MLA and FLPMA, so must
(C) Develop a preliminary financial Category 6 applications BLM will the regulations.
plan that estimates the costs of consider the factors in this section to One commenter said that the
processing your application and determine reasonable costs for regulations sometimes use the term
monitoring the project; processing your application, unless you ‘‘waive’’ and sometimes say ‘‘reduce to
(D) Discuss with you the preliminary agree in writing to waive consideration zero’’ when referring to fees. The
plans addressed above; and of reasonable costs and elect to pay full commenter said the regulations should
(E) Work with you to develop final actual costs. These factors are set forth be consistent. We agree. Previous
work and financial plans which reflect in section 304(b) of FLPMA and are section 2808.5 used the terms
any work you have agreed to do. As part referred to as FLPMA factors in ‘‘reduction’’ and ‘‘waiver.’’ The
of this process BLM will complete our paragraph (a). With your application preamble to proposed section 2804.18
final estimate of the costs you must pay you should provide an analysis that used the term ‘‘reduction’’ to include a
BLM for processing the application and shows how your application meets each potential reduction to zero dollars (see
monitoring the project. of the FLPMA factors. After considering 64 FR 32119). In this final rule we are

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consistent in our use of the terms benefitting the general public. This final for the same system. We added new
‘‘reduction’’ and ‘‘waiver.’’ rule eliminates the previous automatic paragraphs (b) and (c) to this section to
exemption for Federal agencies. make it clear that BLM determines
Section 2804.21 What Other Factors One commenter said that small, non-
Will BLM Consider in Determining whether competition exists and the
profit associations, such as domestic procedures for a bid announcement if
Processing and Monitoring Fees? water associations, should be exempt we determine that competition does
This section sets out the factors the from paying any processing fees ‘‘in exist. Section 501(b)(1) of FLPMA and
BLM State Director will consider in view of the public benefits derived from final section 2804.12(a)(6) require a
determining your processing or our services.’’ Previous section
monitoring fee in any category, if you right-of-way applicant to submit and
2808.1(b) provided no automatic
include this information in your disclose plans, contracts, agreements, or
exemption for non-profit associations,
application. If the factors do apply to and we did not propose a change in this other information related to the use, or
your application, you need to include policy. The final rule makes no intended use, of a proposed right-of-
an analysis of how each of the factors provision for an automatic exemption way, and ‘‘its effect on competition.’’
applies. BLM will notify you in writing for non-profit associations, but does You should not construe this filing
of the BLM State Director’s fee provide that BLM will consider, in requirement as requiring you to make a
determination. You may appeal this setting a reasonable processing fee, determination on whether competition
decision under section 2801.10 of this whether an applicant is a non-profit exists or is likely. This new paragraph
part. This is consistent with existing organization and the studies undertaken reinforces the fact that BLM determines,
policy and previous regulations. in connection with processing its based on information provided in an
One commenter suggested eliminating application have a public benefit or the application, whether competition exists.
‘‘financial hardship’’ as a criterion for facility or project will have a benefit or Several commenters said that the
waiving or reducing cost recovery fees. special service to the general public or
The commenter said that if a cost current process of BLM’s beginning to
a program of the Secretary. process applications when they are
recovery fee creates a financial hardship
to an applicant, BLM should evaluate Section 2804.22 How Will the received should remain and that BLM
whether the applicant has the financial Availability of Funds Affect the Timing should provide the applicant an
capability to conduct the proposed use of BLM’s Processing? estimate of processing costs before the
according to the terms and conditions of This section explains that if BLM has right-of-way is granted. The majority of
the grant. Financial hardship for no funds to process your application, right-of-way applications BLM
waiving or reducing cost recovery fees we will not process it until funds processes are on a noncompetitive basis,
has existed since previous section become available or you elect to pay full and we expect this to continue.
2808.5 became effective on August 7, actual costs under section 2804.14(f) of However, if we determine that
1987. The ‘‘other factors’’ mentioned in this part. If reasonable costs to be competition exists, we will follow these
section 304(b) of FLPMA is the basis for charged to an applicant are significantly regulations and FLPMA. Under the
using financial hardship as a criterion less than BLM’s actual processing costs, previous rule and as provided in this
for lower cost recovery fees. This the customer service standards at final rule and section 2804.25, we will
provision is rarely utilized for the section 2804.25(c) may not apply, since inform the applicant in writing of the
reasons stated by the commenter. Yet, in the resources necessary to process these processing fee and will collect the fee
a very few instances, an applicant may applications will be subject to the before we process a right-of-way
show technical and financial capability availability of appropriated funds. This application.
to hold (construct, operate, maintain, is consistent with existing policy and
and terminate) a right-of-way grant, but previous section 2808.5. Section 2804.24 Do I Always Have To
the additional expense of paying a Submit an Application for a Grant
processing fee may be just enough of an Section 2804.23 What If There Are Using Standard Form 299?
additional burden that its payment Two or More Competing Applications
would create undue financial hardship. for the Same Facility or System? This section explains that if BLM
This final rule continues to allow for This section was proposed as section determines that competition exists
consideration of an applicant’s financial 2804.19. It explains that if there are two under section 2804.23 of this subpart,
hardship. Section 504(j) of FLPMA or more competing applications for the you are not required to submit an
makes clear that all grant holders must same facility or system and your application using Standard Form 299,
be technically and financially able to application is in: because there will be a competitive bid
construct the project for which the right- (A) Processing Category 1 through 4, process for the lands you propose to
of-way grant is requested. As required you must reimburse BLM for processing use. Section 2804.23 notes that BLM
by final section 2804.12(a)(5), each costs as if the other application or will describe the procedures in a notice
applicant must provide a statement of applications had not been filed; or published in a newspaper in the area of
financial and technical capability. (B) Processing Category 6, you are the lands involved and in the Federal
One commenter said that the responsible for processing costs Register.
regulations should give BLM the ability identified in your application. Cost
to waive or recover costs and charge sharing agreements by applicants are You are also not required to submit an
other agencies for its services depending possible. You must pay the processing application if you are an oil and gas
on the benefits to the public. As fee in advance. Consistent with existing operator and have need for a FLPMA
proposed, and as carried through in this policy, BLM will not process your right-of-way. You may submit your
final rule, BLM has the authority to application without the advance right-of-way requirements in your
recover fees from other agencies. Final payment. Application for Permit to Drill or
section 2804.16 retains exemptions for This section also explains that BLM Sundry Notice. This section is
state or local governments or an agency determines whether applications are consistent with existing policy and
of such government if a right-of-way compatible in a single right-of-way except for editorial changes, remains as
grant is for governmental purposes system, or are competing applications proposed.

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Section 2804.25 How Will BLM Process (A) Complete a NEPA analysis for the corridor designations. Given this
My Application? application or approve a NEPA analysis process, BLM believes requiring
This section explains that BLM will previously completed for the applicants to provide corridor
notify you in writing when we receive application. We amended this paragraph information is not necessary.
in the final rule by adding specific A few commenters said that requiring
your application and will identify your
citations to the Council on an inventory for threatened or
processing fee. BLM may require you to
Environmental Quality regulations and endangered species is another
submit additional information to
by making it clear that the NEPA extravagant cost for applicants to bear
complete your application. If we need
analysis may be approved or completed and they opposed it. They also said that
additional information to process your
for the specific application; it was ‘‘redundant, inefficient and costly
application, we will send you a written
(B) Determine whether or not your to our customers’’ for them to prepare
deficiency notice. BLM will also notify
proposed use complies with applicable reports and then be charged for BLM
you of any other applications for rights-
Federal and state laws; staff to go out to the field to confirm that
of-way which involve lands in your (C) If your application is for a road, they are accurate. Final section
application. determine whether it is in the public 2804.25(b) (proposed section
This section also lays out estimated interest to require you to grant the 2804.20(b)) states that BLM may require
processing times for the different United States an equivalent an applicant to submit additional
categories of applications based on the authorization across lands that you own. information ‘‘necessary to process the
complexity of the application and the In the final rule we made this paragraph application.’’ This same standard
amount of analysis that we must clearer by pointing out that situations applies to BLM review and verification
perform. The final rule uses a chart in requiring a holder to grant equivalent of applicant-supplied information. If
place of the description of the rights to BLM always involve access information is not necessary to process
processing times that was in the needs. BLM requires no equivalent an application, BLM will not request it.
proposed rule. We also replaced the rights involving other proposed right-of- Several commenters objected to the
term ‘‘working days’’ with ‘‘calendar way uses; provision in proposed section
days’’ to be consistent with the rest of (D) Consult, as necessary, with other 2804.20(e)(1) allowing BLM to modify
the rule, other BLM regulations, and the governmental entities; the area applied for and said that
Forest Service right-of-way cost (E) Hold public meetings if sufficient changing the route or location of
recovery regulations. public interest exists to warrant their facilities may render a project
BLM’s current policy for right-of-way time and expense; and uneconomic. Proposed section
approvals, set forth at BLM manual (F) Take any other action necessary to 2804.20(e)(1) provided that in deciding
section 2801.35.B.2.(1), provides that fully evaluate and decide whether to to issue a right-of-way grant, BLM may
most ‘‘low impact’’ right-of-way approve or deny your application. modify a proposed use or change the
applications needing a categorical This final rule moves BLM’s route or location. This provision is in
exclusion or EA should be processed in notification responsibilities from previous section 2802.4(f) and is
30 days, and requires BLM to notify an proposed section 2804.20(c) to the consistent with section 504(c) of
applicant in writing if processing would ‘‘Conditions’’ column in the chart in FLPMA and the discretionary nature of
take more than 60 days. Proposed final section 2804.25(c). We also moved a right-of-way grant. Final section
section 2804.20(c) identified very proposed section 2804.20(e) to final 2805.10(a)(1) contains a provision
similar customer service standards for section 2805.10 because these giving BLM discretion to modify a
application processing times. However, provisions are part of BLM’s decision proposed right-of-way use or change its
the current standard has caused concerning the content and terms and route or location. NEPA and
confusion for some of our applicants, as conditions in a grant. implementing regulations at 40 CFR
well as BLM employees, because the A few commenters suggested that the 1500–1508 require an evaluation of
notification deadline is twice as long as regulations require the applicant to alternatives to proposed actions. These
the processing deadline. A more logical provide the location and extent of alternatives must be reasonable and
standard would have the notification designated or existing corridors that are capable of meeting the purpose and
deadline prior to the processing proposed for use. This information may need of the proposed project. We will
deadline, if the processing deadline can be important in determining the NEPA follow that standard when processing
not be met. This final rule sets the classification for the proposal and applications that may need
customer service standard for subsequently the processing and modifications to the proposed use,
processing a completed Category 1 monitoring costs for the project. The route, or location.
through 4 application at 60 calendar commenters said that they understood Several commenters objected to the
days. However, if BLM knows that if they use an existing corridor or requirement in proposed section
beforehand that this standard can not be right-of-way they would not be required 2804.20(e)(2) for a plan of development.
met, then BLM will notify an applicant to perform an EIS, but only an EA. The commenters said the plan would
(prior to the 30th calendar day) if we Under section 503 of FLPMA, BLM serve no purpose other than to ‘‘create
expect the processing time to take identifies existing corridors and another document that is only for the
longer than 60 days. The 60 calendar designates new corridors. We do this Federal government.’’ Several
day processing standard for Categories 1 through cooperation with industry and commenters said that requiring plans of
through 4 does not mean that BLM other interested parties. Final sections development is new to oil and gas and
intends to take that long to process all 2802.10(b) and 2802.11 contain is not cost effective. The commenters
applications in these categories. Actual information on right-of-way corridors. It said that they only fill a file in a BLM
processing times will vary among is not incumbent on an applicant to office and that independents do not
categories. For example, we will identify or otherwise supply corridor have the staff to create a document
generally process Category 1 actions in information in a right-of-way whose only purpose is to fill a file for
significantly less time than 60 days. application. The preapplication meeting BLM. Proposed section 2804.20(b)
This section also explains that before identified in final section 2804.10(a) provided that BLM may require an
BLM will issue a grant, we will: provides the opportunity to discuss applicant to submit additional

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information, including a plan of 30th calendar day after filing a complete the public interest to do so (as opposed
development, ‘‘necessary to review the application BLM will notify you in to the applicant, or its contractor,
application.’’ The final rule at section writing of this fact including an estimate conducting that activity). We agree with
2804.25(b) does not change this of when we will complete processing the commenter that BLM retains the
provision. Section 501(b)(1) of FLPMA your application. authority to prepare NEPA-related
is the authority for BLM to require One commenter said that the final documents. We note too BLM’s
information necessary to determine regulations should require the potential authority to approve any NEPA-related
whether BLM should issue a grant and grantee to submit an initial assessment documents prepared by the applicant or
the terms and conditions which BLM of the environmental conditions of the a third party. In final section 2804.19(c)
should include. Section 504(d) of land being proposed for use as a right- we clearly state that BLM retains the
FLPMA requires a plan of construction, of-way. The commenter said that such option to prepare any environmental
operation, and rehabilitation for assessment was necessary to evaluate document related to a Category 6
proposed rights-of-way uses that may the impact of the activity on the land application and that if BLM allows the
have a significant impact on the and to allow BLM to complete its applicant to prepare these documents,
environment. It is important to note that obligations under NEPA, 42 U.S.C. 4321 they must be prepared to BLM
a plan of development is not a universal et seq., and that this assessment will standards. BLM will make the final
requirement. We will require one when also allow the Fish and Wildlife Service, determinations and conclusions arising
necessary to fully describe the proposed and public and private applicants, to from this work. In final section
use. comply with the Endangered Species 2804.25(d), we state that before issuing
Several commenters said that there Act, 16 U.S.C. 1531 et seq., and the a grant, BLM will complete a NEPA
should be mandatory approval times for Migratory Bird Treaty Act, 16 U.S.C. 701 analysis for the application or approve
each category. They also said that we et seq. The commenter also said that a NEPA analysis previously completed
should amend the proposed rule to BLM should require the potential for the application, as required by 40
require that if BLM does not approve a grantee to provide an environmental CFR parts 1500 through 1508.
grant within an agreed upon time, then assessment as part of the right-of-way Several commenters asked that BLM
the grant is automatically approved at application and make such assessment provide mandatory approval times for
the expiration of that time, whether or available for public comment. We did each category, including proposed
not BLM has finished processing the not amend this section as the Category IV (final Category 6). BLM sees
application. Several commenters also commenter requested. the customer service standards in final
said that the final rule should establish NEPA and its implementing section 2804.25(c) as reasonable goals,
an agreed upon mandatory approval regulations require assessments of and expects to meet them in most cases.
time for Category IV applications. The environmental conditions and impacts. However, in some cases, other agency
previous rule contained no standards for BLM’s obligations under the authorities consultations or other actions may
application processing times. the commenters cited are already result in extended processing times
As stated above, it has been BLM’s covered in other parts of BLM’s beyond the standards BLM has
policy to process ‘‘low impact’’ right-of- regulations. Repeating these existing identified. Therefore, we believe that
way applications needing a categorical requirements in this right-of-way rule is mandatory processing and approval
exclusion or EA in 30 days, and to unnecessary. A universal requirement times set by regulation are not
notify an applicant in writing if that all applicants provide an initial appropriate. We did not include them in
processing would take more than 60 environmental assessment or other the final rule.
days. Proposed section 2804.20(c) environmental documentation was not a One commenter said that stating a 30
identified very similar customer service part of the previous regulation, was not working day processing time for
standards for application processing proposed, and does not appear in this applications may be unrealistic because
times. Paragraph (c) of final section final rule. Due to the wide range and of cuts in personnel and other resources.
2804.25 contains changed customer scope of proposed right-of-way uses, Final section 2804.25(c) establishes a
service standards for application from very minor actions to major customer service standard of 60
processing times. BLM made these projects, such a requirement is not calendar days for Processing Category 1
customer service standards flexible practical. However, applicants may through 4 applications. Proposed
because there are a variety of factors that continue to volunteer such information section 2804.20(c) included a 30
can influence processing time. to facilitate the processing of an working day processing period. Because
Requiring that BLM approve an application. Or, under final sections a 60 calendar day processing period is
application within a regulatory 2804.12(c) and 2804.25(b), BLM may much more realistic and is consistent
timeframe or it would be approved by require an applicant to provide this type with the Forest Service’s customer
default would remove BLM’s discretion of information if BLM determines it is service standard the final rule sets a
in granting a right-of-way and would be necessary to process an application. We customer service standard of 60 days. If
inconsistent with the provisions in disagree with the commenter that an we require more than 60 calendar days
FLPMA for management of the public applicant should be required to provide to process your Category 1 through 4
lands. Therefore, we did not change the such preliminary assessment. Neither application, we will provide you written
rule. CEQ regulations, NEPA, nor the other notice prior to the 30th calendar day.
One commenter suggested that as statutes cited contain such Several commenters said that in
costs rise, the services BLM provides requirements. proposed section 2804.20, BLM should
with the accompanying fee increases One commenter recommended that change the ‘‘60 working day’’ response
should get better. Final section 2804.25 BLM should clearly state that the agency time to ‘‘30 calendar days.’’ The
establishes a customer service standard retains the authority to conduct the proposed rule identified a 30 working
which states that BLM will attempt to environmental analysis that is day processing time for the ‘‘minor’’
process your completed application associated with processing a right-of- categories, but included a provision for
within 60 calendar days of receiving it. way grant application, at the applicant’s notification to an applicant if the
If processing is expected to take longer expense, in those rare circumstances processing time were to take more than
than 60 calendar days, then prior to the when BLM determines that it may be in 60 working days. In this final section

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2804.25(c) we set the processing time of minor editorial changes, this section in processing your application
customer service standard as 60 is the same as proposed section 2804.21. associated with a FERC licensing or
calendar days for Categories 1 through Several commenters said that the relicensing project, other than those
4, a change consistent with the regulations should state whether described in section 2801.6(b)(7) of this
provision to notify an applicant if the applicants have the right of appeal if part. BLM also requires reimbursement
processing time will be more than 60 BLM denies their applications and for processing a right-of-way grant
days in those categories. We did not should require BLM to indicate in application associated with a FERC
make the change the commenter writing reasons for denying an project licensed before October 24,
suggested since 30 calendar days is not application. We agree. Under final 1992, that involves the use of additional
enough time to thoroughly review and section 2804.26(b) you may appeal a public lands outside the original area
process Category 1 through 4 BLM decision denying an application. reserved under section 24 of the FPA. In
applications. In the final rule we As a matter of policy, BLM always determining what you owe, BLM will
lengthened the processing time from the provides written justification for use the processing categories in section
proposed rule’s 30 working days to the denying right-of-way applications. 2804.14 of this part. FERC will address
final rule’s 60 calendar days to reflect a other costs it incurs in processing your
Section 2804.27 What Fees Do I Owe if
more realistic time for processing MLA license or relicense.
BLM Denies My application or if I This section is different from
grant applications. Withdraw My Application?
Several commenters said that public proposed section 2804.24. Section 2401
hearings are not necessary for right-of- This section explains that if BLM of the Energy Policy Act of 1992 (Pub.
way applications affiliated with oil and denies your application or if you L. 102–486) amended portions of
gas field operations and that hearings withdraw your application you owe the section 501 of FLPMA regarding Federal
would cause interminable delays. The processing fee, unless you have a rights-of-way associated with
previous rule at section 2802.4(e), Category 5 or 6 application. If you have hydropower projects licensed by FERC.
proposed section 2804.20(d)(5), and a Category 5 or 6 application that: The 1992 Act amended section 501(a) to
(A) BLM denied, you are liable for all authorize the Secretary to issue rights-
final section 2804.25(d)(5) all make it
reasonable costs the United States of-way with respect to the public lands,
clear that BLM will hold public
incurred processing it. Consistent with including ‘‘public lands, as defined in
meetings in connection with a right-of-
existing policy and previous regulations section 103(e) of [FLPMA], which are
way application only if sufficient public
(see previous section 2808.3–3), the reserved from entry pursuant to section
interest exists to warrant their time and
money you have not paid is due within 24 of the Federal Power Act (16 U.S.C.
expense. Depending on how
30 calendar days after you receive a 818).’’ BLM issues rights-of-way under
applications affiliated with oil and gas
notice of payment; or Title V of FLPMA for public lands
field development are handled, public (B) You have withdrawn before BLM
meetings may or may not be necessary. withdrawn and reserved under the
issues your grant, you are liable for all Federal Power Act. The Energy Policy
For example, there may be in place a reasonable processing costs the United
programmatic NEPA document that Act also amended section 501 of
States has incurred up to the time you FLPMA by adding a new paragraph (d),
includes field development activities, withdraw the application and for the
and appropriate levels of public review which provides that no right-of-way
reasonable costs of terminating your authorization is required for continued
have already been conducted. In such a application. Any money you paid that is
case, public meetings may not be operation on FPA-reserved lands of a
not used to cover costs the United States project that did not receive a BLM right-
necessary. incurred as a result of your application of-way prior to October 24, 1992. We
Section 2804.26 Under What will be refunded to you. inadvertently omitted regulations to
Circumstances May BLM Deny My In the final rule we replaced ‘‘BLM’’ implement these provisions from
Application? with ‘‘the United States,’’ where we talk proposed section 2804.24. Therefore, we
about the government incurring costs. revised final section 2804.28 to be
This section explains that BLM may This is because BLM may not be the
deny your application if: consistent with the statutory changes.
only Federal agency that incurs costs in
(A) The proposed use is inconsistent processing your application. This is Section 2804.29 What Activities May I
with the purpose for which BLM consistent with existing policy and Conduct on the Lands Covered by the
manages the lands; section 504(g) of FLPMA. We also added Proposed Right-of-Way While BLM Is
(B) The proposed use would not be in a sentence explaining that any money Processing My Application?
the public interest; you paid that is not used to cover costs This section explains that you, or any
(C) You are not qualified to hold a the United States incurred as a result of member of the public, may conduct
grant; your application will be refunded to casual use activities on the BLM lands
(D) Issuing the grant would be you. We added this sentence to explain covered by your application. For
inconsistent with the Act, other laws, or existing policy. With the exception of activities that are not casual use, you
these or other regulations; this change and editorial changes, the must get prior BLM approval. ‘‘Casual
(E) You do not have or cannot substance of this section is the same as use’’ is defined in section 2801.5 of this
demonstrate the technical or financial the proposed section 2804.22. final rule. With the exception of
capability to construct the project or editorial changes, the substance of this
operate facilities within the right-of- Section 2804.28 What Processing Fees
Must I Pay for a BLM Grant Application section is the same as proposed section
way; or 2804.25.
(F) You do not adequately comply Associated With Federal Energy
with a deficiency notice or with any Regulatory Commission (FERC) Licenses Subpart 2805—Terms and Conditions of
BLM requests for additional information or Relicense Applications To Which Grants
needed to process the application. Part I of the Federal Power Act (FPA) This subpart contains information and
You may appeal BLM’s decision to Applies? policies about:
deny your application under section This section requires that you pay (A) The terms and conditions of
2801.10 of this part. With the exception BLM the costs the United States incurs grants;

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(B) When a grant is effective; the lands traversed by the right-of-way processing your application, BLM will
(C) The rights that grants convey and or adjacent thereto.’’ The regulatory examine your proposed action, and
that the United States retains; and language implementing that provision of consider all reasonable alternatives to
(D) Information about monitoring FLPMA was in the proposed rule at accomplish your purpose, including the
costs. section 2804.20(e)(1), and is in final no action alternative. We develop
section 2805.10(a)(1). alternatives in consultation with the
Section 2805.10 How Will I Know
applicant and potentially affected
Whether BLM Has Approved or Denied Section 2805.11 What Does a Grant
parties. If BLM were to select an
My Application? Contain?
alternative that did not satisfy you or
This section contains some new The grant states what your rights are one that contained conditions or
information and explains that BLM will on the lands subject to the grant and stipulations that were unsatisfactory to
send you a written response to your describes what lands you may use or you, you may challenge those
application. If we do not deny your occupy. These lands may or may not conditions by appealing BLM’s decision
application, we will include an correspond to the lands in your to the IBLA under section 2801.10 of
unsigned right-of-way grant for you to application. This section lists the factors this part.
review, sign, and return that: BLM considers when determining
(A) Will include any terms, which lands to include in the grant. Section 2805.12 What Terms and
conditions, and stipulations that BLM This section contains the same four Conditions Must I Comply With?
determines to be in the public interest. provisions as those in proposed section This section explains that by
This includes modifying your proposed 2805.10(a) and explains that your grant accepting a grant, you agree to comply
use or changing the route or location of will state the length of time that you are with and be bound by the terms and
the facilities; authorized to use the right-of-way and conditions set forth in this section. This
(B) May prevent your use of the right- lists the factors BLM will consider in section requires that during
of-way until you have an approved Plan establishing the term of the grant. construction, operation, maintenance,
of Development and BLM has issued a In the final rule we added a provision and termination of the project you must:
Notice to Proceed; and stating that BLM will limit the grant to (A) To the extent practicable, comply
(C) Will impose a specific term for the those lands on which we determine with all existing and subsequently
grant and may include provisions for operations will not result in enacted, issued, or amended Federal
periodic review of the grant and its unnecessary or undue degradation. We laws and regulations and state laws and
terms and conditions. added this provision because FLPMA regulations applicable to the authorized
These provisions were part of directs BLM, in managing the public use. We made minor changes to this
previous regulations. lands, to take any action necessary to paragraph and added the phrase ‘‘To the
Under this section, if you agree with prevent unnecessary or undue extent practicable,’’ which was
the terms and conditions of the degradation of the lands (see 43 U.S.C. inadvertently omitted from proposed
unsigned grant, you should sign and 1732(b)). We believe that in order to section 2805.10. The phrase has been in
return it to BLM with any monitoring comply with FLPMA’s mandate, it is the Department’s regulations since 1980
fee payment that may still be due for the necessary to take into consideration the and is set forth here to qualify a holder’s
application. If the regulations in this unnecessary or undue degradation compliance with Federal and state laws
part, including section 2804.26, remain standard when determining which lands and regulations applicable to the
satisfied, BLM will then sign the grant to include in a right-of-way grant. authorized use. Practicability is
and return it to you with a decision Section 504(a)(4) of FLPMA sets forth important because a right-of-way may
letter. similar, though not identical, language cross through multiple jurisdictions,
If you do not agree with any of the (see 43 U.S.C. 1764(a)(4)). and strict compliance with the laws and
terms and conditions contained in the We added a provision to this section regulations of each may be impractical
grant, you may appeal BLM’s decision stating that the time necessary to and inefficient. The phrase will be
to IBLA under section 2801.10 of this accomplish the purpose of the grant is interpreted as in years past. This section
part. a relevant factor in fixing the duration also makes clear that a holder must
If BLM denies your application, we of the grant. We inadvertently omitted comply with any changes to applicable
will send you a written decision: this provision from the proposed rule. law or regulation that occur during the
(A) Stating the reasons for the denial; This provision, which was in previous term of the right-of-way grant. This is
(B) Identifying any processing costs section 2801.1–1(h), is consistent with consistent with long-standing BLM
you must pay; and section 504(b) of FLPMA and is policy and previous section 2801.2;
(C) Notifying you of your right to necessary for us in determining the (B) Rebuild and repair roads, fences,
appeal the decision. appropriate length of the term of a grant. and established trails destroyed or
These provisions are consistent with In the final rule we also added a damaged by the project;
existing policy and previous regulations provision to this section stating that all (C) Build and maintain suitable
(see previous section 2808.3–3). The grants, except those issued for a term of crossings for existing roads and
substance of this section is the same as less than one year and those issued in significant trails that intersect the
proposed section 2804.19(e). perpetuity, will expire on December 31 project;
Several commenters said that the of the final year of the grant. The reason (D) Do everything reasonable to
language allowing BLM to include in a we added this provision is so that the prevent and suppress fires on or in the
grant any terms or conditions that BLM expiration date of a grant will coincide immediate vicinity of the right-of-way
determines are in the public interest is with the calendar year rental term. area;
‘‘gratuitous.’’ We disagree. Section Several commenters stated that (E) Not discriminate against any
505(b) of FLPMA provides that a right- granting an ‘‘easement’’ on lands that do employee or applicant for employment
of-way grant contain such terms and not correspond to those in the during any phase of the project because
conditions as the Secretary deems application is unacceptable, since doing of race, creed, color, sex, or national
necessary to, among other things, so may make the grant ‘‘unsatisfactory origin. You must also require
‘‘otherwise protect the public interest in to accomplish the desired project.’’ In subcontractors to not discriminate;

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(F) Pay monitoring fees and rent that may occur as a result of operations (P) Comply with all other stipulations
described in section 2805.16 of this on a FLPMA right-of-way; that BLM may require.
subpart and subpart 2806 of this part; (K) Not dispose of or store hazardous Except for the changes listed above,
(G) If BLM requires, obtain, and/or materials on your right-of-way, except and minor editorial changes, this
certify that you have obtained, a surety as provided by the terms, conditions, section contains provisions
bond or other acceptable security to and stipulations of your grant. Any substantially the same as those in
cover liabilities and obligations listed in storage of hazardous waste on site must proposed section 2805.10(c).
the regulations. BLM may require a be in compliance with applicable Several commenters said that the final
bond, an increase or decrease in the Federal and state law; rule should make it clear that under
value of an existing bond, or other (L) Certify your compliance with all proposed section 2805.10(c)(1) (final
acceptable security at any time during requirements of the Emergency Planning section 2805.12(a)), BLM should not
the term of the grant; and Community Right-to-Know Act of require applicants to comply with state
(H) Assume full liability if third 1986, 42 U.S.C. 11001 et seq. (EPCRA), requirements concerning radio
parties are injured or damages occur to when you receive, assign, renew, frequency (RF) emissions. They said
property on or near the right-of-way (see amend, or terminate your grant. Unless that would contravene section
section 2807.12); provided otherwise, your signature on 704(a)(7)(B)(4) of the
an application is certification that you Telecommunications Act of 1996 which
(I) Comply with project-specific
have complied with these requirements. prohibits state and local governments
terms, conditions, and stipulations,
This provision is consistent with from regulating directly or indirectly
including those listed in the section.
proposed section 2805.10(c)(11). We ‘‘the placement, construction, and
This paragraph contains editorial
added ‘‘amend’’ to the list of events modification of personal wireless
changes to make it easier to understand.
when you must certify that you are facilities on the basis of the
BLM added the term ‘‘and stipulations’’
complying with EPCRA. We added it to environmental effects of radio frequency
to the first sentence of paragraph (i) to
address situations where a change in emissions to the extent that such
make it clear that a grant may contain
your use would require a grant facilities comply with the [Federal
standard terms and conditions, and also
amendment. We deleted the Communications] Commission
stipulations that address site-specific requirements of annual certification due regulations concerning such emissions.’’
conditions. The final rule lists seven to commenter’s concerns. Please see the This is not the forum to decide the
types of requirements that BLM discussion of comments that follows for merits of the commenters’ statement.
typically adds to grants in the form of an explanation of why we eliminated The final rule makes clear that a holder
site-specific terms, conditions, or the annual certification; must comply to the extent practicable
stipulations. Paragraph (i) is not new to (M) Control and remove any release or with applicable Federal and state law
our regulations (see previous section discharge of hazardous materials on or and regulations. Statutes and case law
2801.2(b)). Paragraph (i)(4) of this near the right-of-way arising in addressing the issue of pre-emption will
section uses different terminology than connection with your use and determine the question posed by the
that in the proposed rule. In the final occupancy of the right-of-way, whether commenters.
rule we replaced the term ‘‘subsistence or not the grant authorizes release or Several commenters said that
purposes’’ with the term ‘‘subsistence discharge. You must also remediate and proposed section 2805.10(c)(3) (final
uses’’ since that is the term used in the restore lands and resources affected by section 2805.12(d)) makes it sound like
appropriate statute (see 16 U.S.C. 3111 the release or discharge to BLM’s every right-of-way holder must have a
et seq.). We also added a new paragraph satisfaction and to the satisfaction of fire department. They also said that the
(i)(6) to this section requiring you to any other Federal, state, tribal, or local requirement is new and could be very
comply with state standards for public agency having jurisdiction over the costly. BLM disagrees. This provision is
health and safety, environmental land, resource, or hazardous material. in previous regulations at section
protection, and siting, constructing, We added ‘‘tribal’’ to this paragraph 2801.2(a)(4) and has been BLM policy
operating, and maintaining any facilities because a tribe could have jurisdiction for many years. BLM has, on rare
and improvements on the right-of-way over land near the right-of-way; occasions, enforced this provision
when state standards are more stringent (N) Comply with all liability and when, for example, during construction
than Federal standards. This provision indemnification provisions and activities, the holder’s or holder’s
is authorized by section 505(a) of stipulations in the grant; contractor’s equipment was used for
FLPMA and is in previous regulations at (O) As BLM directs, provide diagrams immediate fire suppression activities on
section 2801.2(b)(6). We inadvertently or maps showing the location of any a fire caused by actions of the holder.
omitted it from the proposed rule; constructed facility. This paragraph is More importantly, this condition
(J) Immediately notify all Federal, new to the final rule. This provision requires holders to maintain their rights-
state, tribal, and local agencies of any allows BLM to require you to file an as- of-way so as not to create a fire hazard.
release or discharge of hazardous built survey or diagram of the right-of- BLM expects holders to do only what is
material reportable to such entity under way facility. Frequently, during the reasonable to prevent and suppress fires
applicable law. You must also notify construction of a project, BLM approves in the immediate vicinity of a right-of-
BLM at the same time, and send BLM or even requires changes from the way. As a practical matter, BLM will not
a copy of any written notification you original design. These changes may not allow unauthorized equipment or
prepared. The proposed rule did not be incorporated into the design untrained personnel to work on any
include ‘‘tribal’’ in the list of drawings or surveys. BLM added this wildland fire.
jurisdictions that you must notify in requirement so that if there are changes Several commenters said that it is
case of a hazardous material spill. BLM to a right-of-way facility during inappropriate to include provisions
added the term ‘‘tribal’’ because Federal construction, we will have the most up- relating to discrimination in these
lands are frequently intermingled with to-date design drawings and surveys for regulations as there are already laws
tribal lands for many large linear right- our records. This ongoing policy is relating to discrimination and including
of-way projects and tribes should be consistent with previous section 2802.3; it here is duplicative. BLM disagrees.
notified of any hazardous material spill and This provision is in previous regulations

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at section 2801.2(a)(2) and is carried Another commenter believed that A few commenters objected to
forward into the final rule. there was no justification for automatic proposed section 2805.10(c)(10), which
BLM received many comments increases in a bond. Under this final prohibits a grant holder from storing
regarding bonding. Several commenters rule there is no automatic increase in hazardous materials on the grant for
said that we should allow for bonding the bond amount. The final rule allows more than 90 days, less if required by
coverage to include statewide or BLM to increase or decrease the amount law. These commenters stated that
nationwide oil and gas bonds. We of an existing bond at any time during crude oil would be stored on a lease for
disagree. Statewide and nationwide oil the term of a grant if changing the life of a producing oil well, and
and gas bonds are not an acceptable conditions warrant it. BLM’s experience other chemicals may be stored for longer
security for MLA or FLPMA right-of- in monitoring grants indicates that there than 90 days. The commenters said
way grants. Oil and gas leases and right- are occasions when conditions on a BLM’s proposed rule goes beyond the
of-way grants are separate instruments, grant change sufficiently to require an agency’s jurisdiction and duplicates
with different terms, conditions, and increase or decrease in the face amount other requirements. BLM deleted from
liabilities, and authorize different of the bond. For example, if during this final rule the prohibition for on-site
activities in different locations. An oil construction, BLM discovers conditions storage of hazardous materials beyond
and gas lease bond covers only those such as unstable slopes or highly 90 days. Final section 2805.12(k)
activities on the lease; a right-of-way erosive conditions that we did not prohibits any storage or disposal of
bond covers those activities off the identify during application processing, hazardous materials that is not provided
leased lands and on the grant. Generally BLM could increase the bond amount for by the terms, conditions, or
speaking, a lessee would not need a during the reclamation and restoration stipulations of the grant. This means
right-of-way to conduct activities or to phase to take into consideration the that you may store or dispose of
construct or to maintain lease-related potential additional liability that these hazardous materials on the right-of-way,
structures, including roads, on an oil conditions may cause. Likewise, BLM only if the grant specifically authorizes
and gas lease. Lessees would need right- may reduce bond amounts when you that storage or disposal. In approving a
of-way grants for those activities and satisfactorily complete components of a grant, BLM may place restrictions on the
structures off the lease, such as roads project or there are other changes in amount of hazardous materials stored or
connecting drill pads when the roads go conditions that lower the potential disposed of, the length of the time
off the lease or to connect leases. For liability of right-of-way operations. during which such material may be
these reasons, BLM separately bonds oil Several commenters objected to the stored or disposed of, and the manner
and gas leases and right-of-way grants. requirement in proposed section in which such storage or disposal may
Another commenter asked BLM to 2805.10(c)(9) that a grant holder notify take place, among other conditions. Any
authorities of any actual or threatened storage of hazardous waste on site must
limit the amount of the bond. We
release or discharge of hazardous be in compliance with applicable
assume the commenter means we
materials. Several commenters Federal and state law.
should only require the minimum Several commenters said that there is
amount in a bond to recover any losses suggested that we replace the phrase
no rationale for requiring an annual
or damages resulting from construction ‘‘actual or threatened’’ with
report for each grant on EPCRA and said
or operation of a right-of-way. BLM ‘‘reportable.’’ In response to this
that proposed section 2805.10(c)(11)
calculates what is needed to recover comment, we reworded the final rule at defeats the purpose of streamlining and
possible losses, damages, or injuries section 2805.12(j) by removing the creates even more burden on industry
associated with a right-of-way on a case- phrase ‘‘actual or threatened’’ and and applicants. Commenters also said
by-case basis. Bonding continues to be limiting notification requirements to that right-of-way grantees must already
part of BLM standard operating releases or discharges reportable to the file this under title III of the Superfund
procedures. Previous section 2803.1–4 named authorities under applicable law. Amendments and Reauthorization Act.
also required bonding. Several commenters said that In the final rule we removed the
Proposed section 2805.10(c)(6) and proposed section 2805.10(c)(9) is too requirement for an annual statement
final section 2805.12(g) add to our broad since it requires reporting of from each holder, but we expect grant
existing regulations by specifically releases, no matter how small, whereas holders to notify BLM, as appropriate,
requiring that bonding cover releases or CERCLA requires notice of only should reporting conditions change on
discharges of hazardous materials and reportable quantities of hazardous their right-of-way, even if there is not an
by allowing BLM to adjust bonding substances. EPA regulations at 40 CFR assignment, renewal, amendment, or
limits over the life of the grant to meet 302.4 establish a specific threshold termination action. The purpose of this
changing conditions. Previous section amount for each substance, commenters provision is to ensure that BLM has
2803.1–4 allowed BLM to require a noted. We reworded the final rule to current information about a holder’s use
bond to secure the obligations imposed make clear that the section only applies of certain substances on a right-of-way
by the grant and applicable laws and to reportable releases or discharges of by requiring certifications stating that a
regulations. We consider the release or hazardous materials. The final rule holder has complied with EPCRA,
discharge of hazardous materials to be makes clear that if reporting is required including emergency reporting, timely
an appropriate consideration when under applicable law, the grant holder submission of inventory forms,
setting a right-of-way bond. This must notify BLM at the same time that preparation of emergency response
regulation makes explicit what has up to it notifies appropriate authorities. Under plans, and reporting of toxic chemical
now been implicit in our regulations. the final rule, the holder must provide releases.
BLM continues to believe that bonding BLM a copy of any written notification Several commenters suggested that
of right-of-way grants is an effective way required under applicable law at the proposed paragraph 2805.10(c)(12) be
to protect the Federal Government from same time that the holder sends it to the amended to read ‘‘to a condition as near
liabilities associated with right-of-way appropriate regulatory authority. We as possible (or practical) to the area’s
operations, including any liability believe this notification is reasonable in original condition’’ rather than to the
associated with the use of hazardous light of FLPMA’s mandate that BLM satisfaction of the BLM. We did not
materials. protect public lands and resources. change the final rule as a result of this

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comment. In enforcing this final rule at costs incurred by the United States to (C) Monitoring fee determination, if
section 2805.12(m), BLM expects, in control or abate conditions, such as fire that determination was not previously
general, to require remediation and or oil spills, which threaten life, made.
restoration to pre-release conditions. property, or the environment. You must accept the provisions of the
However, BLM is responsible for Consistent with this strict liability, grant and signify that by signing the
administration of the public lands and holders have a corresponding duty to grant and sending it back to BLM with
is ultimately responsible for control and remove any release or any required rental payment and
determining what is acceptable discharge of hazardous materials, monitoring fee payment. When BLM
reclamation. BLM cannot rely solely on notwithstanding the conduct of a third receives the grant and all fees and signs
cleanup standards and requirements party causing such release or discharge. the grant, it is effective. You may also
imposed by other regulatory agencies, Thus, if a third party enters onto a right- ask BLM for the process to occur face-
because those standards and of-way and causes a release or discharge to-face, so that you may avoid delays
requirements vary widely among of hazardous materials resulting from caused by mailings. This section was
jurisdictions, and frequently only activities or facilities associated with proposed as section 2805.11.
require that significant public health the right-of-way area, even if the release
risks be abated. BLM has obligations Section 2805.14 What Rights Does a
or discharge is unauthorized by the Grant Convey?
under FLPMA and other laws to protect grant holder, the grant holder must
public lands and resources from control and remove the hazardous This section explains that the grant
degradation and must make the final materials. The grant holder can, as conveys only those rights it expressly
determination as to the adequacy of any provided under applicable state or contains and that BLM issues the grant
remediation or restoration. Federal law, seek contribution or subject to valid existing rights of others,
A number of commenters objected to reimbursement from any otherwise including the United States. The grant
the requirement in proposed section liable third party. Subrogation conveys to you the right to:
2805.10(c)(12) that a holder control and provisions appear at final section (A) Use the lands described in the
remove any release or discharge of 2807.12(b)(5) and previous section grant for authorized purposes;
hazardous materials that occurs on or 2803.1–5(c). (B) Allow other parties to use, and
near the right-of-way. One commenter charge for the use of, your facilities on
In providing in final section
said that a grantee’s duties should be the grant for authorized purposes. You
2805.12(m) that a holder’s remediation
limited to those releases and discharges may do this only if the grant specifically
and restoration obligations go beyond
for which a grantee is personally authorizes it or BLM authorizes or
the boundaries of the right-of-way, BLM
responsible because a grantee cannot requires it in writing;
intends that holders fully address
always restrict access to the right-of- (C) Allow others to use your right-of-
releases and discharges of hazardous
way. The commenter said that to control way as your agent;
materials attributable to the holder’s (D) Do minor trimming, pruning, and
any release on or near the right-of-way
operations. Thus a holder’s duty removing of vegetation to maintain the
is an impossible standard. For example,
extends to any such release or discharge right-of-way or facility;
a hunter might change the oil in his car
on the right-of-way itself and on any (E) Use common varieties of stone and
while waiting for the birds to come in,
nearby lands to which the release or soil which are necessarily removed
or an unknown person might dump a
discharge has migrated. This duty to when constructing part of the project,
load of old batteries and oil filters on a
address a release or discharge of without additional BLM authorization
right-of-way. The commenter asked how
hazardous materials off Federal lands or payment, in constructing other parts
an operator can be held responsible for
an occurrence near his right-of-way that does not enlarge the geographic scope of of the project within the authorized
he has no control over. We amended the a holder’s duty. Previous 43 CFR right-of-way; and
proposed rule because of these 2803.1–5(b) and final section 2807.12(b) (F) Assign the grant to another,
concerns. The final rule at section extend a holder’s strict liability to costs provided that you obtain BLM’s prior
2805.12(m) imposes an obligation on the incurred by the United States to control written approval.
holder to control and remove any or abate conditions, such as fire and oil With the exception of editorial
release or discharge of hazardous spills, which threaten lives, property, or changes, this final section contains the
materials arising in connection with the the environment, regardless of whether same requirements as proposed section
holder’s use and occupancy of the right- the threat occurs on areas that are under 2805.12.
of-way. That is, the grant holder is Federal jurisdiction. One commenter said that the second
responsible for controlling any release Section 2805.13 When Is a Grant sentence of proposed paragraph (b)
or discharge of such material on or near Effective? should be rewritten to read: ‘‘Otherwise,
the right-of-way, and attributable to the you may not let anyone else use your
holder’s operations. For example, the This section explains that a grant is facility unless BLM authorizes it.’’ The
holder will be responsible for effective after you and BLM sign it and commenter said that the phrase ‘‘or
remediating any such releases or that you must accept its terms and requires it in writing’’ should be
discharges, whether on the right-of-way conditions in writing and pay any stricken. BLM disagrees. Paragraph (b)
or nearby areas, caused or contributed to necessary rent and monitoring fees. In says that you may not allow other
by its construction, use, operation, or general, the process involves BLM parties to use your facility unless your
maintenance activities. sending you an unsigned right-of-way grant specifically authorizes it or BLM
BLM does not agree, however, that a grant and you returning the signed grant authorizes it or requires it in writing.
holder’s obligation to control and for BLM’s signature. The package we This means that when a third party
remove releases or discharges of send you will include a: wants to use your facility and your grant
hazardous materials should be limited (A) Grant, containing terms, does not specifically allow you to
to those releases or discharges caused by conditions, and site specific sublease your facility or approve the
the holder. Final section 2807.12(b)(2) stipulations; third party use, the third party must
and its predecessor 43 CFR 2803.1–5(b) (B) Determination of the estimated request and receive a separate right-of-
impose strict liability upon a holder for rental, if appropriate; and way grant from BLM for the use.

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If the added third party use is a appropriate industry standards, and in catastrophic fires. These plans address
change of use on your right-of-way, you accordance with an integrated vegetation treatment projects near large
must request an amendment to your vegetation management plan if one is transmission facilities to help prevent
grant so BLM can recognize the change warranted and has been developed as catastrophic fires from damaging
in use of the facility beyond what was part of the terms of the grant’’ to the end transmission facilities.
originally granted. An example of this is of the sentence. The commenter said Oil and gas industry commenters
a proposal for a third party phone cable that the practice of charging timber cost recommended that the following
to be installed on an existing electric for the removal of trees that jeopardize language should be incorporated as
power distribution line right-of-way. If facilities in an authorized right-of-way terms and conditions in lieu of BLM’s
the power line grant did not provide for is inconsistent with the partnership language:
the phone cable, we would require a established between BLM and the grant Lessees and operators have the
new right-of-way grant for the phone holder at the time of the grant regarding responsibility to see that their exploration,
company use and an amendment to the safety and fire prevention. Further, the development, production, and construction
power line right-of-way grant to commenter said that the regulations operations are conducted in a manner that
recognize the change in use of the should be clarified to exempt the cost of conforms with:
original grant. Experience has shown removing timber or other vegetation (a) Applicable Federal laws and regulations;
that there are circumstances where BLM immediately adjacent to a grant. The (b) State and local laws and regulations;
will require joint use of an authorized commenter said that holders should not (c) Terms and conditions of permits and
facility. For example, we may condition be charged for removing trees that may other approvals;
access road grants with requirements fall into transmission wires and result in (d) Notices to Lessees; and
(e) Written orders or other BLM instructions.
that you share maintenance fires, outages, or injuries to personnel
responsibilities with other authorized maintaining the right-of-way. BLM did not change the final rule as
road users. This is consistent with final BLM did not amend the final rule as a result of this comment. The language
section 2805.15(b), which allows BLM a result of these comments. However, suggested by the commenters is too
to require common use of your right-of- we will describe our trimming, pruning, broad to be useful for terms and
way for compatible uses. and removal practices in the terms and conditions in FLPMA and MLA right-of-
The same commenter opposed BLM conditions of the grant, and they will be way grants. We believe the terms and
requiring grant holders to allow joint- part of the grant’s plan of development, conditions in this final rule are more
use on power poles without full as necessary. We recognize the need for appropriate for both FLPMA and MLA
consent, a joint-use agreement with the utility companies to perform right-of-way grants than those listed by
second party, and full compliance with maintenance pruning, trimming, and the commenters.
the National Electrical Safety Code. clearing under aboveground electric
Section 2805.15 What Rights Does the
Paragraph (b) does not give BLM distribution and transmission lines for
United States Retain?
authority to authorize a third party to safety purposes. Minor pruning,
use a grant holder’s facility without the trimming, and clearing refers only to This section describes the rights that
holder’s permission, unless that grant maintenance activities after the right-of- the United States retains when it issues
specifically stated that the holder would way is constructed, not to removal of a right-of-way grant. The United States
provide space for additional users. The vegetation during initial construction. retains any rights the grant does not
paragraph limits the holder’s ability to Any time a holder plans to remove expressly convey to you, including the
lease or sublease its facility to another vegetation that is not authorized by the right to:
party without first obtaining BLM terms of the grant or that falls outside (A) Access the lands covered by the
approval. the boundary of the right-of-way, the grant at any time and enter any facility
Several commenters said that the final holder must submit to BLM a request for you construct on the right-of-way. BLM
rule should make clear whether BLM approval to perform those activities will give you reasonable notice before it
intends to preclude electric utilities prior to commencing the activity (see enters any facility on the right-of-way;
from charging the ‘‘just and reasonable section 504(f) of FLPMA). Although not (B) Require common use of your right-
rates’’ utilities are required to charge specifically mentioned in the proposal of-way, including subsurface and air
telecommunications entities who attach or this rule, the Materials Act of July 31, space, and authorize use of the right-of-
facilities to existing utility structures 1947, as amended (30 U.S.C. 601, 602), way for compatible uses. You may not
under the authority of the Pole requiring you to pay for the removal of charge for the use of the lands made
Attachments Act (47 U.S.C. 224). BLM merchantable timber or common subject to such additional right-of-way
believes the comments are outside the varieties of stone, applies to rights-of- grants. Proposed section 2805.13(b)
scope of these regulations. There is way issued under these regulations (see stated BLM could require common use
nothing in the final rule that affects the 43 CFR parts 3600 and 5400). Once you of the land in your right-of-way. BLM
rights of a holder to charge a reasonable construct on the right-of-way, you may has reworded the paragraph and added
rate to a telecommunications utility that perform minor trimming, pruning, and the phrase ‘‘including subsurface and
wants to attach facilities to existing clearing of lands covered by the grant to air space’’ to the final rule to make it
structures. maintain safety of right-of-way clear that BLM would also consider the
One commenter wanted a more operations. If you need to perform subsurface and associated air space,
thorough explanation of the minor additional work outside the boundary of including air waves, to be areas open to
trimming, pruning, and vegetation the right-of-way, BLM would require an common use. The interest granted in a
removal allowed to maintain a right-of- amended grant or new approval. We FLPMA (or MLA) right-of-way is, and
way facility because of the importance recommend that you plan and request always has been, a non-exclusive right
to insure safety and reliability on this well in advance of the anticipated (see section 503 of FLPMA). It does not
electric utility rights-of-way. The work schedule. convey to the holder any right to use the
commenter suggested that we amend Many utility companies are now land for purposes other than those
paragraph (d) by adding ‘‘for the cooperating with Federal agencies in stated in the grant;
prevention of fire, and promotion of preparing vegetative treatment plans on (C) Retain ownership of the resources
public health and safety, using a landscape basis to reduce the threat of of the land. You have no right to use

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these resources, except as noted in conditions on affected lands and to alternative proposal would establish
section 2805.14 of this subpart; protect the public interest. Section monitoring fees based on the number of
(D) Determine whether or not your 2805.12(a) of this final rule is consistent work hours required to monitor grants.
grant is renewable; and with this position. We have determined that there are
(E) Change the terms and conditions Our position is in harmony with enough instances where the processing
of your grant through changes in FLPMA. Section 504(e) of FLPMA gives times and monitoring times for a given
legislation or regulation or as otherwise the Secretary the authority to ‘‘issue application would not fall into the same
necessary to protect public health or regulations with respect to the terms category that separating the processing
safety or the environment. and conditions that will be included in and monitoring categories is warranted.
Except for the changes noted above, rights-of-way pursuant to section 505 of One commenter stated that BLM
and minor editorial changes, the this title,’’ and makes revised should continue to determine both the
requirements of this section are the regulations applicable to ‘‘every right-of- processing and the monitoring category
same as proposed section 2805.13. way granted or issued pursuant to this fees as one process because it would be
Several commenters said that BLM title and to any subsequent renewal more efficient. We disagree with the
should not be allowed access to right-of- thereof * * *’’ In addition, protection of commenter. BLM will determine the
way grant areas until its employees can public health or safety or the processing categories and monitoring
demonstrate adequate safety training environment is set forth at section 506 categories separately, based on hours, as
commensurate with the facility. BLM of FLPMA as a basis for the Secretary to described in the ‘‘revised category
did not amend the final rule to address abate and temporarily suspend a definitions’’ section of the preamble of
this comment, but agrees with the holder’s activities on the right-of-way, the proposed rule (64 FR 32109).
comment’s emphasis on safety. Should even prior to an administrative hearing. Determining processing and monitoring
activities on the lands in a right-of-way These two statutory provisions set costs separately provides a more
grant pose any kind of threat to any reasonable limits on our ability to accurate calculation of reasonable costs.
visitors of a site, whether during change terms and conditions. If BLM The hours to monitor a grant may vary
construction or operation of the facility, should add terms and conditions significantly from the hours BLM needs
the holder should provide adequate adversely affecting a holder, a right of to process the application. If there is any
safety training to all such visitors. This appeal to IBLA would lie under 43 CFR increase in staff time to make the
is not limited to BLM personnel, but to Part 4. determinations separately, we expect it
anyone visiting the site. It is the holder’s to be minimal.
responsibility to identify unsafe Section 2805.16 If I Hold a Grant, The final rule uses the total number
conditions and provide suitable What Monitoring Fees Must I Pay? of hours necessary to ensure compliance
training. Where appropriate, this will be The provisions in this section were with the terms, conditions, and
a term and condition of a grant. proposed in section 2805.14. In the final stipulations of a grant to determine the
Likewise, if any required safety rule we renumbered the monitoring category. Our rationale for eliminating
equipment is necessary to visit a right- categories and modeled them (and the the proposed criteria for setting the
of-way area, the holder should identify category fees) after the final numbering monitoring fee is the same as we
those needs and provide the appropriate and associated fees of the processing discussed at section 2804.14 of this
equipment. This is consistent with categories in final section 2804.14. We preamble for eliminating the proposed
existing policy. did this to make the final rule easier to criteria for processing fees.
A few commenters said that BLM understand, and to be able to recover For Categories 1 through 4, holders
should notify grant holders when others the necessary costs associated with pay monitoring fees in accordance with
request a grant using the same corridor monitoring a right-of-way grant. the chart, which will be adjusted
and should allow the current grant Under this section you must pay to annually. For Categories 5 and 6,
holder to make recommendations to BLM a fee for the reasonable costs the holders pay monitoring fees in
maintain the integrity of its facilities in Federal Government incurs in accordance with signed agreements for
the corridor. BLM agrees with the monitoring the following six activities: those categories (see section 2805.17(b)
comment but did not amend the final project construction, operation, and (c)).
rule. It is our continued policy to notify maintenance, termination, and BLM annually updates Category 1
all affected interests of new right-of-way protection and rehabilitation of the through 4 monitoring fees in the manner
proposals, especially existing right-of- public lands the grant covers. Category described at section 2804.14(c) of this
way holders, in situations where we 1 through 4 monitoring fees are one- part. BLM updates Category 5
require common use of a right-of-way time fees and are not refundable. BLM monitoring fees as specified in the
area. categorizes the monitoring fees based on Master Agreement. The monitoring cost
Several commenters said that it must the estimated number of work hours schedule is available from any BLM
be clear that both parties, BLM and the necessary to monitor your grant. office or on BLM’s National Home Page
holder, are bound by grant terms and In the proposed regulations at section on the Internet at http://www.blm.gov
conditions and BLM cannot later change 2805.14(a), we said that BLM would use and is published for calendar year 2005
or add conditions. BLM believes it the same category for monitoring as it in the final rule in a chart format.
necessary to include provisions in the did in establishing the processing fee In the final rule we added a chart
final rule that allow BLM to amend the category. Alternatively, we requested showing monitoring fee amounts for
terms and conditions of right-of-way public comment on whether to separate each category, similar to the processing
grants. Over the life of a grant, many processing fees from monitoring fees fee chart in section 2804.14(b). The
things change that affect management of (see 64 FR 32109). One commenter chart clearly describes the divisions
public lands. New laws are passed and thought that processing and monitoring between monitoring fee categories. We
new regulations are enacted that holders fees should remain linked. Another made this chart consistent with the
must comply with. Thus, if conditions commenter agreed that it is generally anticipated Forest Service rule for cost
warrant, BLM must be able to change, appropriate to associate monitoring recovery to minimize confusion for
add, or delete terms and conditions of costs with the size of the project, and to those right-of-way customers that do
a grant to comply with these changing set a rate schedule accordingly. BLM’s business with both agencies.

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The Forest Service recommended that agreement for those categories, which monitoring.’’ Two separate charges are
we revise the first sentence of proposed may include long-term monitoring authorized, and BLM is careful to avoid
section 2805.14(b) to read: ‘‘For throughout the life of the project. mixing the two. BLM typically only
Categories I through IV, there is a one- Several commenters thought that requests monitoring data for Category 6
time payment for all monitoring fees taking multiple trips to a right-of-way applications. In these cases, BLM will
based on a fee schedule available from was an integral part of the duties of land include the costs of reviewing
any BLM office.’’ BLM agrees that we stewardship and should not be charged monitoring data supplied by the
should clarify this. In the final rule we as part of monitoring fees. They were applicant in our determination of
added a sentence to section 2805.16 to concerned that BLM was proposing to monitoring costs.
make it clear that Category 1 through 4 require industry to pay for functions
monitoring fees are one-time fees and BLM currently covers. Under this final Section 2805.17 When Do I Pay
are not refundable. rule and previous regulations it is the Monitoring Fees?
One commenter thought that grant holder’s responsibility to This section explains that for:
categories for monitoring fees based on reimburse the Federal Government for (A) Monitoring Categories 1 through
the number of hours it takes to monitor monitoring grants. As stated above, 4, unless BLM otherwise directs, you
a grant was not an appropriate measure section 504(g) of FLPMA makes it clear must pay monitoring fees when you
because each case and each EA could that inspections and monitoring of submit to BLM your written acceptance
require different monitoring based on construction, operation, and termination of the terms and conditions of the grant;
the mitigation required for that case. of a facility are costs that the United (B) Monitoring Category 5, you must
BLM believes that by eliminating the States can require an applicant or holder pay the monitoring fees as specified in
link between processing and monitoring to reimburse. Most monitoring costs are the Master Agreement. BLM will not
fees that existed in previous regulations, incurred during construction and issue your grant until it receives the
we will be able to more accurately rehabilitation activities. In order to required payment;
estimate the hours necessary to monitor ensure a grant holder is complying with (C) Monitoring Category 6, you must
the grant. When we issue a grant, we the terms and conditions of the grant, it pay the monitoring fee as specified in
will have completed an EA or EIS that is likely that BLM will make multiple the financial plan of your cost recovery
will set out the required mitigation. trips to a right-of-way area during the agreement. If BLM has underestimated
Therefore, there should be enough construction and rehabilitation phase of the monitoring costs, we will notify you
information to support our estimate of the project for most types of right-of- of the shortfall. In addition, BLM may
the time required to monitor the project. way projects that we would not make if periodically estimate the costs of
One commenter thought that BLM there were no authorization in place. monitoring your use of the grant; and
should not charge for monitoring One commenter thought BLM should (D) Monitoring Categories 1–4 and 6,
because: prorate monitoring fees when the costs if you disagree with the category BLM
(A) The costs of monitoring right-of- incurred by the agency are spread over has determined for your grant, you may
way grants are paid for out of taxpayers’ two or more permit holders as would be appeal the decision under section
money; and the case with communication sites. The
(B) Monitoring is a fairly simple, 2801.10 of this part.
commenter thought there should be a
straightforward process. fixed schedule in cases where the Subpart 2806—Rents
BLM disagrees with the comment and monitoring activity involves a number
did not amend the final rule as a result The final subpart is organized
of different facilities managers/permit differently from the proposed rule in
of it. While monitoring can be a fairly holders at the same site. They said that
straightforward process, we believe the that it is divided into several sections as
BLM’s actual monitoring costs per follows:
costs to perform compliance inspections permit holder are likely to be lower
should not be paid for with taxpayers’ (A) General provisions, applicable to
because monitoring expenses are spread all grants;
money. Were it not for the existence of over a larger number of permit holders.
the right-of-way, there would not be the (B) Linear rights-of-way, applicable to
BLM disagrees and did not amend the
need to monitor. The holder of the grant linear grants only;
final rule as a result of this comment. As
should be responsible for these costs. (C) Communication site rights-of-way,
previously stated, most monitoring costs
Statutory authority supports our applicable to grants containing
are incurred during construction and
position. Section 504(g) of FLPMA gives telecommunications facilities; and
rehabilitation activities. Even in the case
BLM the authority to require right-of- (D) Other rights-of-way, applicable to
of communication sites where a number
way grant holders to reimburse the miscellaneous grants, such as those for
of facilities are located together, it is
United States for inspection and unlikely that initial construction or wind energy facilities.
monitoring of construction, operation, other phases of the project would take We also divided the final rule into the
and termination of right-of-way grants. place for multiple holders at the same several different areas by subject matter
Section 28 of the MLA, 30 U.S.C. 185(l), time. Therefore, prorating monitoring so that it is easier to read and follow.
provides similar authority. fees among various holders, even on a General Provisions
One commenter thought that communication site lease, is not
monitoring should be a one time event Section 2806.5 (Proposed) What
practical or appropriate.
to ensure compliance and not an annual Several commenters said that costs Definitions Do I Need To Know To
or continuing function. We amended the associated with BLM’s review of Understand These Regulations?
final rule by making it clear in the monitoring data collected by industry We moved most of the definitions
definition of monitoring (see section should be included in the base charge proposed in this section to the general
2801.5), that we monitor Categories 1 and rental for rights-of-way. We definitions section of this rule (see
through 4 from the time of construction disagree. Section 504(g) of FLPMA section 2801.5) and deleted others from
and until the holder completes makes a distinction between rent and the rule. As a result, we deleted this
rehabilitation activities and BLM those ‘‘reasonable administrative and section from the final rule. Please refer
approves them. For Categories 5 and 6, other costs incurred in processing an to the discussion of section 2801.5 for
monitoring will occur as defined in the application * * * and in inspection and responses to any comments and

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explanations of any changes to the appraisal reports for each right-of-way Appraisal Practice’’ published by the
definitions proposed in this section. because of the time and expense Appraisal Standards Board.
We deleted the definitions of required to prepare and review Several commenters said that the final
‘‘Reselling’’ and ‘‘Zone value’’ from the appraisal reports. The phrase is in regulations should make clear what
final rule. We deleted the definition of previous section 2803.1–2(a) and it is costs the rents are targeted toward
‘‘Reselling’’ because the term is not used only used once in these regulations in recovering and what value or rights the
in the final rule. We deleted the section 2806.10. payment of rents conveys. The rule does
definition of ‘‘Zone value’’ because it is Several commenters asked how BLM not authorize BLM to recover costs
only used in the Per Acre Rent Schedule establishes fair market value and how through rent collection. With one
(see final section 2806.20). However, the fair market value compares to the exception, rental payments go directly
rule continues to define the term appraised value. Several commenters into the U.S. Treasury and are not
‘‘Zone’’ (see final section 2801.5) and asked if the method for determining fair allocated to BLM. The one circumstance
the schedule makes it clear that rent is market value established in this section where BLM is allowed to keep rental
based on the zone where the linear was an accurate method. Another payments is for communication site
right-of-way is located and that rental commenter said that BLM should rights-of-way. In 1996 Congress passed
values change in each zone. establish in the regulations the process the 1996 Interior and Related Agencies
for determining fair market value. Appropriation Act, which allowed BLM
Section 2806.10 What Rent Must I Pay As previously explained, BLM uses to keep the first $2 million in annual
for My Grant? rent schedules to determine fair market communication site rent collections.
Paragraph (a) of this section explains value rent for some types of right-of-way BLM uses this money to manage
that before you receive a right-of-way grants. The rents in the schedules are communication site rights-of-way. We
grant you must pay in advance a rent based on a comparative market analysis did not change the final rule to address
that BLM established based on sound of rents for rights-of-way in the private this comment.
business management principles and as sector. Please see the preamble The same commenters said that it was
far as practical and feasible, using discussion in BLM’s 1987 rule at 52 FR unclear to what extent improvements on
comparable commercial practices. This 25811 for more information. We started rights-of-way, including the co-location
section makes clear that rent does not using a schedule system (in 1987 for the of fiber optic transmission facilities,
include processing or monitoring fees, linear schedule and in 1997 for the results in additional occupation of
but is in addition to those fees. Also, communication site schedule) in Federal lands. The commenters said that
BLM may exempt, waive, or reduce rent response to multiple appeals and legal it seemed reasonable to charge rent for
as provided in sections 2806.14 and challenges to our linear and the extent to which right-of-way
2806.15 of this final rule. communication site appraisals that we activities foreclose other activities, but
Paragraph (b) of this section explains used at the time to determine rent. We that it seemed unreasonable to charge
that if your grant was issued before believe that if BLM reverted to using grantees additional rent for
FLPMA, you may request an informal individual appraisals to determine rent, improvements on a line, such as adding
hearing with BLM before we increase rentals may be higher than under the telecommunication facilities, that have
your rent as, for example, a result of current schedule system, but the cost to no additional material impact on public
initially placing your grant on the rent the agency to prepare individual lands. We disagree with the comment
schedule at section 2806.20. appraisals would be more than the that it is not reasonable to charge rent
We amended the final rule to make amount of rent we could collect and for co-located facilities on a right-of-
clear that rent is separate from and in therefore would not be justified. BLM way. BLM establishes rent using
addition to processing or monitoring believes the schedules are customer schedules that reflect what many right-
fees to eliminate possible confusion for friendly, efficient to implement and use, of-way holders pay for comparable
applicants concerning fees that are and reflect fair market value for the use right-of-way uses on non-public lands.
associated with obtaining a right-of-way of the land. BLM issues a non-exclusive grant for
grant. This section was proposed as the This final rule does not change our right-of-way uses. The terms and
opening paragraph of proposed section existing policy, reflected in BLM conditions in BLM grants do not allow
2806.10 and with the exception of the regulations since 1987 (52 FR 25818, additional uses or users beyond what
changes mentioned above and editorial July 8, 1987; 52 FR 36576, Sept. 30, the grant specifies. Any co-location of
changes, it remains as proposed. 1987, as amended at 60 FR 57070, Nov. additional facilities by third parties
Some commenters asked that the final 13, 1995) for rent schedules for linear requires the party to obtain its own
rule define the term ‘‘sound business rent and since 1995 for communication separate grant (except in the case of a
management principles.’’ This term has site rents. We developed both the linear communication site lease which allows
appeared in BLM’s rental regulations for rent schedule and the communication third parties to act as customers and
over 15 years. When first introduced in site rent schedule based on analysis of tenants without a grant from BLM). The
1987, BLM described at length the market data and a great deal of public third party must pay rent unless the use
standards and assumptions that inform comment and involvement. qualifies for a rental reduction or is
this term (see 52 FR 25811–25818 (July We do not agree with the comment exempted from paying rent. A proposal
8, 1987). We did not define ‘‘sound that the process to determine fair market by a grant holder to co-locate new
business management principles’’ in the value should be established in the rule. facilities in an existing right-of-way
final rule. We believe it is sound BLM is required to follow recognized facility requires a grant amendment if
business management to determine rent standards in determining fair market there is a substantial deviation or
through a system of rent schedules. value. In determining fair market value change in use from the original grant.
Using rent schedules eliminates the we rely on the standards in the Amendments, therefore, usually result
need to prepare an individual appraisal ‘‘Uniform Appraisal Standards for in added rental for the holder, even
report for each of the estimated 3,500 Federal Land Acquisition’’ published by when the new use may not physically
grants and leases BLM issues each year. the Appraisal Institute in cooperation impact public lands. We interpret
It is not feasible or cost effective to with the Department of Justice and the section 504(g) of FLPMA to require the
prepare, review, and approve individual ‘‘Uniform Standards of Professional holder to pay the fair market value

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(FMV) of the use of the land, not simply This section also explains that after payment fee within 30 calendar days
for impacts to the land, as the the first rental payment, all rent is due after rent is due, BLM may collect other
commenter suggests (see 43 U.S.C. on January 1 of the first year of the administrative fees provided in BLM’s
1701(a)(9)). An example of this occurs succeeding rental period. We amended National Business Center Manual,
when additional communication the proposed provision of this section to Collections Reference Guide, 1998,
facilities are added to an existing make it more administratively efficient including fees chargeable under the
communication site building with no to pay and collect rent. This section is Debt Collection Improvement Act, 31
changes to the structure. In many cases, consistent with previous section U.S.C. 3701, and other statutes. This
right-of-way grants acquired in the 2803.1–2. Prior to the 1987 regulations, rule does not change already established
private market do not allow the holder BLM sent rental notices to many right- procedures under the Debt Collection
to add more facilities without first of-way holders prior to the grant’s Improvement Act which we follow
acquiring additional rights from the anniversary date and payment was due regarding all monetary debts owed.
private landowner at additional cost. each year on the anniversary date of the If BLM does not receive the rent, late
BLM believes it is reasonable for the grant. This was an ongoing payment fee, and any administrative
Federal Government to require rental administrative burden on BLM fees within 90 calendar days after the
payments when holders acquire personnel because they had to send rent is due, BLM may terminate your
additional rights from BLM to co-locate rental notices to holders throughout the grant under final section 2807.17. If
facilities. entire year on the anniversary date of BLM terminates your grant for this
A few commenters said that rents are each grant. In a BLM field office that reason, you may not remove any
far too low. They said that the public administers thousands of right-of-way structures, buildings, or equipment
will never receive FMV for rights-of-way grants, it made tracking payments and without BLM’s written permission. Any
unless BLM increases rents. This final sending rental notices a labor intensive rent due, late payment fees, and
rule does not change our current task each month. In 1987, BLM administrative fees remain a debt that
policies regarding payment of rent modified our right-of-way regulations you owe to the United States. Of course,
except that final section 2806.12 makes and required that all grants be converted holders may take corrective measures
adjustments to the cycle BLM will use to a calendar year billing cycle with rent within this 90-day period so the grant is
to send out rental notices. We believe due January 1 of each year (see 52 FR not terminated. Proposed section
that existing policy and these 25814). We also started sending 2806.13 stated that BLM may terminate
regulations provide payment of FMV for consolidated rental notices to the your grant when rent payment is
the use of public lands in accordance holders of multiple grants, instead of delinquent for 30 days after BLM sends
with section 504(g) of FLPMA (see the multiple notices. This process reduces you a payment notice.
preamble to the 1987 rule at 52 FR the number of rental notices, and If you pay the rent, late payment, and
25811). simplifies notifying holders of multiple any administrative fees after BLM
right-of-way grants. A rental notice is terminated the grant, the grant is not
Section 2806.11 How Will BLM Charge provided as a courtesy by BLM. Since automatically reinstated. You must file
Me Rent? all of BLM’s rental notification a new application with BLM. BLM will
Paragraph (a) of this section explains workload is completed at one time of consider the history of your failure to
that BLM will charge you rent beginning the year, we find fewer past due rental timely pay rent in deciding whether to
on the first day of the month following accounts. For these reasons, the final issue you a new grant.
the effective date of the grant through rule carries forward these procedures. BLM does not send bills for rent due
the last day of the month when the grant on a right-of-way grant. Instead, BLM
Section 2806.13 What Happens If I Pay sends grant holders a courtesy notice on
terminates. It also provides an example. the Rent Late?
This provision will make it simpler for December 1 for any rent that is due on
field offices to uniformly calculate rents. This section explains that if BLM does the following January 1. This notice is
Paragraph (b) of this section explains not receive your rent payment within 15 currently generated by our automated
that BLM will set or adjust payment calendar days after the rent is due lease management system. The system
periods to coincide with the calendar (January 15), BLM will charge you a late consolidates all amounts due for one
year by prorating rents based on 12 payment fee of $25.00 or 10 percent of holder and generates an itemized
months. the rent you owe, whichever is greater, statement for multiple grants. After the
We moved the substance of proposed not to exceed $500 per authorization. In first rental payment, rent is always due
section 2806.10(c) to final section the proposed rule we asked for your on January 1 of the first year of each
2806.23. Please see the discussion of comments on late payment assessments succeeding rental period for the term of
that section for changes to the rule. and cited 43 CFR 2920.8(a)(3) and 43 the grant, even if a courtesy notice does
Under final paragraph (c) of this CFR 4130.8–1(f) as examples. This final not reach the holder.
section, if you disagree with the rent provision is similar to existing In addition to the rent, late payment,
BLM charges, you may appeal the regulations at 43 CFR 4130.8–1(f) except and administrative fees authorized
decision to the IBLA. that it sets the cap on late payment under these regulations, BLM collects
With the exception of editorial assessments at $500, double the amount interest on outstanding debts owed the
changes and the changes noted above, in 43 CFR 4130.8–1(f). Under this rule, Federal Government (see 31 U.S.C.
this section is the same as proposed the assessment is for each authorization 3717). BLM currently collects interest
sections 2806.10(a), (b), and (e). so that a holder with multiple right-of- for late payment of rental fees and will
way grants would be assessed the late continue to do so after publication of
Section 2806.12 When Do I Pay Rent? payment fee for each right-of-way grant. this final rule.
This section explains that you must BLM’s rental notice is provided as a You may appeal any adverse action
pay the rent for the initial rental period courtesy. Failure to receive a courtesy BLM takes against your grant to the
before BLM issues you a grant. You notice will not excuse late payment of IBLA under section 2801.10 of this part.
must make all other rental payments for rent. We received several comments on late
linear rights-of-way according to section Under this section, if BLM does not payment assessments. Several
2806.23 of this subpart. receive your rent payment and late commenters supported this concept, as

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it is a standard industry practice to add believe a 30-day courtesy notice is tenants or customers, on the right-of-
penalties for late payments. One reasonable and provides adequate way will subject the holder to rent in
commenter said that the final rule notice. Also, payment of rent is a term accordance with sections 2806.30
should allow grant holders to rectify the and condition of a grant and this fact through 2806.44 of this subpart.
error within 90 days of a notice. Several provides additional notice at the outset The proposed rule specified that BLM
commenters said that due to the burden of the grant of a holder’s obligation to would charge rents to REA holders if
and cost of administering late payment pay rent. they operated their right-of-way as a
fees, they would recommend against Several commenters said the existing commercial communications company,
using them. In the final rule we adopted regulation’s requirements for late had tenants in their communication site,
a late payment fee. If you do not pay payment (i.e., grant termination and or provided communication services for
your rent, this fee is applied resubmittal requirements) are deterrent commercial purposes. We made the
automatically 15 calendar days after the enough for late payments and that if final rule consistent with the statute and
due date (e.g., if we do not receive your BLM decides that there should be a late specifically address communication site
payment by close of business January payment fee, the right-of-way industry facilities with subleasing provisions.
15, you will receive a notice assessing should be involved in setting the We modified the proposed rule to be
a late payment fee). We do not agree that guidelines. We disagree with this consistent with changes to the statutory
holders should be given 90 days to comment. In a 1995 report, the provisions dealing with the REA
rectify errors without assessing the late Department’s Inspector General found exemptions. In 1996, Congress enacted
payment fee and did not change the that it cost one Department of the Public Law 104–333, amending section
final rule as a result of this comment. It Interior agency approximately $34 to 504(g) of FLPMA to read: ‘‘Rights-of-
is common practice in landlord/tenant issue, process, and collect individual way shall be granted, issued, or
situations to charge a late payment fee bills. In light of this finding, the $25 or renewed, without rental fees, for electric
upon default of the payment terms, and 10 percent of the rent owed standard is or telephone facilities eligible for
we believe it is reasonable for the reasonable, is consistent with other financing pursuant to the Rural
Federal Government to do so. BLM regulations (e.g., 43 CFR 4130.8– Electrification Act of 1936, as amended,
One commenter said that it was 1(f)), and will apply to late payment of determined without regard to any
concerned that under the proposed rule, right-of-way rents as well. application requirement under that Act
there are situations where a new or any extensions from such facilities.’’
company could be assessed a penalty for Section 2806.14 Under What Congress made this change to exempt
a permit that was ‘‘not in the original Circumstances am I Exempt From from rent those rights-of-way for electric
assignment and was found at a later Paying Rent? or telephone facilities eligible for REA
date.’’ The commenter said that the cost This section explains that you do not financing, but not financed through
of the rent should rightly be assessed, have to pay rent for your use if: REA. Therefore, it is the eligibility of the
but the late penalty should not. We (A) BLM issues the grant under a facilities, rather than the eligibility of
agree with the commenter in part. statute which does not allow BLM to the owner or operator of the facilities,
BLM must approve all proposed charge rent; that is the focus of amended section
assignments in writing before they are (B) You are a Federal, state, or local 504(g). If electric or telephone facilities
effective. Prior to this approval, BLM government or its agent or within a right-of-way are financed by
must ensure that the holder is in instrumentality, unless you are: REA, or are eligible for such financing,
compliance with all terms and (1) Using the facility, system, space, the right-of-way qualifies for a rent
conditions of the grant, including any or any part of the right-of-way area for exemption. Thus, large utilities and
rental obligations. Any past due rent, commercial purposes. We added the rural cooperatives alike are eligible for
including late fees and administrative term ‘‘facility’’ and the phrase ‘‘any part rent exemptions if the facilities that they
fees, must be paid before BLM will of the right-of-way area’’ to this section build are REA eligible. Previous
approve the grant assignment to the new to help explain that BLM would require regulations did not reflect the 1996
entity. The new holder would not be a Federal, state, or local government to changes to the statute and final
liable for late fees or administrative fees pay rent if any part of the right-of-way paragraph (d) of this section implements
incurred by the previous holder, but area is being used for commercial current statutory authority.
could voluntarily pay past rent, late purposes; or Several commenters said that the
fees, and administrative fees to facilitate (2) A municipal utility or cooperative proposed rent increase would
completion of the assignment. whose principal source of revenue is disproportionately and adversely impact
Several commenters said they did not customer charges; ‘‘about 750 RUS [Rural Utilities System]
object to late payment charges as long as (C) You have been granted an telephone borrowers that serve sparsely
BLM gives the grant holder at least 90 exemption under a statute providing for populated high cost rural areas.’’ The
days prior notice that rent is due. The such; or commenters said that they face
commenters said late fees should not (D) Electric or telephone facilities uncertainty about maintaining revenue
apply if late payments resulted from constructed on the right-of-way were streams, ever increasing regulatory
BLM’s late notice or late credit. BLM financed in whole or in part, or eligible burdens and costs, and ‘‘carrier of last
strives to make sure you receive a for financing, under the Rural resort’’ obligations to serve customers
courtesy notice of your due rent in a Electrification Act of 1936, as amended throughout their service areas. The
timely manner. However, if you do not (REA) (7 U.S.C. 901 et seq.), or are commenters said that the increases
pay your rent on time, a late payment extensions of such facilities. You do not frustrate the goals of the REA and the
fee will be charged, regardless of need to have sought financing from the 1996 Telecommunications Act. The
whether you received a courtesy notice. Rural Utilities Service to qualify for this commenters also said that there are
We do not agree with the comment that exemption, but BLM may require you to more than 200 rural telephone systems
holders should be given a 90-day notice document the facility’s eligibility for eligible for financing, but who do not
of rent being due. In many landlord- REA financing. For communication site borrow from the Rural Utilities System
tenant relationships, tenants are not facilities, the addition or inclusion of that administers REA loans, who will
given any notice that rent is due. We non-eligible facilities as, for example, by also be disadvantaged. We believe the

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comments are misplaced because mean any communication service for ‘‘rural area’’ are defined in section
nothing in the proposed or final rule the transmission or reception of voice, 203(a) and (b) of the REA (see above).
increases the amount of rent BLM data, sounds, signals, pictures, writing, Non-telephone uses (TV and radio
collects. As explained earlier, REA or signs of all kinds by wire, fiber, radio, broadcasting and message telegram
eligible facilities do not pay rent, and light, or other visual or electromagnetic service in particular) are not rent-
the final rule conforms to the provisions means, and shall include all telephone exempt since they are not eligible for
of section 504(g) of FLPMA. lines, facilities, or systems used in the financing through the REA.
Several commenters said that rendition of such service; but shall not The last sentence of section
eligibility for telephone loans under be deemed to mean message telegram 2806.14(d) is intended to provide the
REA is not determined by corporate service or community antenna holder of a rent-exempt authorization
structure. They said that section 201 of television system services or facilities with the same benefits that might be
REA (7 U.S.C. 922) makes loans eligible other than those intended exclusively given to other holders of a
to all ‘‘persons now providing or who for educational purposes, or radio communication use authorization. Non-
may hereafter provide telephone service broadcasting services or facilities within telephone uses (and the associated
in rural areas, to public bodies now the meaning of section 3(o) of the facility for those uses such as radio and
providing telephone service in rural Communications Act of 1934, as TV broadcasting) cannot be financed via
areas and to cooperative, nonprofit, amended.’’ Rural area ‘‘shall be deemed the REA, nor are they eligible to be
limited dividend, or mutual to mean any area of the United States financed via the REA. However, at the
associations.’’ One commenter said that not included within the boundaries of request of the holder of the rent-exempt
the 1996 amendment applied to all not- any incorporated or unincorporated authorization, BLM has and will
for-profit rural telephone and electric city, village, or borough having a continue under this final rule, to allow
utilities that may choose to operate population in excess of 5000 for subleasing of these non-telephone
without Federal financing, but not to the inhabitants.’’ uses. Under these circumstances, BLM
exclusion of other entities which might Final section 2806.14(d) provides will assess rent to the holder under final
be eligible under the amendment. We rental exemptions to electric or sections 2806.30 through 2806.44 for the
agree and the final rule is consistent telephone facilities that are financed or non-telephone uses within the facility.
with these comments. are eligible for financing under the REA. Thus the holder of the otherwise rent-
Several commenters said that BLM This exemption is for electric or exempt authorization will now pay rent
misinterpreted section 504(g) of telephone facilities that provide service for any facilities not eligible for REA
FLPMA. The commenters said that the to rural areas. BLM will exempt rent for financing. This is a benefit to the holder
1996 amendment did not restrict the electric or telephone facilities if the and to BLM since without this
rent waiver to non-profit telephone and facility is either being financed with provision, BLM would either:
electric cooperatives whose facilities are loans pursuant to the REA, or is eligible (A) Not allow non-telephone uses in
eligible for REA financing, but for financing under that statute. BLM that facility; or
expanded the exemption to include may require you to document a facility’s (B) Issue a separate authorization for
eligible facilities, regardless of the eligibility for REA financing. Only the non-telephone uses, and assess rent
owner. BLM agrees with the electric and telephone facilities that to that holder for that use.
commenters that the exemption for REA serve rural areas, as those terms are Several commenters said that the rent
utilities applies to any eligible facility defined by the REA, are eligible for REA waivers for REA-eligible facilities
and an entity’s non-profit status is not loans. prevent a level playing field for those in
a determining factor in whether the The last sentence of final section the electric utility industry. This
facility is qualified for an exemption. 2806.14(d) only applies to comment is outside the scope of this
The final rule is clear on this matter. communication site authorizations with rule. This final rule implements section
Several commenters said that subleasing provisions. The typical right- 504(g) of FLPMA, which requires that
proposed section 2806.11(d) should be of-way grant only authorizes a single we provide the exemption to eligible
deleted in its entirety since it has no use. BLM reserves the right to issue facilities.
basis in the statute and is extraneous to additional right-of-way authorizations One commenter asked if the rent
it. BLM disagrees. Public Law 104–333 for lands on or adjacent to areas exemptions are retroactive to the date of
amended FLPMA to clarify the described in any previously issued the Act. Section 1032(b) of Public Law
exemptions under the REA, and this right-of-way. The holder does not have 104–333 provides that the amendment
provision remains in the final rule at the right to sublease to third parties to section 504(g) (inserting ‘‘eligible for
section 2806.14(d). Based upon the unless BLM specifically authorizes it in financing’’) ‘‘shall apply with respect to
comments above, we did, however, the grant. BLM only grants subleasing rights-of-way leases held on or after the
replace proposed paragraphs (d)(1), (2), rights on a regular basis in date of enactment of this Act’’
and (3) with a new final paragraph (d) authorizations for communication uses (November 12, 1996). The exemption
that more accurately implements the and facilities, and we will customarily from having to pay rental for REA
REA exemption. We based these use the term ‘‘leases’’ to apply to those eligible facilities is established in
changes on the criteria and definitions multiple use authorizations. In these current policy and practice and is not
in the Rural Electrification Act of 1936 leases the holder and BLM have agreed changed by this rule. BLM is not
and its implementing regulations (see that the holder can lease space in its currently charging rent to any utility
the Rural Utilities Service regulations at facility for additional communication with facilities eligible for REA financing
7 CFR) for ‘‘eligible’’ facilities, that is, uses without additional BLM approval unless the utility never told us its
electric or telephone facilities providing and the holder is liable for rental facility is eligible or requested the rent
service to rural areas. The commenters payments. exemption. Therefore, there should be
pointed out that the terms ‘‘telephone The REA exemption for no retroactive exemptions to consider.
service’’ and ‘‘rural area’’ are defined in communication facilities is limited by The burden of notifying BLM of
sections 203(a) and (b) of the REA, the statute to ‘‘telephone’’ facilities that eligibility for the rent exemption rests
respectively. Under those provisions, provide telephone service in a rural with the right-of-way holder or
telephone service ‘‘shall be deemed to area. The terms ‘‘telephone service’’ and applicant.

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Several commenters said that limiting maintenance of a road available to the undue hardship and it is in the public
the REA exemption to cooperative or public at large. The BLM State Director interest to waive or reduce your rent,
non-profit entities would only create could also consider a hardship waiver the State Director may waive or reduce
another disincentive for extending and or reduction under paragraph (c) of this your rent. Please note that unlike
improving telecommunications service section. Therefore, any non-profit grant paragraph (b) of this section, the BLM
in high-cost-to-serve rural areas. The holder has multiple opportunities to State Director makes the hardship
final rule does not restrict or limit request waivers or reductions under the determination. An undue hardship can
exemptions to non-profit and final rule; be a financial impact on a small
cooperative entities. The exemption (B) You provide without charge, or at business or it could involve situations
applies to any eligible facility regardless reduced rates, a valuable benefit to the where there is a need to relocate the
of the holder’s organizational status. It public at large or to the programs of the facility to comply with public health
is worth noting that BLM can consider Secretary of the Interior. This provision and safety and environmental protection
the organizational status of non-profit is not intended and should not be used laws not in effect at the time the original
organizations for rental reduction under by either BLM or a holder to avoid the grant issued. These conditions are part
section 2806.15 of this final rule. payment of rent in exchange for free use of existing policy and practice and are
One commenter said that the tax of an authorized facility. For example, not changed in the final rule.
exemption for non-profits in the Federal prior to 1995, it was not uncommon for In the final rule we added language to
tax code is section 501(c)(12), not BLM and the FS to require that an this section to require applicants to
section 501(c)(3). BLM amended the applicant reserve a percent (typically 20 include information in their requests for
proposed rule to make it clear that it is to 25 percent) of the space in a rental reduction suggesting alternative
the eligibility of a facility for REA communication facility for use, rent- rental payment plans and time frames
financing that is important, not whether free, by the agency as a condition of the when applicants expect to resume
or not the holder is considered a non- authorization. (The agency would paying full rental. In addition, BLM may
profit organization under the tax code. typically house its internal also ask for specific financial data or
Therefore, for the purposes of these final communication equipment in the other information that corrects or
regulations the question of whether the facility.) This practice is no longer modifies the statement of financial
appropriate cite to the tax code is acceptable; capability required by final section
section 501(c)(3) or section 501(c)(12) is (C) You hold a valid Federal 2804.12(a)(5) of this part. The language
irrelevant. authorization in connection with your in final paragraph (c) has been clarified
grant and the United States is already so that there will be consistency
Section 2806.15 Under What receiving compensation for this
Circumstances May BLM Waive or between offices in evaluating requests
authorization. We reworded this for hardship rental reductions. BLM
Reduce My Rent? paragraph in the final rule to make clear
This section explains that BLM may should approve a rental reduction for
that BLM will provide no waiver or
waive or reduce your rent payment, hardship reasons only for a specified
rental reduction for a FLPMA right-of-
even to zero in appropriate time frame and it will be periodically
way, such as for a road, that is
circumstances. BLM may require that reevaluated. We proposed this section
associated with an oil and gas lease. If
you submit information to support your as section 2806.12.
you need access under FLPMA to reach
request for waiver or reduction. an oil and gas lease, then the holder Section 2806.16 When Must I Make
To receive a rental waiver or would pay rent for the off lease road. In Estimated Rent Payments to BLM?
reduction, you must show BLM that: the final rule we clearly spell out that
(A) You are a non-profit organization, This section explains that to assist us
FLPMA access road grants associated in the processing of your application in
corporation, or association which is not with an oil and gas lease are not subject
controlled by, or is not a subsidiary of, a timely manner, BLM may estimate the
to a waiver or reduction in rent; and
a profit making corporation or business rental payment and collect that amount
(D) Your grant involves a cost share
enterprise and the facility or project will road or a reciprocal right-of-way before it issues the grant. Section 504(g)
provide a benefit or special service to agreement not subject to subpart 2812 of of FLPMA requires you to pay rental in
the general public or to a program of the this title. Section 504(g) of FLPMA advance of grant approval. Section
Secretary. We added the phrase ‘‘and provides that BLM may waive rentals 2806.16 does not apply to rental
the facility or project will provide a when a FLPMA right-of-way holder determined from a schedule, only for
benefit or special service to the general conveys a right-of-way to the United rent BLM otherwise determines. If you
public or to a program of the Secretary’’ States in connection with a cooperative make an advance estimated payment,
to make it clear we do not believe that cost share program between the United BLM will credit any overpayment, and
a non-profit entity’s rent should be States and the holder. In these cases, you are liable for any underpayment.
reduced unless, for example, the public BLM will determine the rent based on This provision is consistent with
receives a benefit from the use. Previous the proportion of use. For example, if current practice and policy (see
regulations only required that a holder BLM granted a two mile long right-of- previous section 2803.1–2(e)(2)) and
be a non-profit corporation or way across public land and the grant was proposed in section 2806.28(c).
association to qualify for a waiver or holder gave BLM an equivalent grant Linear Rights-of-Way
reduction. We made this change because across one mile of its property, under
many non-profit entities only provide Section 2806.20 What Is the Rent for a
this provision, the holder would only
benefits to their members, for example, Linear Right-of-Way?
pay one-half of the fair market value
a right-of-way for a homeowners road rent for the FLPMA right-of-way. This section contains the linear rent
association. The association’s status as a Previous section 2803.1–2(b)(2)(v) stated schedule for linear rights-of-way. The
non-profit entity would not be the sole that BLM may waive or reduce rent schedule provides consistency in how
factor in determining whether to reduce under similar circumstances. we determine rent and eliminates the
rent. We would consider a rent This section also explains that if the need to perform individual appraisals
reduction if the road association BLM State Director determines that on linear right-of-way grants. BLM first
provided a public benefit such as paying the full rent will cause you implemented the linear rent schedule in

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1987 (see 52 FR 25811, 25821, July 8, preparing appraisal reports. In response (2) All other right-of-way holders,
1987). to the comment that we should not including corporations, companies,
This section explains that BLM may charge telecommunication carriers partnerships, and associations, must pay
use an alternate means to compute your higher rent than other carriers, these rent at 10-year intervals not to exceed
rent if the rent determined by final regulations do not. the term of the grant.
comparable commercial practices or by These provisions are based on
an appraisal would be 10 or more times Section 2806.21 When and How Does
the Linear Rent Schedule Change? proposed section 2806.10(c), but
the rent from the schedule. provide additional detail to more
This section also explains that once This section explains that BLM accurately describe the process.
you are on a rent schedule, BLM will updates the rent schedule each calendar Consistent with existing policy and
use the schedule to calculate rent unless year based on the previous year’s practice, once you make a rent payment,
the BLM State Director decides to change in the IPD–GDP, as measured BLM will not refund it. This is because
remove you from paying rent under second quarter to second quarter. This once BLM deposits a payment, it goes
paragraph (d) of this section or you file provision is similar to previous section into the general fund of the U.S.
an application to amend your grant. 2803.1–2(c)(1)(ii). Treasury and is no longer accessible to
These provisions are consistent with We received no substantive comments BLM.
existing section 2803.1–2(c)(1)(v) and on this section. This section was We added a new paragraph (b) to the
are carried forward in the final rule. proposed as section 2806.15 and, with final rule to further explain the process
Finally, this section explains that you the exception of editorial changes, is the of calculating rent. BLM considers the
may obtain the current linear right-of- same as that proposed. first partial calendar year in the
way rent schedule from any BLM office
Section 2806.22 How Will BLM payment period described above to be
or from BLM’s National Home Page on
Calculate My Rent for Linear Rights-of- the first year of the rental payment term.
the Internet.
One commenter said it opposed the Way the Schedule Covers? We will prorate the first year rental
changes proposed section 2806.14 amount based on the number of months
This section explains that BLM left in the calendar year after the
would make because the rule would
calculates your rent for a linear right-of- effective date of the grant. For example,
allow BLM to recover ‘‘fair market
way by multiplying the rent per acre for the effective date of a grant is June 2 and
value’’ based on land use, rather than
the appropriate category of use and the annual rental is $49.32 per year.
land value. BLM disagrees. The linear
county zone price from the current Since the annual rent is less than $100,
rent schedule is based on general land
schedule by the number of acres in the a 10-year payment method would be
values on a county-by-county basis.
right-of-way area that fall into those appropriate. Rent begins on the first day
This section is consistent with existing
categories and the number of years in of the month after the effective date of
policy and procedure.
One commenter said that there are no the rental period (rent per acre X the grant. BLM would calculate rent
criteria in the rule explaining what level number of acres X number of years in beginning in July and would prorate the
of expected rent would warrant a the rental period = rent for a linear first year’s rent to cover the six months
separate appraisal, or on what this right-of-way). If BLM has not previously remaining. (e.g., $49.32 × .5 = $24.66 for
expectation would be based. The used the rent schedule to calculate your year one.) Therefore for years 2 through
commenter said that BLM should not rent, we may do so after giving you 10, rent is $49.32 × 9 years = $443.88.
use a higher rental valuation for reasonable written notice. If an existing Total rent is $443.88 + $24.66 =
telecommunication carriers, as opposed grant is a pre-FLPMA authorization, $468.54.
to other types of carriers, and that the BLM will provide you with an BLM received a variety of comments
rent should be based on rent schedules opportunity for an informal BLM regarding rental terms. Several
developed through traditional appraisal hearing as described in final section commenters thought that due to the
theories, to value the burden placed on 2806.10(b) of this final rule. With the administrative costs of processing rent
the land. Final paragraph (c) of this exception of editorial changes, this payments, the final rule should bill for
section establishes the conditions under section is the same as proposed section rent every five years rather than yearly.
which BLM may use alternate means to 2806.16. Several commenters said that in
compute rent. The regulations do not Section 2806.23 How Must I Make circumstances where the annual fee
mandate that BLM deviate from the Rental Payments for a Linear Grant? would be less than $1,000, the fee
schedule, but only provide us discretion should be a lump-sum fee based on a
to do so if certain conditions apply. This section explains that you must 25-year period. The commenters said
BLM currently has a policy prohibiting make either nonrefundable annual that where the annual fees are higher
us from deviating from the schedule (see rental payments or a nonrefundable than $1,000, the fee should be paid in
WO–IM 2002–172). That guidance states payment for more than 1 year, as lump-sum every 5–10 years. Another
that BLM will use the current schedule follows: commenter said that BLM should
to calculate rent for all linear right-of- (A) You may pay in advance the require advance payment of rent for
way uses, including required rent amount for the entire term lower rent amounts, for which the
telecommunications (fiber optics lines) of the grant; and administrative cost of processing
uses. The current policy of not deviating (B) If you choose not to pay the entire monthly or more frequent rent payments
from the linear schedule is in response amount, you must pay according to one would expend a significant portion of
to Congressional direction contained in of the following methods: the rent payment. BLM considered
the appropriations bill for the (1) If your annual rent is less than several rental terms including one year,
Department of the Interior for FY 2001. $100, private individuals must pay at five years, ten years, and longer. We
BLM bases the schedules we use to 10-year intervals not to exceed the term determined that ten years is a
calculate rent on traditional appraisal of the grant. If your annual rent is satisfactory compromise between
methods. BLM expects to use schedules greater than $100, individuals have the minimizing the impact a long-term large
to determine rent whenever possible to option to pay annually or at other multi- rent payment might have on a right-of-
avoid unnecessary expenditures year intervals that you may choose. way holder and the costs to BLM and

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industry of tracking numerous payments perpetual grant. For example, a BLM believes it is reasonable and
for relatively low dollar transactions. perpetual grant may be necessary for practical to collect rent based on a 100-
One commenter said that small BLM to protect the rights of grant year rental for a perpetual right-of-way.
annual rents may generate less revenue holders when we dispose of Federal A common industry practice is to use a
than the cost of collecting them. The land encumbered by a right-of-way 99-year lease to represent near full
commenter said that therefore BLM grant. We may also need to issue a ownership of a property. The 100-year
should calculate how much it costs to perpetual grant in circumstances when term extends through 2 to 3 generations,
send, collect, and process a rent bill, holders must comply with local land and is considered sufficient ownership
and automatically require advance use ordinances that may require a by many banks and lending institutions
payment for any rent amount below that perpetual right in order to develop to provide security to justify large loan
cost. BLM agrees with the commenter in private property interests. We frequently encumbrances. If a right-of-way holder
part and the final rule allows all right- issue perpetual grants to governmental needs a grant for a perpetual term to
of-way grant holders the option of entities for permanent facilities such as protect its rights, such as when BLM is
making a non-refundable lump sum county roads. planning to dispose of a parcel of land
rental payment for the entire term of the In the preamble to the proposed rule, encumbered by a right-of-way grant, the
grant. For private individuals not BLM invited comments concerning how holder should pay a fair market value
electing this one-time payment, you long advance rental periods should be rent to acquire the perpetual right-of-
must pay at 10-year intervals if the and what amounts should trigger a way grant.
annual rent is $100 or less or you may lump-sum rental payment (64 FR In its 1995 audit of BLM’s right-of-
pay annually, or at some other annual 32112). While we received several way program (U.S. Department of the
interval, if the annual rent is more than comments, none were related to Interior, Office of Inspector General
$100. For all other holders, including determining lump sum rent for Audit Report, Right-of-Way Grants,
corporations, associations, or other perpetual grants. Nonetheless, BLM Bureau of Land Management, Report
entities, you pay either a lump sum for believes it is important to establish an No. 95–I–747, March 1995) the
the entire term or at 10-year intervals advance lump sum rental payment for Inspector General (IG) did a comparison
regardless of the amount of the annual any grant issued in perpetuity so that if of linear rents between public and
rent. We did not establish a minimum BLM disposes of land, the holders will private lands using a net present value
rental requiring an automatic advance be protected from future rent increases method (see pages 5–7 and Appendix 4,
payment, as suggested, because we imposed by a new landowner. pg 19 of the report). The IG obtained
believe most grant holders having very data on 18 rights-of-way (easements)
Under the final rule, for linear right-
low rental amounts will opt to pay the granted by states and private
of-way grants issued in perpetuity, you
lump sum in advance so as not to be individuals for various types of facilities
must make a one-time rental payment
bothered with multiple future across lands in four different states.
before BLM will issue the grant, except
payments. These 18 rights-of-way were issued in
Several commenters said that the final individuals may make payments as perpetuity for a one-time, up-front,
rule should allow the option of paying described in (a)(2)(i) of this section. lump-sum payment. This data was
all fees in advance and BLM should set BLM calculates rent for grants issued in converted to a common base to compare
grant fee amounts using net present perpetuity by multiplying the annual what the same rights-of-way would have
value and the payments should be rent by 100 or you may request from cost had they been located on public
discounted by the time value of money. BLM a rent determination based on the lands. The data indicated that BLM was
BLM agrees with this comment in part prevailing price established by general collecting only about 18 percent
and the final rule allows for advance practice in the vicinity of the right-of- (utilizing the linear rent schedule) of the
payments for the term of a grant. BLM way. In order for BLM to determine rent rent that the private and state land
does not agree with using any formula based on the prevailing price, you must owners received in one-time, up-front,
that would discount a lump sum rental prepare an appraisal report that explains lump-sum payments. However, under
payment to allow for the time value of how you estimated the rent. The final section 2806.23(c)(1), BLM will
money because there are many appraisal report must meet all Federal collect nearly 80% of the rent that the
unknown variables used in determining appraisal standards and explain why private and state land owners received
discount rates and future rate increases you believe the rental amount initially in one-time, up-front, lump-sum
in the schedule. Holders who pay rent calculated by BLM unreasonably payments. The provisions of section
in a lump sum up-front do not pay the exceeds the fair market value of the 2806.23(c)(1) are administratively
rent increases (based on increases in the perpetual grant. You must prepare this simple to apply, and, as the above data
IPD–GDP) that would occur yearly over report at your expense, and submit it for indicates, will return a more realistic
the term of the grant. This offsets the approval by a review appraiser rental rate when BLM issues grants in
need to discount the lump sum payment delegated by BLM or the Department of perpetuity.
by the time-value of money. This the Interior. The BLM State Director As noted above, in the proposed rule
approach would reduce the already low must concur with the alternative rental BLM invited suggestions and comments
linear schedule rentals and is not in the payment amount approved by the on how long an advance rental payment
public interest. review appraiser before BLM approves should cover and what amount should
Under certain limited circumstances your request. If BLM denies your trigger an advance lump sum payment
BLM issues grants in perpetuity and request, you must pay the amount BLM (see 64 FR 32106 and 32112). We
therefore, BLM needs to establish a calculated in paragraph (c)(1) of this received several comments on the
consistent process for calculating rent section. You may appeal this decision subject of advance rental payments.
for these grants. Current BLM under section 2801.10 of this part. Most industry-related comments
regulations and guidance do not specify The provisions in paragraph (c) were supported advance rental payments for
the conditions under which BLM will not in previous regulations. We added a longer term than one year or five
issue a grant in perpetuity. There are a these provisions to provide a consistent years, including payments for the term
variety of circumstances under which it approach across BLM for determining of the grant, because this approach
would be appropriate for us to issue a rent for perpetual right-of-way grants. comes close to normal business practice

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for private right-of-way acquisitions. 2800–18. This form’s standard discussion of why BLM uses the CPI–U
Other commenters thought that advance provisions allow the holder to sublease to update the schedule in the preamble
rental payments for the term of a grant space in its facility to other users. When to the communication site final rule at
would result in lost revenues to the BLM determines it is appropriate to 60 FR 57064. The 1995 rule also
government on those lands where issue a right-of-way authorization that explains why BLM limits annual
property values continue to rise. does not allow subleasing, such as to adjustments based on the CPI–U to no
Because of the large number of low other Federal agencies, we use a more than 5 percent. Under this section,
dollar rental payments, BLM believes it standard BLM right-of-way grant Form at least every 10 years BLM will review
is a good business practice, 2800–14. This authorization does not the rent schedule to ensure that the
administratively efficient, and cost allow the holder to sublease space in its schedule reflects a rational fair market
saving to allow a holder to pay rent for facility without BLM’s approval. value estimate. Both the provision
the term of a grant. Allowing advance Because a ‘‘grant’’ is defined at section addressing adjustments and the
rental payment for the term of a grant 2801.5 to include a lease, a provision addressing the time between
eliminates BLM’s workload associated communication use lease is a form of a reviews of the rent schedule are
with annually preparing notices, right-of-way grant. The terms are consistent with previous section
tracking payments, and recording frequently used interchangeably, even 2803.1–2(d)(2)(i). There are several
deposits in cases where there is a though the authorizations have different situations to which the communication
minimal dollar return (see the U.S. terms and conditions, particularly those use rent schedule does not apply, and
Department of the Interior, Office of relating to subleasing. those are listed in this section as well.
Inspector General Audit Report, Right- This section is a rewording of proposed
Section 2806.30 What Are the Rents
of-Way Grants, Bureau of Land sections 2806.17(b)(1) through (5) to
for Communication Site Rights-of-Way?
Management, Report No. 95–I–747, make them more clear.
March 1995, showing that 7,700 rental BLM uses the rent schedule for We also made several other changes to
notices were for $34 or less). It also communication uses found in this proposed section 2806.17. We deleted
reduces paperwork for grant holders section to calculate the rent for from proposed paragraph (b)(1) (final
because they would not be required to communication site rights-of-way. You section 2806.30 (c)(1)) ‘‘Any other
track and pay rent numerous times over can find a complete discussion of the communication use, not directly
the life of the grant. rationale for using a schedule for associated with the lease operation, is
We disagree that collecting rent for determining communication site rent in not excluded’’ because the sentence is
the term of a grant, frequently a 30-year the proposed rule at 64 FR 32112 unnecessary and does not add substance
term, will result in lost revenue. If we through 32114. Please note that we do to the rule. We also added ‘‘oil and gas
collect fair market value rent for the not use this schedule to calculate rent pipeline grant’’ to proposed paragraph
term of a grant, the Government has for telephone line or fiber optic rights- (b)(2) (final section 2806.30(c)(2))
ensured the up-front receipt of rental of-way, because they are linear rights-of- because it is a more common example
payments to the Treasury. While the way and are covered by the linear rent than that in the proposed rule. There are
Government may forego future indexed schedule in section 2806.20. We far more communication sites ancillary
increases to the rent schedule over the amended final paragraph (c)(3) of this to pipelines than railroad rights-of-way.
term of the grant, this loss is offset by section to make this clear. Rights-of-way In proposed paragraph (b)(4) we deleted
the Government saving administrative for cellular telephones are covered by reference to when rent is determined by
costs over the term of the right-of-way the schedule in paragraph (b) of this appraisals or other reasonable methods
grant and by not having to pay the cost section. and moved it to final section 2806.50 of
of tracking when payments are due and The communications use schedule is these regulations. Finally, we reworded
sending notices for those grants. based on nine population strata (the proposed paragraph (b)(5) (final section
Further, BLM does not reduce the one- population served), as depicted by the 2806.30(c)(5)), making it clear that the
time payment by discounting it to the Ranally Metro Area population rankings BLM State Director is the only authority
present value of the payment. (RMA), and the type of communication that can make the determination that
use or uses for which BLM normally estimated rent would exceed the
Communication Site Rights-of-Way grants communication site rights-of- scheduled rent by five times or that in
BLM published a rule on November way. You can find a detailed discussion populations of more than one million,
13, 1995 (see 60 FR 57073), that of RMAs in the preamble for the the rent is expected to exceed the
provided for a communication use rent communication site final rule at 60 FR scheduled rent by more than $10,000.
schedule and rent collection 57062 (November 13, 1995). The uses For new technologies and the
procedures. The final rule we publish the schedule covers are listed in the conditions listed in final paragraphs
today makes no substantive changes to definition of ‘‘communication use rent (c)(4) and (5), BLM would determine
the policies or procedures in that rule. schedule,’’ set out at section 2801.5 of rent according to section 2806.50 of this
BLM received a variety of comments this rule. You may obtain a copy of the subpart.
about the communication use rent communication use rent schedule from Several commenters addressed
schedule that were previously any BLM office or on BLM’s National various issues related to communication
addressed in the 1995 rule. Where Home Page on the Internet. site rights-of-way. The comments
appropriate, this rule cross references BLM annually updates the principally concerned the rent schedule
the preamble to the 1995 rule to address communications use rent schedule and the way in which BLM would
some of the public comments on the based on two sources: the U.S. charge rents for communication sites.
proposed rule that follow. Department of Labor Consumer Price One commenter said that if BLM
In the final rule we refer to Index for All Urban Consumers, U.S. increases rent payments for
communication use ‘‘leases’’ and City Average (CPI–U), as of July 31 of communication sites, counties will
communication use ‘‘grants.’’ The each year (difference in CPI–U from increase rents also. We believe the
standard authorization BLM issues for August 1 of one year to July 31 of the commenter was concerned that BLM
communication site rights-of-way is a following year); and the RMA will begin charging rent to the counties
Communication Uses Lease, BLM Form population estimates. You can find a for communication site uses. Under this

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final rule, local governments are exempt ‘‘toll’’ on electronic commerce. We also would not use the schedule to calculate
from paying rent, except when they are disagree that this policy discourages co- a communication use rent.
using the facility, system, space, or any locating facilities. This rule and the One commenter suggested that the
part of the right-of-way area for 1995 policy encourage co-location of final rule should more accurately
commercial purposes (see section facilities by allowing a holder to describe how BLM annually indexes the
2806.14(b)(1)). sublease space in its facility to fees, and suggested the following
For example, when BLM issues a customers and tenants. Prior to 1995, language for the final rule:
communication site lease to a local customers and tenants were required to BLM annually updates the schedule based
government, e.g., a county, and the local hold separate grants and all users paid on two sources: the U.S. Department of Labor
government (facility owner) leases space full fair market value. Consumer Price Index for All Urban
to other users for commercial purposes, Several commenters objected to the Consumers, published in July of each year
then the local government must pay rent way that BLM proposed to calculate and the population estimates for the Ranally
to BLM for the commercial activities rents for communications sites when the Metro Areas published annually in the Rand
being conducted on the right-of-way. In nature of the site is such that BLM McNally Commercial Atlas and Marketing
Guide.
these cases the rent the local would conduct a separate appraisal
government owes would be based upon rather than use the rent schedule for the We believe that final paragraph (a)(2) of
the tenant uses in the facility, not the site. These commenters asserted that this section provides adequate guidance
local government’s uses. In cases where individual appraisals would cause on indexing fees and is similar to what
there are only customer uses in a facility undue hardship for many the commenter suggested.
owned by a local government, and the communication site grant holders and Commenters said that for
local government is profiting from the would single out telecommunications communities of less than 50,000 people,
occupant uses within the facility, then carriers for higher rents. We disagree BLM uses the most recent Census
BLM would assess the local government with the commenter. One of the Bureau data to determine the size of
based on the highest value use within objectives of today’s rule, consistent communities served by communication
the facility pursuant to section with BLM’s 1995 communication site sites. They recommended that size be
2806.34(d). This is consistent with rule, is to eliminate the need to perform more accurately stated, saying that for
existing policy and previous section individual appraisals for communities of less than 50,000 people,
2803.1–2(b)(1). communication sites because of the high the agency will use the populations
One commenter stated that BLM costs to perform the analysis. Previous listed in the most current edition of the
appeared to rely on the misapplied use regulations at 2803.1–2(c)(1)(i) Rand-McNally Road Atlas as the source
of comparables from exceptionally high contained similar provisions. This final for determining the appropriate
value urban areas. We received similar regulation allows for individual ‘‘population served’’ category in the
comments about other sections of this appraisals in population areas of communications use fee schedule. BLM
rule. One basis for the rent schedule is 1,000,000 or more when the rent is agrees with the commenters. The
the population served, which recognizes expected to be $10,000 above the preamble to the proposed rule stated
a range of populations, from the high scheduled rate, or in situations where that BLM uses the most recent Census
value urban areas to rural communities estimated rent exceeds the schedule by Bureau data to determine population
of less than 25,000 people. We believe five times. BLM State Director approval size for communities of less than 50,000
that basing the rent schedules on the is needed in both of these people. In the final rule we use the most
population served is a proper circumstances. Appraisals may also be current edition of the Rand-McNally
consideration in arriving at the fair necessary to set minimum rents in Road Atlas as the source for these
market value of a communication site competitive bid situations and to set population determinations. The final
right-of-way. In addition, the population rents for uses and technologies not rule states this clearly (see final section
ranges appearing on the schedule fairly currently on the schedule. We believe 2806.32(a)(4)).
represent populations on and around that there will be very few situations Section 2806.31 How Will BLM
public lands. This final rule does not where an appraisal will be necessary for Calculate Rent for a Right-of-Way for
change the communication uses rent communication sites. Communication Uses in the Schedule?
schedule amounts in previous Several commenters opposed
regulations. We continue to believe that separating the criteria that BLM would This section explains that for single-
the rent schedule amounts established use to determine when to conduct a use facilities, BLM applies the rent from
pursuant to that rule are appropriate. separate appraisal of the rent due on a the communication use rent schedule
Therefore, we did not amend the final grant. One stated that conducting for the type of use and the population
rule as a result of the comments. individual appraisals would be a strata it serves. For multiple-use
One commenter asserted that charging disincentive to co-locate facilities and facilities, whose authorization provides
rents for telecommunications facilities would cause undue hardship for many for subleasing, BLM sets the rent of the
was tantamount to a toll imposed by grant (permit) holders. Another highest value use in the facility or
BLM on electronic commerce and commented that there were no criteria facilities as the base rent (taken from the
discouraged co-locating facilities on as to what types of use would trigger an rent schedule) and adds to it 25 percent
rights-of-way. We disagree. alternative valuation or what level of of the rent from the rent schedule for all
Communication site right-of-way expected rent would warrant a separate tenant uses in the facility or facilities, if
holders on public land paid rental appraisal. The final rule is clear on the a tenant use is not used as the base rent
under FLPMA and even pre-FLPMA criteria for not using the schedule. As (rent = base rent + (25 percent of all rent
authorities prior to the 1995 explained above, individual appraisals due to additional uses in the facility or
communication site policy (see 60 FR would be considered if new facilities). For example, a single use
57058). As previously stated, section technologies are present or the criteria commercial mobile radio service
504(g) of FLPMA requires holders to pay in final paragraphs (c)(4) and (5) are (CMRS) facility owner would pay the
fair market value for the use of public met. We believe that final sections CMRS rate for the population served. If
land. This final rule restates existing 2806.30(c)(1) through (5) adequately the same CMRS facility owner subleased
policy and law and is not imposing a describe the situations when BLM space in his facility to a cellular

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Federal Register / Vol. 70, No. 77 / Friday, April 22, 2005 / Rules and Regulations 21013

provider, the cellular provider’s rent must submit an annual statement of lease must serve the same population
would be the base rent, and 25 percent who is in the facility. strata. In other words, when BLM issues
of the CMRS rate would be added to that Several commenters said that in a grant or lease, the holder and all of the
to determine the total rent due. You can paragraph (c) we should replace tenant and customer uses in the facility
find additional details on calculations ‘‘tenants’’ with ‘‘tenants and customers’’ are considered to serve the RMA or
for single-use facilities in final section since that is the phrase used in the community with the greatest
2806.33 and for multiple-use facilities ‘‘clauses or stipulations in the leases population. High and low power uses
in final section 2806.34. used by BLM and the Forest Service.’’ may be located in the same facility and
When calculating rent, BLM will The commenters also said that facility serve different RMAs or communities,
exclude customer uses, except as managers and owners may not but they would all be charged according
provided for in final sections understand the definition of ‘‘customer to the largest RMA or community served
2806.34(b)(4) and 2806.42, and those or tenant’’ and therefore may not report by any user within the facility. A site
exempted uses described in section an accurate inventory of all of the uses may accommodate a mix of high and
2806.14, and any uses whose rent has in each facility. BLM agrees with the low power users, but as long as these
been waived or reduced to zero as comment and added the phrase ‘‘tenants users are not located in the same facility
described in section 2806.15. and customers’’ in this section rather or authorized by the same lease, BLM
By October 15 of each year, you, as a than only ‘‘tenants.’’ Section 2801.5 of can make a case-by-case determination
communication site grant or lease these regulations provides definitions of the population served by each facility
holder, must submit to BLM a certified for both terms. (e.g., the high power facility could serve
statement listing any tenants and an RMA and the low power facility
customers in your facility or facilities Section 2806.32 How Does BLM could serve a closer community and not
and the category of use for each tenant Determine the Population Strata reach the RMA). The section also makes
or customer as of September 30 of the Served? clear that BLM will not modify or
same year. BLM may require you to This section outlines the processes change the population rankings
submit any additional information currently described in BLM policy for published in the Rand McNally
needed to calculate your rent, such as determining the population served by a Commercial Atlas and Marketing Guide
private lease agreements with tenants communication facility. This or the population of the community
and customers that would provide information was in the proposed rule at served.
information on fees the building or section 2806.19(b). We made it a Several commenters said that
facility owner charges for space in its separate section in the final rule so that proposed paragraph (b)(2) should make
facility. BLM will determine the rent our communication site users clearly clear that if a site or facility is located
based on the certified statement understand how we determine the in an RMA, but serves two or more
provided. We require only facility population served. We also eliminated RMAs, you should use the population of
owners or facility managers to hold a proposed section 2806.19(c), because we the largest RMA served in calculating
grant or lease (unless you are an do not make case-by-case exceptions to rent. We agree and the final rule is clear
occupant in a federally-owned facility the population guidelines described on this issue at final section
as described in section 2806.42), and below. 2806.32(a)(2).
will charge you rent for your grant or BLM determines the population Several commenters said that under
lease based on the total number of served as follows: the proposed rule, a permit holder could
communication uses within the right-of- (A) If the site or facility is in a serve a ‘‘de minimus percentage of a
way and the type of uses and population designated RMA, BLM will use the large RMA’’ and still be required to pay
strata the facility or site serves. This population strata of the RMA; rent as if the entire RMA was served.
final rule is slightly different from the (B) If the site or facility is in a The commenters said that the proposed
proposal. We reworded it to provide designated RMA, but serves two or more rule ensures that BLM will charge the
additional explanation of the process RMAs, BLM will use the population of highest possible rent regardless of the
BLM uses to calculate rent for the RMA having the greatest population; percentage of the population served in
communication uses. We originally (C) If the site or facility is outside an a given area and that may be
established this process in previous RMA, but it serves one or more RMAs, inequitable. In situations where only a
section 2803.1–2(d). BLM will use the population of the small part of a large RMA is served,
We reworded proposed sections RMA having the greatest population; under this final rule and under existing
2806.18(a)(1) and (a)(2) (final sections (D) If the site or facility is outside an policy, we calculate rent for the entire
2806.31(a)(1) and (a)(2)) to make them RMA and the site does not serve an RMA. This is because no accurate
clearer and added language in final RMA, BLM will use the population of means exists to measure and verify
section (a)(2) to explain that in order to the community it serves having the percentages of the population served
have a multiple use facility, the greatest population as identified in the within any given RMA. Even if it were
authorization must allow for subleasing. current edition of the Rand McNally possible to verify that a particular
We added this provision to explain Road Atlas. BLM will not add the communication use served only 10
existing policy. We added similar populations of several communities percent of the population of an RMA,
language in final sections 2806.34(a) together to determine the population for example, it would be incorrect to use
and 2806.36(a). served; and the population figure represented by the
Final section 2806.31(b) explains the (E) If the site or facility is outside an 10 percent as the basis to establish rent.
exclusions that BLM considers in RMA and serves a community of less The reason is that RMAs are an
calculating rent and references the than 25,000 persons, BLM will use the indicator of current economic activity
sections in the final regulations where lowest population strata shown on the that is taking place within that area.
those exclusions are described. rent schedule. Markets in a particular area determine
Exceptions are also noted. Final In calculating rent, all uses within the rent, not the area of the market that the
paragraph (c) of this section makes clear same facility must serve the same RMA use serves. For example, a television
that it is only the holder of a grant or or community, and all uses in the same station serving the Phoenix market pays
lease, not tenants and customers, that facility or authorized under the same significantly more rent for its

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21014 Federal Register / Vol. 70, No. 77 / Friday, April 22, 2005 / Rules and Regulations

communication facility, whether it is Section 2806.33 How Will BLM calculate the rent as in paragraph (a)(1)
located on private or public lands, than Calculate the Rent for a Grant or Lease of this section. In this case, the TV rent
does a television station serving the Authorizing a Single Use would be the highest value use and
Dillon, Montana market. Communication Facility? BLM would charge the FM portion
The rent or payment for a particular This section explains that BLM according to the rent schedule as if it
calculates the rent for a grant or lease were a tenant use. The proposed rule at
communication use is not dependent on
authorizing a single-use communication section 2806.20(a)(4) stated we would
that service reaching 100 percent of the
facility from the communication use use ‘‘the sum of each use’’ when
population in an RMA. In fact, most calculating rent in these situations. We
communication uses do not serve the rent schedule based on the type of use
and the population served. believe that this phrase was misleading.
entire population of an RMA, either due For example, one might have incorrectly
to natural physical constraints This section was proposed as section
2806.19(a) and is similar to that determined that the base rent for the
(frequency shadow area from example discussed above was the full
mountains, for example) or from the provision. The provisions in proposed
sections 2806.19(b) and (c) are now in value of the TV and FM stations added
user’s own business decisions, or together. Therefore, we deleted the
final section 2806.32.
because a particular use, such as PCS phrase from the final rule.
(mobile telephone use), is limited by its Section 2806.34 How Will BLM This section also describes the
own technology to serve only a portion Calculate the Rent for a Grant or Lease process to calculate rent for several
of a particular area or RMA. For Authorizing a Multiple-Use combinations of holder, tenant, and
example, one television station may Communication Facility? customer situations. These rental
have a 50% market share in an RMA, This section explains that for calculation situations were not covered
while another competing television multiple-use communication facilities: in previous regulations, but are
station may only have a 10% market (A) BLM first determines the included here so members of the public
share in the same RMA. A private population strata the communication and BLM staff would better understand
communication provider would charge facility serves according to section when certain special calculation
each TV station the same rental rate, as 2806.32 of this subpart; and policies apply.
should BLM using our communication (B) Then calculates the rent assessed In calculating rents, BLM will exclude
use rent schedule. Likewise, the to facility owners or facility managers a facility owner’s or facility manager’s
programming format of a television or for a grant or lease for a communication exempted uses described in final section
radio station, which inherently limits facility that authorizes subleasing with 2806.14, or uses whose rent has been
the population the station might serve, tenants, customers, or both, using the waived or reduced to zero in final
has no bearing on the rent. The procedures listed. section 2806.15. Uses of certain non-
programming format of one station may Under this section, using the profit corporations providing benefits to
communication use rent schedule, BLM the public would qualify under this
be jazz, while another is country, while
will determine the rent of the highest latter citation.
another is classical, and another talk.
value use in the facility or facilities as BLM will exclude exempted uses, or
While most programming is in English,
the base rent, and add to it 25 percent uses whose rent has been waived or
some radio stations may broadcast in a reduced to zero, of a customer or tenant
of the scheduled rent for each tenant use
different language and intentionally try if they choose to hold their own lease
in the facility or facilities. The highest
to reach a very limited market. Each or are occupants in a Federal facility.
value use is the use that has the highest
may only serve a narrow percentage of dollar value in the communication use BLM will charge rent to a facility
the total RMA, but the rent for each use rent schedule. This highest value use is owner whose own use is either
is calculated based on the population of central to the definition of base rent. If exempted, waived, or reduced to zero,
the entire RMA. the highest value use is not the use of but who has tenants in its facility, in an
BLM realizes that some users have the facility owner or facility manager, amount equal to the rent of the highest
been subject to significant rent increases BLM will consider the owner’s or value tenant use plus 25 percent of the
when a smaller RMA that their manager’s use like any tenant or rent from the rent schedule for each of
communication use had been serving is customer use in calculating the rent. the remaining tenant uses subject to
combined by Rand McNally with a However, if a facility owner is engaged rent. For example, a non-profit facility
much larger RMA. The holder’s in a PMRS, internal microwave, or owner operates an FM radio translator
communication use may still be serving ‘‘other’’ use, and that use is not the whose rent BLM has waived, and it has
the same number of people, but now its highest value use in the facility, then two tenants in the facility, one of which
service area has been combined and BLM excludes these uses when operates a CMRS and the other a
calculating the additional 25 percent television translator. Rent for the holder
made part of a much larger economic
amount under paragraph (a)(1) (see final is based on the CMRS use, which is the
unit. Under these conditions, BLM is
section 2806.35(b)). Likewise, BLM highest value use, and to this is added
still obligated to determine rent based
excludes the facility manager’s use in 25 percent of the schedule rate for the
on service to the new, larger RMA. If television translator. Under this
the 25 percent calculation (see final
payment of the new rental amount section 2806.39(a)) when its value does example, the holder’s not-for-profit FM
creates undue financial hardship, the not exceed the highest value in the radio use does not contribute to rent.
holder can request a reduction in rent facility. If a tenant’s use is the highest This section also explains (at section
under final section 2806.15. The final value use, BLM will exclude the rent for 2806.34(b)(3)) that BLM will not charge
rule makes clear that BLM will not that tenant’s use when calculating the rent to a facility owner, facility manager,
modify or change the population additional 25 percent amount under or tenant (when it holds a grant or lease)
rankings published in the Rand McNally paragraph (a)(1) of this section. when all of the following occur:
Commercial Atlas and Marketing Guide If the same grant or lease authorizes (A) BLM exempts from rent, waives,
or the population of the community a grant holder multiple uses, such as a or reduces to zero the rent for the
served due to the reasons cited above. TV and a FM radio station, BLM will holder’s use;

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(B) Rent from all other uses in the entity engaged in a PMRS, internal We added a new paragraph (b) to this
facility is exempt, waived, or reduced to microwave, or ‘‘other’’ use is: section to make it clear that when
zero or BLM considers such uses as (A) Using space in a facility owned by someone owns a building, equipment
customer uses; and either a facility owner or facility shelter, or tower on public lands for
(C) The holder is not operating the manager, BLM will consider the entity communication purposes, they must
facility for commercial purposes with to be a customer and not include these have a BLM right-of-way authorization
respect to such other uses in the facility. uses in the rent calculation for the for their improvements, even if they are
If a holder whose own use BLM facility. In the final rule we replaced the a tenant or customer in someone else’s
exempts from rent, or whose rent has phrase ‘‘in someone else’s facility’’ with facility. This provision is consistent
been waived or reduced to zero, is ‘‘facility owner or facility manager’’ to
conducting a commercial activity with with current policy and will eliminate
make the rule more specific and easier confusion among some right-of-way
customers or tenants whose uses are to understand; or
similarly without rent, BLM will charge holders.
(B) The facility owner, BLM will
rent based on the highest value use follow the provisions in section 2806.31 This section also explains that BLM
within the facility. For example, if an of this subpart to calculate rent for a will charge tenants and customers who
exempt county grant holder subleases lease involving these uses. However, we hold their own lease in a facility, as
space to a private mobile radio customer grant or lease holders, the full annual
include the rent from the rent schedule
(PMRS) and charges the customer a fee rent for their use based on the BLM
for a PMRS, internal microwave, or
to locate its equipment in the facility, communication use rent schedule.
other use in the rental calculation only
the county and customer are conducting Moreover, BLM will include such tenant
if the value of that use is equal to or
a commercial activity in the facility. or customer use in calculating the rent
greater than the value of any other use
BLM would assess rent to the county at the facility owner or facility manager
in the facility. BLM excludes these uses
the PMRS rate. Proposed section
in the 25 percent calculation (see final must pay.
2806.20(b)(4) incorrectly stated this rule
section 2806.31(a)) when their value The provisions in this section were
in providing that the customer or tenant
does not exceed the highest value in the proposed in section 2806.22, and except
uses were ‘‘not’’ exempt from rent. The
rule only applies to exempted uses or facility. This is because these uses for the changes listed above and minor
those uses whose rent has been waived become customer uses and are not changes in terminology, this section
or reduced to zero. This paragraph does subject to rent (see the definition of remains as proposed.
not apply to facilities exempt from rent ‘‘customer’’). We reworded proposed
under section 2806.14(d) of this subpart section 2806.21 to make the final rule Section 2806.37 How Will BLM
except when the facility also includes clearer. Calculate Rent for a Grant or Lease
non-eligible facilities. One commenter said that BLM should Involving an Entity With a Single Use
Several commenters said that the final avoid using the term ‘‘exempt’’ when (Holder or Tenant) Having Equipment or
rule should add ‘‘plus 25% of the fee describing how BLM considers Occupying Space in Multiple BLM-
schedule rate for all other exempted customer uses when determining Authorized Facilities To Support That
tenant uses’’ to the end of proposed communication use rentals. The Single Use?
section 2806.20(b)(4) (final section commenter said the final regulations
2806.34(b)(4)). BLM disagrees. Proposed should read: ‘‘The PMRS, internal This section explains that for leases
section 2806.20(b)(4) contained an error microwave, or ‘‘other’’ use would not be involving an entity (holder or tenant)
that changes the meaning of the rule. included in the rental calculation.’’ We with a single use having equipment or
The phrase ‘‘customers and tenants that agree with the commenter. In the final occupying space in multiple BLM
are not exempt from rent’’ should have rule we do not use the term ‘‘exempt.’’ authorized facilities to support that
been ‘‘customers and tenants that are The uses commenter listed are excluded single use, BLM will include the single
also exempt from rent.’’ For example, in from the rental calculation. use to calculate rent for each grant or
situations where all uses in a facility are Section 2806.36 If I Am a Tenant or lease occupied by that use. A single use
customer-related uses or exempted Customer in a Facility, Must I Have My occurs, for example, if a television
tenant uses and the holder of the facility Own Grant or Lease and, if So, How Will station locates its antenna on a tower
is operating that facility for commercial This Affect My Rent? authorized by lease ‘‘A’’ and locates its
purposes, BLM will assess a rent for the related broadcast equipment in a
highest value use in that facility, but This section explains that you may building authorized by lease ‘‘B.’’ Under
does not add 25 percent for the have your own authorization (a lease or
the requirement in final section
additional exempted uses. This rule a grant), but BLM does not require a
2806.31(c) to list tenants and customers
recognizes the commercial activity in separate lease for tenants and customers
in each facility, television use would be
the facility and allows the United States using a facility authorized by a grant or
lease that allows subleasing. BLM included in each facility because each
to collect a rental for the commercial facility is benefitting economically from
activity. Therefore, we did not add the charges the facility owner or facility
manager rent based on the highest value having the television broadcast
language suggested by commenters.
use within the facility (including any equipment located there, even though
Section 2806.35 How Will BLM tenant or customer use authorized by a the combined equipment is supporting
Calculate Rent for Private Mobile Radio separate lease) and 25 percent of only one single end use. The television
Service (PMRS), Internal Microwave, scheduled rent for each of the other uses station use would be included in the
and ‘‘Other’’ Category Uses? subject to rent (including any tenant or rental calculation for both lease ‘‘A’’ and
The term ‘‘other’’ is defined in section customer use authorized by a separate lease ‘‘B.’’ With the exception of minor
2801.5 of this rule (see the lease and the facility owner’s use if it is editorial changes, this section is
‘‘Communication use rent schedule at not the highest value use). We included substantially equivalent to proposed
(9)) and is used in the rent schedule at ‘‘facility manager’’ in the final rule to section 2806.23(a).
the far right of the rent schedule chart. reflect the fact that a facility manager is
This section explains that when an generally the right-of-way holder.

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Section 2806.38 Can I Combine percent calculation, and we would not lease or sundry notice), BLM will
Multiple Grants or Leases for Facilities include the facility manager in the rent determine the rent using the linear rent
Located on One Site Into a Single Grant calculation. This section was proposed schedule (see section 2806.20) or rent
or Lease? as section 2806.24. scheme associated with the other
If you are a facility owner and you authorization, and not the
Under this section, with BLM’s
terminate your use within the facility, communication use rent schedule. This
approval, if you hold multiple
but want to retain the lease for other section was proposed as section
authorizations for two or more facilities
purposes, BLM will continue to charge 2806.25(c). We reworded the entire
on the same site, you can combine all
you for your authorized use until BLM paragraph of the proposed rule making
those uses under one grant or lease. The
amends the lease to change your use to it easier to understand. We deleted the
highest value use in all the combined
facility manager or to some other last sentence of the proposed rule
facilities becomes the base rent. BLM
communication use. We added this because it was not an accurate
then charges each remaining use in the paragraph to the final rule to make it statement.
combined facilities at 25 percent of the clear that when a holder’s use changes,
rent taken from the schedule. These the holder needs to amend its lease to Section 2806.42 How Will BLM
uses include uses we previously reflect the change in use. If the holder Calculate Rent for a Grant or Lease
calculated as base rents when BLM didn’t request an amendment, the Authorizing a Communication Use
authorized each of the facilities on an holder would continue to pay for a use Within a Federally-Owned
individual basis. This section was that no longer exists in the facility. Communication Facility?
proposed as section 2806.23(b). This section explains that if you are
One commenter said that this final Section 2806.40 How Will BLM an occupant of a federally-owned
section should state that authorizations Calculate Rent for a Grant or Lease for communication facility, you must have
will be combined when it is in the Ancillary Communication Uses your own grant or lease and pay the full
public interest and at BLM’s discretion. Associated With Communication Uses rent from the rent schedule. If a Federal
The commenter also said that the final on the Rent Schedule? agency holds a grant or lease and agrees
rule should make clear that when This section explains that if you use to operate the facility as a facility owner
facilities are combined under a single ancillary communication equipment, under section 2806.31 of this subpart,
authorization, the previous base rents such as a microwave relay, directly occupants do not need a separate BLM
will be included at the 25 percent rate related to operating, maintaining, and grant or lease. In this case, BLM will
as tenants. BLM agrees with this monitoring the primary use of a grant calculate and charge rent to the Federal
comment and added language to the (see the definition of ‘‘Communication facility owner under sections 2806.30
final rule to specify that you must have use rent schedule’’ in section 2801.5 of through 2806.44 of this subpart.
BLM approval to combine multiple this part), BLM will calculate and This section was proposed as section
leases for facilities on one charge rent only for the primary use. 2806.26. We reworded the proposed
communication site into one lease. We This section was proposed as section rule to clear up misunderstandings
also added the last sentence to the 2806.25(a). In the final rule we replaced about Federal agency grant holders
paragraph to make it clear that once the phrase ‘‘internal mobile radio and paying rent. Several commenters were
facilities are combined under one microwave systems’’ with ‘‘ancillary concerned BLM was going to start
authorization, there would be one communications equipment’’ because assessing rent for Federal grant holders
highest value use determining base rent we no longer use the term ‘‘internal (see the discussion of comments in
and all other contributing tenant uses mobile radio’’ anywhere in this rule. section 2806.14) and this section
would be at the 25 percent rate. Also, we replaced the phrase ‘‘give explains how that may occur in the case
support or connect one another on the of a communication site lease. We
Section 2806.39 How Will BLM
same communications facility’’ with ‘‘is reworded the second paragraph of the
Calculate Rent for a Lease for a Facility
used solely in direct support of the proposed rule to explain that a Federal
Manager’s Use?
primary use’’ and added a cross- agency must be willing to accept a grant
This section explains that BLM will reference to the definition of or lease and operate the facility as a
follow section 2806.31(a) to calculate ‘‘Communication use rent schedule.’’ facility owner before tenants would not
rent for a lease involving a facility This definition states that ancillary need a separate right-of-way grant.
manager’s use. However, we include the communication equipment is directly Commenters said that Federal
rent from the rent schedule for a facility related to operating, maintaining, and agencies do not fit within the
manager’s use in the rental calculation monitoring the primary use, and more definitions of ‘‘facility manager’’ or
only if the value of that use is equal to accurately describes what uses we ‘‘facility owner,’’ since subpart 2806,
or greater than the value of any other consider to be ancillary. We dropped regarding rent, cannot apply to Federal
use in the facility. BLM excludes the proposed section 2806.25(b) from the agencies, even those that have
facility manager’s use in the 25 percent final rule because it did not describe commercial ventures and otherwise may
calculation in section 2806.31(a) when ancillary uses and was therefore fit the descriptions of ‘‘facility manager
it does not exceed the highest value use. unnecessary in this section. We received or owner.’’ For the reasons discussed
For example, if a facility manager leased no substantive comments on this earlier in sections 2801.5 and 2806.14,
space to a lower valued broadcast section. BLM disagrees with this comment. The
translator, the facility manager would be final rule allows for a Federal agency to
the highest value use setting base rent Section 2806.41 How Will BLM become a facility owner if it so chooses.
and the broadcast translator would enter Calculate Rent for Communication In practical terms, we realize that few
the 25 percent calculation in section Facilities Ancillary to a Linear Grant or Federal agencies will choose to become
2806.31(a). If the facility manager also Other Use Authorization? a facility manager or owner.
leased space to a cellular company, the When BLM authorizes a One commenter said that we should
higher valued cellular company use communication facility which is rewrite the first sentence of proposed
would determine the base rent, the ancillary to a linear grant, or some other section 2806.27 as follows: ‘‘In the first
broadcast translator would enter the 25 type of use authorization (e.g., a mineral year of implementation of the rent

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schedule, CY 1997, BLM will phase-in Section 2806.44 How Will BLM section 2806.30(c)(1) through (5) sets
over a 5-year period any rent in excess Calculate Rent for a Facility Owner or forth the occasions when we would not
of $1,000 increase from CY 1996 rents.’’ Facility Manager’s Grant or Lease Which use the communication use rent
The commenter said that the proposed Authorizes Communication Uses schedule to determine rent. Appraisals
rule could be misinterpreted to mean Subject to the Communication Use Rent may be appropriate for new
that BLM would apply the phase-in of Schedule and Communication Uses technologies, competitive bidding, and
rent any time there was an increase in Whose Rent BLM Determines by Other certain conditions described in
rent of $1,000 or more. We assume that Means? paragraph (c)(5) of this section. Finally,
the commenter’s mention of CY 1997 This section explains how BLM we do not use a higher valuation for
refers to the fact that calendar year 1997 calculates rent for a facility owner or telecommunication carriers than we do
was the first year that the facility manager’s lease which includes for other types of carriers.
communication use rent schedule was communication uses subject to the Subpart 2807—Grant Administration
effective. The preamble to the proposed communication use rent schedule and and Operation
rule at 64 FR 32113 (June 15, 1999) communication uses whose rent BLM
determines by other means. BLM This subpart describes administration
notes that 1997 was also the first year and operations activities under grants. It
of BLM’s 5-year phase-in period for the determines the rent for a use not on the
communication use rent schedule under covers topics such as:
communication use rent schedule. (A) When grant holders can start
section 2806.50 of this subpart. For
Because more than five years have using their right-of-way;
those uses on the rent schedule, BLM
passed since the communication use establishes rent using sections 2806.30 (B) When grant holders must contact
rent schedule was effective, all and 2806.31 of this subpart. We BLM;
qualifying cases for phase-in rent have determine the facility owner or the (C) Liability for different kinds of
been completed. This fact has caused us facility manager’s rent by identifying the grant holders;
to delete this section from the final rule. highest rent in the facility and adding to (D) Policies relating to terminating or
it 25 percent of the rent of all other uses suspending grants;
Section 2806.43 How Does BLM (E) How to amend or assign grants;
Calculate Rent for Passive Reflectors subject to rent. We erroneously omitted
this section from the proposed rule. and
and Local Exchange Networks? (F) Policies relating to renewing
Although it rarely occurs, BLM believes
it is necessary to make clear how rent grants.
This section explains that BLM
calculates rent for passive reflectors and should be calculated in these situations. Section 2807.10 When Can I Start
local exchange networks by using the Other Rights-of-Way Activities Under My Grant?
same rent schedules for passive This section explains that when you
Section 2806.50 How Will BLM
reflectors and local exchange networks can start activities under your grant
Determine Rent for a Grant When
that the Forest Service uses for the depends on the terms of the grant. You
Neither the Linear Rent Schedule at
region in which the facilities are can start activities when you receive the
Section 2806.20 Nor the
located. You may obtain the pertinent Communication Use Rent Schedule at grant you and BLM signed, unless the
schedules from any Forest Service or Section 2806.30 Applies? grant includes a requirement for BLM to
from any BLM state office in the region provide a written Notice to Proceed. If
in question. For passive reflectors and This section explains that when your grant contains a Notice to Proceed
local exchange networks not covered by neither the linear nor the requirement, you may not initiate
communication use rent schedule is construction, operation, maintenance, or
a Forest Service regional schedule, BLM
appropriate, BLM determines your rent termination until BLM issues you a
uses the provisions in section 2806.50 of
through a process based on comparable Notice to Proceed.
this subpart to determine rent.
commercial practices, appraisals, We received no comments on this
This section also includes definitions competitive bid, or other reasonable section. With the exception of editorial
of the terms ‘‘passive reflector’’ and methods, such as developing a new changes, this section remains as
‘‘local exchange networks’’ that are new schedule. BLM will notify you in proposed.
to the final rule. We added these terms writing of the rent determination. If you
so that BLM field personnel and grant disagree, you may appeal BLM’s final Section 2807.11 When Must I Contact
holders understand the terms and, for determination under section 2801.10 of BLM During Operations?
example, do not confuse a radio phone this part. This section is based on This section explains that you must
local exchange network with a private proposed section 2806.28(b) and the contact BLM:
mobile radio service. We use Forest requirements are the same as that (A) At the times specified in your
Service definitions here since we base proposed rule. grant;
our rent for these uses on the Forest Several commenters were opposed to (B) When your use requires a
Service schedule (see Forest Service the alternate rent calculation to recover substantial deviation from the grant.
Handbook 2709.11–2000–1, Chapter fair market value. The commenters said You must obtain BLM’s approval before
that the provision did not contain you begin any activity that is a
48.12 (e) and (f)). This section was
criteria ‘‘as to what types of use would substantial deviation;
proposed as sections 2806.28(a) and (d).
trigger an alternate valuation or what (C) When there is a change affecting
Proposed section 2806.28(b) is covered
level of expected rent would warrant a your application or grant, including, but
in final section 2806.50 and proposed separate appraisal or on what the not limited to, changes in:
section 2806.28(c) is covered in final expectation would be based.’’ The (1) Mailing address;
section 2806.16. commenters also said that BLM should (2) Partners;
not use a higher rental valuation for (3) Financial conditions; or
telecommunication carriers than we do (4) Business or corporate status;
for other types of carriers. BLM (D) When you submit a certification of
disagrees with the commenters. Final construction, if the terms of your grant

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require it. A certification of construction You are also strictly liable for any means that when a grant holder
is a document you submit to BLM after activity or facility associated with your compensates the United States in strict
you have finished constructing a right-of-way area that BLM determines liability for damage or injury caused by
facility, but before you begin operating presents a foreseeable hazard or risk of a third party, the grant holder steps into
it. The certification verifies that you damage or injury to the United States. the place of the United States and has
have constructed and tested the facility BLM will specify in the grant any the right to pursue compensation from
to ensure that it complies with the terms activity or facility posing such hazard or the third party for the damage or injury
of the grant and with applicable Federal risk, and the financial limitations on done to the United States.
and state laws and regulations; and damages commensurate with such If you cannot satisfy claims for injury
(E) When BLM requests it. You must hazard or risk. BLM will not impose or damage, all owners of any interests
update information or confirm that strict liability for damage or injury in, and all affiliates or subsidiaries of
information you submitted before is resulting primarily from an act of war, any holder of, a grant, except for
accurate. an act of God, or the negligence of the corporate stockholders, are jointly and
We changed paragraph (b) of this United States, except as otherwise severally liable to the United States. If
section by moving the definition of the provided by law. As used in this BLM issues a grant to more than one
term ‘‘substantial deviation’’ from this section, strict liability extends to costs person, each is jointly and severally
section to the definitions section of incurred by the Federal Government to liable. Joint and several liability in a
subpart 2801. We did this because the control or abate conditions, such as fire grant means that each person who holds
term is used more than once in these or oil spills, which threaten life, an interest in a grant is responsible for
regulations and it is redundant to define property, or the environment, even if the full amount of liability if the other
the term the same way in two separate the threat occurs to areas that are not grant holders cannot satisfy the liability.
places. We also added language to under Federal jurisdiction. This liability This provision is in previous regulations
specify that you must obtain BLM’s is separate and apart from liability at sections 2803.1–5(g) and (i).
approval before you begin any activity under other provisions of law. This section also explains that by
that substantially deviates from the This section explains that you are accepting the grant, you agree to fully
activity the grant allows. This is a strictly liable to the United States for indemnify or hold the United States
requirement of previous section damage or injury up to $2 million for harmless for liability, damage, or claims
2803.2(b) that we inadvertently omitted any one incident. BLM will determine arising in connection with your use and
from the proposed rule. liability for any amount in excess of this occupancy of the right-of-way areas.
We amended paragraph (d) of this strict liability cap through the ordinary The provisions of this section do not
section by adding a better explanation of rules of negligence under section limit or exclude other remedies. This
a ‘‘certification of construction.’’ 504(h)(2) of FLPMA. provision is consistent with existing
We also added a new paragraph (e) to The proposed rule would have policy and previous section 2803.1–5.
this section. This provision is in increased the strict liability cap from $1 We inadvertently omitted it from the
previous section 2803.2(c). We million to $5 million. Many comments proposed rule and therefore added it
inadvertently omitted it from the indicated that the increase was too here.
proposed rule. great. The final rule increases the strict We reworded and reorganized
Several commenters objected to being liability cap from the previous $1 proposed sections 2807.12(b) and (f) by
required to contact BLM every time they million cap to a $2 million cap. We consolidating the provisions describing
have to install a piece of equipment on arrived at the $2 million cap by looking the strict liability items that will appear
existing poles on the lands in the grant at the increases from 1980 (when the in a grant into final section 2807.12(b)
to correct for hazardous situations or cap was instituted) to 2004 in both the and by making it clear that the financial
low clearances. Other commenters had IPD–GDP (+ 105%) and the CPI–U limitations on damages specified in the
the same concerns over small buildings (+ 138%). Adjusting the $1 million cap grant will be commensurate with the
used for storage. Some of the by the change in the IPD–GDP over this hazard or risk BLM determines. We also
commenters said this type of period equals $2,050,000. Adjusting the added wording to make clear that the
information is not essential to BLM. The $1 million cap by the change in the CPI– strict liability cap applies for any one
contact requirement of section U over this same period equals incident. Previous section 2803.1–5(b)
2807.11(b) applies only to uses that are $2,380,000. Therefore, we believe that stated that the limitation was for any
not authorized in an existing grant. The increasing the strict liability cap to $2 one event. We inadvertently omitted the
National Environmental Policy Act million is reasonable. wording in the proposed rule and
requires BLM to assess the impacts of To keep the cap current with changes therefore added it to the final rule to be
uses of the public lands before in economic conditions, the final rule consistent with ongoing policy and
authorizing or allowing such uses and applies an annual adjustment factor previous regulations.
this contact requirement is essential to based on the change in the CPI–U, as of We revised proposed section
enable BLM to meet its obligations July of each year (the difference in CPI– 2807.12(h) to add tribal governments
under this statute. U from July of one year to July of the and to remove the statement that state
following year). This increase (rounded and local governments may be excepted
Section 2807.12 If I Hold a Grant, for from the requirements of section
to the nearest $1,000) will take into
What Am I Liable? 2807.12. This exception language may
account inflation and will provide better
This section explains your liabilities protection of Federal lands. cause confusion and is not consistent
as a grant holder. You are liable to the The $2 million cap does not apply to with previous section 2803.1–5(f) or
United States for any damage or injury the release or discharge of hazardous BLM policy. Liabilities of state, tribal,
it incurs in connection with your use substances on or near the grant, or and local governments are discussed in
and occupancy of the right-of-way. where liability is unrestricted under final section 2807.13.
Similarly, you are liable to third parties other laws. Except for the changes in the increase
for any damage or injury they incur in This section explains that the rules of in the maximum strict liability financial
connection with your use and subrogation apply in cases where a third limitation from $1 million to $2 million,
occupancy of the right-of-way. party caused the damage or injury. This and the provision for no maximum

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limitation on strict liability resulting was principally that of another permit common law, strict liability has been
from damages or injuries caused by the holder or another party. The regularly applied to abnormally
release or discharge of hazardous commenters also said the final rule dangerous activities, irrespective of the
substances or as otherwise provided by should make clear how the standard liable party’s ability to control access to
law, the final rule is substantially will operate where there are multiple the activity. In fact, it is the inability to
equivalent to previous section 2803.1–5. permit holders on a site and the polluter control the harm that, in turn, can
Several commenters said that final is unable to pay damages. Other justify imposing strict liability in the
section 2807.12(a) should make clear commenters said that the normal first place. Certain activities undertaken
that the grant holder is only liable to negligence rules are adequate protection on FLPMA and MLA rights-of-way, such
third parties for damage or injury that is for landowners and for holders of as transmitting electricity, transporting
a result of the grant holder’s intentional nonfederal rights-of-way in the United oil and gas, and using and storing
negligence. The provision regarding States and that the Federal Government hazardous materials, are inherently
liability to third parties is a requirement should be bound by the same standard. dangerous. Strict liability for such
of previous section 2803.1–5(d). The The strict liability standard in section activities is both necessary and
proposed rule clarified this section, and 2807.12(b) is specifically authorized by appropriate to ensure that the cost of
the proposal has been carried forward section 504(h)(2) of FLPMA (43 U.S.C. remediation and restoration falls on the
into the final rule intact. 1764(h)(2)), which provides: grant holder, rather than the public, and
Numerous commenters objected to the to encourage grant holders to take
Any regulation or stipulation imposing
strict liability provisions of proposed extraordinary care when conducting
liability without fault shall include a
section 2807.12(b). Several commenters maximum limitation on damages inherently dangerous activities on
said that the strict liability provisions in commensurate with the foreseeable risks or public lands. For these reasons, BLM is
this rule are arbitrary and capricious hazards presented. Any liability for damage retaining the strict liability standard in
and that a right-of-way grant holder or injury in excess of this amount shall be this final rule and is not adopting a
cannot be held responsible for activities determined by ordinary rules of negligence. negligence or knowing and willful
on the right-of-way if he does not have BLM regulations addressing strict standard, as suggested by commenters.
the ability to limit access to that right- liability have been in effect since 1980. In addition, BLM points out that
of-way. Commenters said that if the Previous section 2803.1–5 authorized Congress authorized the imposition of
holder is to be held strictly liable, he BLM to impose strict liability on grant strict liability in section 28(x) of the
must be allowed to secure and control MLA, 30 U.S.C. 185(x), and imposed a
holders for any activity or facility
the right-of-way. Several commenters policy of strict liability in section 204(a)
within the right-of-way that presented,
said that the liability provisions should of the Trans-Alaska Pipeline
in the agency’s discretion, a foreseeable
not apply to cases involving negligence Authorization Act, 43 U.S.C. 1653(a).
hazard or risk of damage or injury to the
by a third party and objected to being Senate Report 94–583, part of the
United States. In the preamble to the
held liable for costs arising from legislative history of FLPMA, notes the
1980 rule, BLM addressed and rejected
damages, injuries, fees, and costs that similarities (at page 73) between the
concerns similar to those expressed by
are beyond their control. One strict liability provisions of FLPMA and
the current commenters that a holder’s
commenter said that any responsibility the MLA. In the preamble to the 1979
inability to restrict access to the right-
for liability should be limited to acts of proposed rule, BLM acknowledged that
or under the control of the permit of-way precluded the imposition of
the strict liability provisions of FLPMA
holder, or acts of its customers. The strict liability. BLM stated at 45 FR
were modeled after the MLA, as
commenter said that removing the 44518, 44524 (July 1, 1980):
amended (see 44 FR 58106, 58113).
Federal Government’s liability as Section 504(h) of the Federal Land Policy One commenter requested that BLM
landowner is unfair and shifts liability and Management Act gave the Secretary of explain the terms ‘‘primarily’’ and
to the innocent permit holder. One the Interior discretionary authority to impose ‘‘except as otherwise provided by law’’
commenter said that the strict liability strict liability in connection with right-of- in proposed section 2807.12(b)(1). As
way grants or temporary use permits under
standard is unfair and should be the circumstances described. The decision to
noted above, that paragraph states that
replaced with an ordinary negligence exercise the authority was made after careful BLM will not impose strict liability for
standard. The commenter said that just consideration of all aspects of the issue. The damage or injury resulting primarily
as the right-of-way grantee does not overriding reason for imposing strict liability from an act of God, act of war, or the
enjoy full ownership of the right-of-way, was the need to provide the Federal negligence of the United States, except
it should not bear full liability for all Government and the tax paying public with as otherwise provided by law. BLM
damage. The commenter said that the protection from damages resulting from extra intends that the word ‘‘primarily’’ have
strict liability standard presents a hazardous activity on the public lands by its commonly accepted meaning.
potentially crippling expense to the those holding a right-of-way grant or ‘‘Primarily’’ means principally or
nation’s rural electric cooperatives that temporary use permit and gaining a benefit chiefly. Accordingly, BLM will not
from such use.
may force some of them to choose not impose strict liability where, for
to apply for right-of-way grants, and that Additional support for imposing strict example, the negligence of the United
could result in depriving some rural liability is in the preamble to the 1979 States was the principal cause of the
customers of electricity. The commenter proposed rule at 44 FR 58106, 58113 loss or damage. Strict liability would be
said that under an ordinary negligence (October 9, 1979). appropriate, in contrast, where the
standard, grantees would not be liable BLM continues to believe that strict United States’s negligence was a
for damages that could not be prevented liability is properly imposed on a holder contributory factor, provided that it was
by reasonable measures and that for certain foreseeable risks and hazards. not the principal cause. BLM expects
standard was fairer to grantees. The The fact that a holder may not always that the law of the state where the right-
same commenter said that an ordinary be able to control access to the right-of- of-way is located will govern the rules
negligence standard is not inconsistent way does not mean that strict liability regarding fault.
with FLPMA. Several commenters said may not be applied to specified ‘‘Except as otherwise provided by
that there should be a specific exclusion activities or facilities associated with law’’ means, for example, that if the acts
of liability if the cause of the pollution the right-of-way area. Under the or omissions giving rise to damage or

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injury support a claim under a strict increase recognizes inflation that has that it is not clear whether the Federal
liability statute, such as CERCLA, the occurred since 1980 and the increasing Government is entitled to recover such
negligence of the United States will not complexity involved in responding to costs under the applicable laws and that
preclude a strict liability claim. incidents that damage or threaten life, it would be more logical for the grantee
One commenter remarked that BLM property, or the environment. to assume responsibility/liability
should clarify whether the term ‘‘right- As noted earlier, the proposed rule consistent with ‘‘applicable law.’’ The
of-way area,’’ as used in proposed included an increase in the liability final rule replaces ‘‘on’’ with ‘‘to’’ in the
sections 2807.12(b) and 2807.12(f) (final limitation to $5 million. A number of cited phrase to make clear that strict
sections 2807.12(b) and 2807.12 (e)), commenters objected to the increase and liability would include costs incurred
includes land not specific to the said that it would disproportionately by the United States for a threat that
holder’s grant. BLM intends that the affect small right-of-way holders who occurred to non-federal land. Examples
phrase ‘‘right-of-way area’’ in these may not have access to commercial might include a fire or landslide that
paragraphs refer to the land specifically insurance. In the final rule, we reduced started on the right-of-way and migrated
included in the holder’s grant. the increase in the strict liability off Federal land, causing damage or
Many commenters objected to the limitation to $2 million in an effort to injury to non-federal land. A similar
proposed raising of the liability ceiling reduce adverse impacts to grant holders policy was set forth in the previous
to $5 million from the current $1 while still providing the Federal regulations at section 2803.1–5(b). We
million, and several even objected to the Government and the tax-paying public have not adopted the suggestion that the
previous regulation’s $1 million ceiling. with reasonable protection from cited phrase be removed from the final
The commenters stated that BLM had damages resulting from activities and rule.
given no evidence that there was a need facilities on the public lands. Inflation Several commenters said that we
for the increase and that the increase alone warrants the increase to $2 should be consistent in the regulations
would discourage, if not prevent, oil million. The IPD–GDP has increased and use either the term ‘‘hazardous
and gas exploration and small electric 105 percent from 1980 to 2004 and the substance’’ or ‘‘hazardous materials.’’
cooperatives from serving rural areas. CPI–U has increased 138 percent during The commenters said that the term
Some of the commenters said the this same period. BLM believes that the ‘‘hazardous substance’’ is not defined in
liability cap increase would CPI–U is a good measure to use in the rule. One commenter said that the
disproportionately affect small right-of- estimating inflation in the costs to ‘‘collective definition’’ of hazardous
way holders who may not have access control or abate conditions which materials is a problem because it is
to, or be able to afford, the required threaten life, property, or the doubtful that all the laws referenced in
commercial insurance. Under this final environment. The $2 million strict the definition call for unlimited
rule, we would only include a strict liability limit will be updated annually financial liability. The commenter said
liability provision in a grant after by this index. that in the proposed rule BLM cites a
analyzing the foreseeable hazard or risk A few commenters supported the case decided under CERCLA for the
of damage or injury to the United States. ‘‘polluter pays’’ strict liability standard proposition that there are no limits to
It is not common for BLM to issue grants for hazardous materials. The cost recovery under CERCLA, but then
with strict liability provisions. commenters said that because uses this rationale to support the same
Therefore, this provision will not have hazardous materials are intrinsically principle with respect to liability under
a significant effect on a substantial dangerous to the public, accidents any of the other statutes in the
number of small entities. The scarcity of involving them must be prevented at all definition of ‘‘hazardous materials.’’ To
cases challenging BLM’s application of costs and a strict liability standard gives the extent that these other laws would
the strict liability provisions of section the proper incentive to prevent such place a limitation on one’s financial
504 suggests that the agency has applied accidents. The commenters said that exposure, proposed section 2807.12(f)
these provisions in a reasonable strict liability eliminates lengthy, removed that limitation by the
manner. expensive litigation which is costly to collective definition of ‘‘hazardous
Section 504(h)(2) of FLPMA (43 both the grantee and to BLM. materials,’’ the commenters continued.
U.S.C. 1764(h)(2)) requires that any Commenters also said that it is The commenters said that this is
regulation imposing strict liability inappropriate to place a cap on strict inappropriate. One commenter said that
without fault include a maximum liability even for non-hazardous because this section causes uncertainty
limitation on damages commensurate materials. The commenters said that if for the public and BLM, it should be
with the foreseeable risks or hazards a company seeks the privilege of using deleted.
presented. The ordinary rules of the public’s land for commercial use, it In response to those comments, BLM
negligence determine any liability for should be strictly liable for whatever has changed the language of proposed
damage or injury in excess of this damages occur as a result of such use. section 2807.12(f) (final section
amount. In 1980, BLM instituted a $1 As stated earlier, the cap on strict 2807.12(b)(3)) to reference ‘‘hazardous
million ceiling on strict liability cases. liability is a requirement of section substances,’’ as defined by CERCLA and
At all times, however, damages could 504(h)(2) of FLPMA. The cap does not not ‘‘hazardous materials.’’ BLM notes,
exceed this $1 million limit if apply where another applicable statute however, that the $2 million cap also
determined by ordinary rules of (such as CERCLA) provides for may not be applicable to other specified
negligence. unlimited damages, or otherwise pre- pollutants, contaminants, and
The previous regulations, issued in empts the damage limits in FLPMA. substances where controlling law so
July 1980, established a maximum strict Several commenters said that in the provides, such as section 1002(a) of the
liability limit of $1 million for any one final rule we should strike the phrase Oil Pollution Act (33 U.S.C. 2702(a)).
event. This final rule raises the amount ‘‘even if the threat occurs on areas that Where a release would give rise to a
to $2 million for any one incident. (We are not under federal jurisdiction’’ claim under Federal or state law that
changed the term ‘‘event’’ to ‘‘incident’’ because the Federal Government has no provides for unlimited damages, or
in the final rule to be more consistent jurisdiction or right to impose strict otherwise pre-empts the damage limits
with the terminology in CERCLA and liability on any property other than contained in FLPMA, the limitations of
other environmental legislation.) The Federal property. One commenter said FLPMA will not apply.

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Several commenters found the One commenter asked why there is an decisions based on environmental
provisions of proposed section exception for corporate stockholders findings, including whether to seek
2807.12(g) (final sections 2807.12(b)(3) being jointly and severally liable to the renewal of the permit at the current site
and (4)) to be confusing. That proposed United States when the holder cannot location. Under the previous and final
section stated that a holder is strictly satisfy claims for injury or damage. The rule, existing holders are subject to
liable for all costs above $5 million exception for corporate stockholders changes in regulations that occur mid-
(now $2 million in the final rule) that was first promulgated in 1980 as 43 CFR term. No phase-in is appropriate.
accrue because of negligence regarding 2803.1–4(g) and has been effective since Previous section 2801.2 and proposed
hazardous substances. The commenters that time, although the citation changed section 2805.10(c)(1) (final section
said that this rule adds a new concept in 1987 to 43 CFR 2803.1–5(g). The 2805.12(a)) state that an applicant, by
of negligence to this provision which for exception has been carried forward into accepting a right-of-way grant, agrees to
the most part imposes strict liability. the final rule. It is a fundamental comply with and be bound by all
The commenters also said the rule principle of corporate law that a applicable Federal and state laws,
should make clear whose negligence corporation is a legal entity distinct including regulations, that may be
triggers this provision. We agree with from its owners. Owners of a issued during the term of the grant. All
the commenters. The purpose of final corporation are its stockholders. We BLM grants contain the following
sections 2807.12(b)(3) and (4) is to preserve this distinction in final section provision: ’This grant or permit is
implement section 504(h)(2) of FLPMA 2807.12(c) and accordingly did not issued subject to the holder’s
(43 U.S.C. 1764(h)(2)). The final rule, amend this rule to make corporate compliance with all applicable
accordingly, removes the reference to stockholders jointly and severally liable regulations contained in Title 43 Code
negligence regarding hazardous with the corporation. of Federal Regulations part 2800.’’
substances and states that any liability Several commenters said that Although the increase in the strict
in excess of the $2 million strict liability proposed section 2807.12(e) (final liability cap will occur mid-term for
cap will be determined by the ordinary section 2807.12(d)) should be deleted many grant holders, holders of FLPMA
rules of negligence. since multiple holders should be jointly rights-of-way have at all times been
In referring to the strict liability and severally liable only to the extent liable for amounts in excess of the
provisions of the proposed rule, several applicable law would impose such previous $1 million cap. Liability above
commenters asked if there have been liability. We first published provisions that amount would have been based on
verifiable losses to the U.S. Treasury as similar to those in this paragraph in our ordinary rules of negligence.
a result of rights-of-way crossing Federal regulations in 1980 at 43 CFR 2803.1– One commenter said that ‘‘* * *
land. BLM has not researched case 4(i). It has been effective since then, because BLM can apply to federal
records to determine the extent of although the citation changed in 1987 to agencies only those provisions that are
unreimbursed costs the United States 43 CFR 2803.1–5(i). BLM has retained applicable to a federal entity, the
has incurred stemming from damage or the provision as final section 2807.12(d) provisions regarding liability, guarantee
injury associated with rights-of-way because it has provided clarity that bonds, releases of third party
crossing Federal land. The intent of the would be lacking if the commenter’s environmental damage, and other such
strict liability provisions is to help view was adopted. provision should not apply to federal
prevent the public from incurring such Several commenters said that the final agencies. An agency’s liability for torts,
unreimbursed costs in the future in rule should guarantee that the grant for example, is covered by the Federal
those situations where a foreseeable holder has sufficient authority to Tort Claims Act.’’ BLM agrees generally
hazard or risk of damage or injury to the mitigate its liability for fires through with the comment. Final section
United States can be identified at the appropriate maintenance of vegetation. 2809.10 states that ‘‘The regulations in
time a right-of-way grant is authorized. In processing an application for a grant, this part apply to Federal agencies to the
Several commenters said that the joint BLM will attempt to incorporate terms extent possible * * *.’’ To the extent,
and several liability provision of and conditions relative to the therefore, that the liability provisions of
proposed section 2807.12(c) ‘‘* * * management of vegetation that balance the rule are not appropriate for Federal
ignores corporate separateness, a the grant holder’s need to minimize its agencies, they will not apply.
fundamental principle of corporate law. liability exposure for fires with other
Each corporation must be held environmental concerns that might be Section 2807.13 As Grant Holders,
separately liable.’’ The provisions of present in the right-of-way area. Because What Liabilities Do State, Tribal, and
proposed section 2807.12(c) to which resource issues and concerns can vary Local Governments Have?
the commenters object were first widely among locations, BLM does not This section explains that state, tribal,
promulgated in 1980 at 43 CFR 2803.1– believe that it is practical or would or local governments or their agency or
4(g) and have been effective ever since protect the public interest to incorporate instrumentality are liable to the fullest
that time, although the citation changed such a regulation of general extent the law allows at the time that
in 1987 to 43 CFR 2803.1–5(g). This applicability in this final rule. BLM issues the grant. If a state, tribal,
section is necessary to ensure that, Several commenters said that BLM or local government or their agency or
where the loss or damage is substantial should amend the rule so that current instrumentality does not have the legal
and potentially exceeds the assets of the permit holders would be subject only to power to assume full liability, it must
grant holder, related entities will also be current BLM regulations on liability repair damages or make restitution to
liable. It also ensures that between grant until they renew their permit(s). the fullest extent of its powers. Senate
holders and the public, the grant holder Alternatively, the commenters said that Report No. 94–583 notes at 73, in
and not the public will pay for the environmental liability under the commenting on section 403(g) of S. 507,
rehabilitating damage to the affected rule should be phased-in over the a predecessor to section 504(h)(1) of
lands. Similar liability is imposed at existing term of a holder’s right-of-way FLPMA, that governmental entities may
paragraph 28(x) of the MLA, 30 U.S.C. permit. They said that this would afford not be legally able to assure protection
185(x), and at section 204(c) of the innocent permit holders an opportunity of the United States because of
Trans-Alaska Pipeline Authorization to assess the environmental condition of limitations in state law or State
Act, 43 U.S.C. 1653(c). the site and make reasonable business Constitutions.

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This section also explains that BLM right-of-way encumbers to another (B) Improve its practice of
may require a state, tribal, or local Federal agency, BLM may, after communicating to grant holders its
government to provide a bond, reasonable notice to you, transfer intent to transfer, exchange, or sell
insurance, or other acceptable security administration of your grant for the lands; and
to: lands BLM formerly administered to (C) Grant easements in perpetuity to
(A) Protect the liability exposure of another Federal agency, unless doing so existing grantees before transferring or
the United States to claims by third would diminish your rights. If BLM require transferees to grant easements
parties arising out of your use and determines your rights would be when there is a transfer.
occupancy of the right-of-way; diminished by such a transfer, BLM can BLM agrees that the description of
(B) Cover any losses, damages, or still transfer the land, but retain procedures in the proposed rule at
injury to human health, the administration of your grant under section 2807.14 for maintaining grants
environment, and property incurred in existing terms and conditions. on lands that are exchanged or
connection with your use and It also explains that if there is a otherwise transferred from BLM could
occupancy of the right-of-way; and proposal to transfer the land your right- be improved. We rewrote this section
(C) Cover any damages or injuries of-way encumbers out of Federal and added detail to make it clearer. We
resulting from the release or discharge ownership, BLM may, after reasonable added a new sentence at the end of final
of hazardous materials incurred in notice to you and in conformance with section 2807.15(a) to describe the
connection with your use and existing policies and procedures, do one existing procedure when BLM’s transfer
occupancy of the right-of-way. of the following three things: of land to another Federal agency would
Based on the state, tribal, or local (A) Transfer the land subject to your diminish a grant holder’s rights. In this
government’s record of compliance and grant. In this case, administration of case, BLM could transfer the land, but
changes in risk and conditions, BLM your grant for the lands BLM formerly retain administration of the grant under
may require it to increase or decrease administered is transferred to the new existing terms and conditions so that
the amount of its security. The owner of the land; there would be no change in
provisions of this section do not limit or (B) Transfer the land, but BLM retains administration of the grant.
exclude other remedies. administration of your grant; or BLM also agrees that we could
Except for minor editorial changes (C) Reserve to the United States the improve our practice of communicating
and some reorganizing of proposed land your grant encumbers, and BLM to grant holders our intent to transfer,
paragraphs (b)(1) through (b)(3), this retains administration of your grant. exchange, or sell lands. We added the
section is the same as in the proposed This section also explains that BLM phrase ‘‘after reasonable notice to you’’
rule. or, if BLM no longer administers the to sections 2807.15(a) and (b) to specify
land, the new land owner may negotiate that BLM will always provide advance
Section 2807.14 How Will BLM Notify new grant terms and conditions with notice to affected grant holders of any
Me If Someone Else Wants a Right-of- you. This may include increasing the proposal to transfer land encumbered by
Way Grant for Land Subject to My Grant term of your grant, should you request their grants.
or Near or Adjacent to It? it, to a perpetual grant under section We added section 2807.15(c) in
This section explains that BLM will 2806.23(c) of this part or providing for response to the third comment above.
notify you in writing when it receives an easement. We added the phrase ‘‘for The new paragraph describes existing
an application for a right-of-way grant an easement’’ to the end of the last practices. Upon the request of a grant
for land subject to your grant or near or paragraph in this section to allow BLM holder, BLM will consider extending the
adjacent to it. BLM will consider your to issue easements in cases where an term of an existing grant to that of a
written recommendations as to how the easement would be a more appropriate perpetual grant before transferring the
proposed use affects the integrity of, or instrument than a perpetual grant. land encumbered by the grant. If an
your ability to operate, your facilities. Section 103 of FLPMA (43 U.S.C. 1702 affected grant holder and the proposed
The notice will contain a time period (f)) defines ‘‘right-of-way’’ to include new land owner can negotiate a new
within which you must respond. The easements and therefore recognizes that authorization to replace the existing
notice may also inform you of easements are an acceptable BLM BLM grant, BLM can arrange the timing
additional opportunities to comment. authorization. of approvals so that termination of the
We added this section to the final rule We proposed this section as section BLM grant and its replacement by the
to provide notice of BLM’s long- 2807.14 and have renumbered it to new authorization occur at the same
established policy of informing existing account for new section 2807.14, as time the transfer of the land is
grant holders of new applications for discussed above. We also reworded completed.
grants that might affect the use of paragraphs (a) and (b) and added a new Section 2807.16 Under What
existing rights-of-way. This policy helps paragraph (c) in response to public Conditions May BLM Order An
BLM to avoid authorizing a new grant comments. Paragraphs (a) and (b) are Immediate Temporary Suspension of
that would adversely affect the integrity consistent with previous section 2803.5. My Activities?
of existing uses or the ability of existing Under paragraph (b), the option BLM
grant holders to operate their facilities. chooses for lands transferred out of This section explains that if BLM
The recommendations of existing grant Federal ownership depends on the determines that you have violated one
holders are desirable to help ensure that circumstances of the proposed transfer or more of the terms, conditions, or
this does not happen. and the grant involved. Our choice stipulations of your grant, we can order
would be that which would be the least an immediate temporary suspension of
Section 2807.15 How Is Grant activities within the right-of-way area to
disruptive to the parties involved and
Administration Affected If the Land My protect public health or safety or the
that which is in the public interest.
Right-of-Way Encumbers Is Transferred Several commenters said that in the environment. BLM can require you to
to Another Federal Agency or Out of final rule BLM should: stop your activities before holding an
Federal Ownership? (A) Clarify procedures for maintaining administrative proceeding on the
This section explains that if there is rights-of-way on lands that are matter. Existing regulations and section
a proposal to transfer the land your exchanged or transferred; 506 of FLPMA authorize BLM to order

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an immediate temporary suspension 2803.3 since 1980 and is supported by regulations or any terms, conditions, or
without an administrative proceeding. section 506 of FLPMA (43 U.S.C. 1766). stipulations of the grant (such as rent
The section also states that BLM may Only violations that cause or threaten payments), or if you abandon the right-
issue an immediate temporary damage or injury to public health, of-way.
suspension order orally or in writing to safety, or the environment can lead to This section also explains that a grant
you, your contractor or subcontractor, or an immediate temporary suspension of also terminates when:
to any representative, agent, or activities. Under the rule, BLM would (A) The grant contains a term or
employee representing you or not have the authority to issue an condition that has been met that
conducting the activity. When you immediate temporary suspension order requires the grant to terminate;
receive the order, you must stop the for any other type of violation. Although (B) BLM consents in writing to your
activity immediately. BLM will, as soon OSHA has responsibility for request to terminate the grant; or
as practical, confirm an oral order by occupational health and safety in the (C) It is required by law to terminate.
sending or hand delivering to you or workplace, it is not charged with Your failure to use your right-of-way
your agent a written suspension order responsibility for health and safety in for its authorized purpose for any
explaining the reasons for it. other situations. BLM’s authority to continuous 5-year period creates a
You may file a written request for suspend a holder’s activities to protect presumption of abandonment. BLM will
permission to resume activities at any public health or safety or the notify you in writing of this
time after BLM issues the order. In the environment is expressly granted in presumption. You may rebut the
request, state the facts supporting your section 506 of FLPMA. This includes presumption of abandonment by
request and the reasons you believe that the authority to ensure operations on proving that you used the right-of-way
BLM should lift the order. BLM must rights-of-way are performed safely and or that your failure to use the right-of-
grant or deny your request within 5 in a manner that protects users of public way was due to circumstances beyond
business days after receiving it. If BLM lands. your control, such as acts of God, war,
does not respond within 5 business Several commenters said that BLM or casualties not attributable to you.
days, BLM has denied your request. You must not be allowed to suspend You may appeal a decision under this
may appeal the denial under section activities without providing an section under section 2801.10 of this
2801.10 of this part. opportunity for an administrative part.
The immediate temporary suspension hearing, unless it determines that the This section was proposed as section
order is effective until you receive operator has willfully and knowingly 2807.16. In addition to minor editorial
BLM’s written notice to proceed with created serious permanent damage to changes, we made a number of changes
your activities. the environment or public health and and additions to improve the clarity and
This section was proposed as section safety following a notice. Commenters completeness of the process and to
2807.15. In the final rule we replaced also said that the correct standard is that make it more consistent with the
the term ‘‘promptly’’ in paragraph (b), BLM must have ‘‘convincing evidence’’ previous sections 2803.4(a), (b), and (c).
describing when BLM will follow an before suspending activities. One In this final rule we moved proposed
oral order with a written one, with the commenter said that BLM did not have section 2807.16(b) to final section
phrase ‘‘as soon as practical.’’ This is authority to temporarily suspend 2807.18, discussed below.
more consistent than the proposal with activities on a grant to protect public We also modified proposed paragraph
previous section 2803.3(b). We also health and safety or the environment (a) by adding the words ‘‘or terminate’’
reorganized proposed paragraphs (c), without an administrative hearing. We and ‘‘or if you abandon the right-of-
(d), and (e) to make them clearer. We disagree with these comments. Section way.’’ Adding ‘‘or terminate’’
moved proposed paragraph (c) to final 506 of FLPMA provides authority for consolidates proposed paragraph (c)(3)
paragraph (d) and consolidated this section of the rule. It states: into paragraph (a) and is more
proposed paragraph (e) with proposed consistent with previous section
If the Secretary concerned determines that
paragraph (d) because the ‘‘request’’ in an immediate temporary suspension of 2803.4(b). The phrase ‘‘or if you
proposed paragraph (e) is identical to activities within a right-of-way for violation abandon the right-of-way’’ is part of
the request in proposed paragraph (d). of its terms and conditions is necessary to previous section 2803.4(b), and refers to
The result is final paragraph (c). With protect public health or safety or the a concept which we addressed only
the exception of minor editorial changes environment, he may abate such activities indirectly in proposed section
and the reorganization of final prior to an administrative proceeding. 2807.16(d). Our addition of this phrase
paragraphs (c) and (d) explained above, Section 506 makes clear that BLM clarifies the purpose of proposed section
this section of the final rule remains as may suspend and abate a holder’s 2807.16(d).
proposed. The section is consistent with activities prior to an administrative We amended proposed paragraph
previous section 2803.3. hearing. This provision also establishes (c)(2) (final paragraph (b)(2)) to provide
Several commenters said that the the standard BLM uses in determining that BLM’s acceptance of your request to
words ‘‘violation of one or more of the whether to issue an immediate terminate a grant must be in writing. It
terms of the grant’’ are too broad and temporary suspension order, namely is longstanding BLM policy that such
subject to abuse. Commenters also said that such an order is necessary ‘‘to acceptances be in writing.
that safety is the Occupational Safety protect public health or safety or the We consolidated proposed paragraph
and Health Administration’s (OSHA) environment.’’ Consequently, we have (c)(3) with paragraph (a) (see discussion
responsibility. We disagree. Both the not adopted the alternate standards above) and added that your grant
proposed and final rules state that when commenters suggested. terminates when it is ‘‘required by law
there is a violation of one or more of the to terminate.’’ We added this language
terms, conditions, or stipulations of a Section 2807.17 Under What to final paragraph (b)(3) to improve the
grant, BLM may order an immediate Conditions May BLM Suspend or completeness of the section and reflect
temporary suspension of activities ‘‘to Terminate My Grant? legal requirements contained in certain
protect public health or safety or the This section explains that BLM may pre-FLPMA right-of-way statutes.
environment.’’ This provision is not suspend or terminate your grant if you Proposed paragraph (d) is now
new. It has been in previous section do not comply with applicable laws and paragraph (c) to account for the transfer

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of proposed paragraph (b) to final last sentence of paragraph (a) which occurrence of a fixed or agreed-upon
section 2807.18. now reads, ‘‘The notice will give you a condition, event, or time.’’
We added a new paragraph (d) to reasonable opportunity to correct any We received no substantive comments
point out that you may appeal a BLM noncompliance or start or resume use of on this section.
decision issued under this section in the right-of-way’’ to make the section Section 2807.19 When My Grant
accordance with section 2801.10 of this consistent with FLPMA. Section 506 of Terminates, What Happens To Any
part. Any adverse BLM decision is FLPMA states: Facilities on It?
appealable under the existing 43 CFR Prior to commencing any proceeding to
part 4. We added this paragraph to give This section explains that after your
suspend or terminate a right-of-way the
you additional notice of your appeal Secretary concerned shall give written notice
grant terminates, you must remove any
rights. to the holder of the grounds for such action facilities within the right-of-way within
We received no substantive comments and shall give the holder a reasonable time a reasonable time, as determined by
on this section. to resume use of the right-of-way or to BLM, unless BLM instructs you
comply with this title, condition, rule, or otherwise in writing, or termination is
Section 2807.18 How Will I Know That regulation as the case may be. due to non-payment of rent.
BLM Intends To Suspend or Terminate After removing the facilities, you
My Grant? We modified the first sentence of
must remediate and restore the right-of-
This section explains that before BLM paragraph (b) to state that before
way area to a condition satisfactory to
suspends or terminates your grant under suspending or terminating a grant
BLM, including the removal and clean
section 2807.17(a) of this part, we will ‘‘issued as an easement,’’ BLM must
up of any hazardous materials.
send you a written notice stating that we refer the matter to the Office of Hearings If you do not remove all facilities
intend to suspend or terminate your and Appeals for a hearing. Proposed within a reasonable period as
grant. We will give the grounds for such section 2807.17(b) referred to grants determined by BLM, we may declare
action. The notice will give you a ‘‘issued before October 21, 1976, any them to be the property of the United
reasonable opportunity to correct any subsequent grants issued as an States. However, you are still liable for
noncompliance or start or resume use of easement, and grants issued under part the costs of removing them and for
the right-of-way, as appropriate. 2880 of this chapter.’’ We moved the remediating and restoring the right-of-
Before BLM suspends or terminates a provisions for hearings regarding grants way area.
grant issued as an easement, BLM must issued under part 2880 to final section This section was proposed as section
give you written notice and refer the 2886.18. The proposed rule was in error 2807.18. In addition to minor editorial
matter to the Office of Hearings and by including all grants ‘‘issued before changes, we made a number of changes
Appeals for a hearing before an October 21, 1976,’’ since only those pre- and additions to make the rule clearer,
administrative law judge (ALJ) under 5 October 21, 1976 grants that were issued including dividing the section into three
U.S.C. 554. No hearing is required if the as easements are subject to the hearing paragraphs. We replaced the terms
terms of the grant provided for requirement. Section 506 of FLPMA ‘‘improvements’’ and ‘‘structures and
termination on the occurrence of a fixed makes this clear. Previous section improvements’’ with the term
or agreed-upon condition, event, or 2803.4(e) refers to ‘‘a right-of-way grant ‘‘facilities’’ to make the rule clearer and
time. If the ALJ determines that grounds that is under its terms an easement.’’ consistent with other provisions in the
for suspension or termination exist and Therefore, the final rule is more rule and since ‘‘facility’’ is defined in
such action is justified, BLM will accurate than the proposal and is more section 2801.5 of these regulations.
suspend or terminate the grant. consistent with the previous regulation. We added a clause to the last sentence
This section was proposed as section We also modified the same sentence by of paragraph (a) providing that you must
2807.17. In addition to minor editorial adding that a hearing before an not remove any facilities or equipment
changes, we made a number of changes administrative law judge would be from the right-of-way area if termination
and additions to improve the accuracy conducted under 5 U.S.C. 554. This of your grant was due to non-payment
and completeness of the process citation is set forth in section 506 of of rent. This is a requirement of
description and to make it more FLPMA. Previous section 2803.4(e) previous section 2803.1–2(h). We added
consistent with previous sections stated that the hearing would be the clause to make the section clearer
2803.4(d) and (e). ‘‘pursuant to 43 CFR part 4’’ and the and to provide a cross-reference to final
We modified the first sentence of existing regulations at 43 CFR 4.1(a) section 2806.13(c), where similar
proposed paragraph (a) by adding the provide for hearings ‘‘to be conducted language also occurs.
reference ‘‘under § 2807.17(a)’’ to pursuant to 5 U.S.C. 554.’’ We made the We modified paragraph (c) to specify
indicate those suspensions and change to make the final regulation that the reasonable period for the
terminations for which BLM will send more complete than the proposal and removal of facilities will be ‘‘as
a written notice. Previous section more consistent with FLPMA and the determined by BLM.’’ This is the same
2803.4(d) stated ‘‘Before suspending or previous regulation. language used in previous section
terminating a right-of-way grant We added a new sentence to 2803.4–1; we added it to be consistent
pursuant to paragraph (b) of this section, paragraph (b), providing that a hearing with that section.
the authorized officer shall give the is not required if the grant contained Commenters said that the standard
holder written notice that such action is terms for termination on the occurrence ‘‘any condition satisfactory to BLM’’ in
contemplated and the grounds therefor of a fixed or agreed-upon condition, paragraph (b) is too broad and subject to
and shall allow the holder a reasonable event, or time. We added it to accurately abuse. The commenters said that BLM
opportunity to cure such describe the hearing process and to has not presented evidence to justify
noncompliance.’’ We inadvertently reflect longstanding BLM practice. The replacing the current standard of
omitted the reference from the proposed final language is consistent with section ‘‘restoring the area to a condition as near
rule and added it in this rule to be 506 of FLPMA which states, ‘‘No as possible to the original condition.’’
consistent with previous regulations. administrative proceeding shall be They said that if BLM keeps the change
We added the phrase ‘‘or start or required where the right-of-way by its in the rule, it should not also require the
resume use of the right-of-way’’ to the terms provides that it terminates on the former right-of-way holder to pay for

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removal. We disagree. The restoration clear when BLM issues a new grant and provides authority, with the consent of
standard in previous section 2803.4–1 is when BLM amends an existing grant. the grant holder, for BLM to cancel the
‘‘to a condition satisfactory to the We added the phrase ‘‘or obtain a new pre-FLPMA grant and in its place issue
authorized officer’’ and has been in grant’’ to the title of the section to more a new grant under FLPMA authority.
place since 1980. The standard in the accurately reflect the contents of the We also rewrote the opening paragraph
proposed and final rule, ‘‘to a condition section. of section (d) to make it clearer as
satisfactory to BLM,’’ is essentially We modified proposed paragraph (a) follows:
unchanged from previous regulations. by removing the cross reference to If your grant was issued prior to October
section 2808.11(b), which describes the 21, 1976, and there is a proposed substantial
Section 2807.20 When Must I Amend penalties BLM may assess for deviation in the location or use or terms and
My Application, Seek an Amendment of unauthorized use of public land, and conditions of your right-of-way grant, you
My Grant, or Obtain a New Grant? replaced this cross-reference with final must apply for a new grant consistent with
This section explains that you must paragraph (c). We also modified this the remainder of this section. BLM may
paragraph by moving the last sentence respond to your request in one of the
amend your application or seek an following ways.
amendment to your grant when there is to final paragraph (b) and by replacing
a proposed substantial deviation in the phrase ‘‘including cost This changes makes it clear that BLM
location or use. The requirements to reimbursement according to § 2804.14’’ requires a new grant when you want to
amend an application or grant are the with the phrase ‘‘including payment of change the use, or location, or terms and
same as those for a new application, processing and monitoring fees and rent conditions authorized by a grant issued
including paying processing and according to sections 2804.14, 2805.16, before October 21, 1976.
monitoring fees and rent according to and 2806.10 of this part.’’ Cost We also added a new sentence to final
sections 2804.14, 2805.16, and 2806.10 reimbursement includes both processing paragraph (d)(1) to specify that when a
of this rule. and monitoring fees. In the proposed pre-FLPMA grant is replaced by a new
Any activity not authorized by your rule, both fees were in section 2804.14. FLPMA grant, BLM may ‘‘include the
grant may subject you to prosecution In the final rule, we moved the same terms and conditions in the new
under applicable law and to trespass provisions for monitoring fees to section grant as were in the original grant as to
2805.16, making it necessary to add this annual rent, duration, and nature of
charges under subpart 2808 of this part.
citation. It is long-standing BLM interest if BLM determines, based on
You must apply for a new grant if
practice that when an amendment to a current land use plans and other
BLM issued your grant before October
grant makes changes in acreage that management decisions, that it is in the
21, 1976, and there is a proposed
otherwise affect the determination of public interest to do so.’’ This is a
substantial deviation in the location or
rent for that grant, BLM collects any provision similar to previous section
use of the right-of-way or its terms and 2803.6–1(b) that we inadvertently
additional rent that may be calculated as
conditions. If BLM approves your omitted from the proposed rule and we
part of the amendment process. We
application, BLM will terminate your added it to be more consistent with that
added a cross-reference to section
old grant and you will receive a new regulation and existing policy.
2806.10 to the last sentence of final
grant under 43 U.S.C. 1761 et seq. and We added a new paragraph (d)(2) to
paragraph (b) to provide more complete
the regulations in this part. BLM may make clear that if the pre-FLPMA grant
notice of the financial impacts that may
include the same terms and conditions holder does not want to consent to the
be involved in an amendment.
in the new grant as were in the original We also reorganized proposed termination of its pre-FLPMA grant, the
grant as to annual rent, duration, and paragraph (b) (final paragraph (d)) and holder may apply for a new grant for the
nature of interest if BLM determines, modified it in several respects. The new use, location, or terms and
based on current land use plans and proposed rule mirrored previous section conditions. BLM would then process the
other management decisions, that it is in 2803.6–1(b) in that it stated that we application in the same manner as any
the public interest to do so. would issue an amended grant for pre- other application filed under this rule.
Alternatively, BLM may keep the old FLPMA grants whose use or location The new grant, as appropriate, would
grant in effect and issue a new grant for substantially changed. We believe both authorize the new location (those lands
the new use or location or terms and the proposed section 2807.19 and outside the right-of-way included in the
conditions. previous section 2803.6–1(b) do not pre-FLPMA grant), the new use (on
This section also explains that section accurately reflect FLPMA’s intent. lands included in the pre-FLPMA grant
509(b) of FLPMA requires you to apply Section 509(a) of FLPMA, in referring to and/or the new location), or would
for a new grant to allow realignment of grants issued prior to the enactment of establish new terms and conditions for
any railroad and appurtenant FLPMA, says: the existing use on lands included in
communication facilities. FLPMA the pre-FLPMA grant. BLM would then
requires BLM to issue a decision within Nothing in this title shall have the effect
of terminating any right-of-way or right-of- authorize the holder’s operations under
6 months after it receives your complete use heretofore issued, granted, or permitted. two grants (the pre-FLPMA grant and
application. BLM may include the same However, with the consent of the holder the new FLPMA grant).
terms and conditions in the new grant thereof, the Secretary concerned may cancel We modified proposed section
as were in the original grant as to annual such a right-of-way or right-of-use and in its 2807.19(c) (final paragraph 2807.20(e))
rent, duration, and nature of interest, if: stead issue a right-of-way pursuant to the to make clear that you must apply for
(A) These terms are in the public provisions of this title. a new grant to allow realignment of any
interest; To more accurately reflect the intent railroad and appurtenant
(B) The lands are of approximately of section 509(a) of FLPMA, we revised communication facilities. Both previous
equal value; and the regulations to clearly state that a section 2803.6–2 and the proposed rule
(C) The lands involved are not within pre-FLPMA grant could not be do not accurately reflect the intent of
an incorporated community. amended, but could rather be replaced FLPMA to the extent that they imply
This section was proposed as section with a new FLPMA grant. Our proposed that an existing grant may be amended
2807.19. We reworded and reorganized rule at section 2807.19(b) suggested this to allow realignment of a railroad and
this section in the final rule to make it approach. The cited section of FLPMA appurtenant communication facilities.

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Section 509(b) of FLPMA states ‘‘When previous section 2803.6–3. BLM may transfer rights that already exist in a
the Secretary concerned issues a right- decrease rents if the new holder grant. Furthermore, the rule provides
of-way under this title for a railroad and qualifies for an exemption or waiver or that an assignment must include
appurtenant communication facilities in reduction and the previous holder did documentation that the assignor agrees
connection with a realinement of a not. Similarly, BLM may increase rents to the assignment and without such
railroad on lands under his jurisdiction if the previous holder qualified for an documentation, BLM will not approve
by virtue of a right-of-way granted by exemption or waiver or reduction and an assignment.
the United States, he may * * * provide the new holder does not. If BLM Several commenters believed that the
in the new right-of-way * * *.’’ This approves the assignment, the benefits proposed processing fee was too high.
language requires the issuance of a new and liabilities of the grant apply to the One commenter said that all
grant to allow realignment of any new grant holder. The processing times assignments should be designated
railroad and appurtenant and conditions described at section Category I since the grant being assigned
communication facilities and we 2804.25(c) of this part apply to would have already been processed and
modified the final rule accordingly. assignment applications. all information necessary to process the
With the exception of editorial We added the last clause ‘‘including assignment is already in the file. BLM
changes and those discussed above, the paying processing fees (see subpart 2804 agrees that we can process most routine
rest of this section is the same as of this part)’’ to paragraph (b) in the assignment applications in less time
proposed section 2807.19. final rule to address processing fees in than would usually be needed to
Several commenters said that BLM this section and deleted proposed process an application for a new grant.
cannot require an amendment to an section 2807.21, which also addressed We have consequently restructured the
existing grant that already provides for processing fees. We did this because the processing fee categories (see section
additional appurtenances (the rights subject matter of processing fees for 2804.14(b)) to create a new category
have already been granted). The assignments should be addressed in the (final Category 1) that requires more
commenters also said that to the extent section having to do with assignments. than one, but eight or fewer hours to
that a Federal agency wants to install We modified final paragraph (d) by process. The $97 fee for this category is
equipment of any kind that is beyond replacing the last sentence of proposed less than that for the existing fee
the scope of the original grant issued section 2807.20(d) with ‘‘BLM may category for an application for a new
under subpart 2809 of these regulations, decrease rents if the new holder grant. We disagree that all information
a Federal agency should seek to amend qualifies for an exemption * * * or necessary to process an assignment is
the grant. BLM agrees with these waiver or reduction * * * and the already in the file. Every assignment
comments. An amendment is required previous holder did not. Similarly, BLM application will require new
only when there is a substantial may increase rents if the previous information regarding the assignee’s
deviation in location or use. This holder qualified for an exemption or qualifications. It may also be necessary
applies whether the applicant or grant waiver or reduction and the new holder to gather new information in order to
holder is a Federal agency or a non- does not.’’ We did this to make clear determine if the assignor is in
federal entity. The construction, use, or when rents may decrease and when they compliance with the terms and
addition of facilities that are already may increase as the result of an conditions of the grant, if it is in the
authorized within the scope of an assignment. We also added ‘‘If BLM public interest to approve the
existing grant do not require a grant approves the assignment, the benefits assignment, or if it may be appropriate
amendment. and liabilities of the grant apply to the for BLM to modify or add bonding
new grant holder’’ to the final paragraph requirements or to add additional terms
Section 2807.21 May I Assign My to make clear that any benefits or and conditions to the grant. If BLM
Grant? liabilities of the grant, including any believes that the circumstances involved
This section explains that with BLM’s modifications or additional terms and in an individual assignment application
approval, you may assign, in whole or conditions resulting from our approval will require more than eight hours of
in part, any right or interest in a grant. of the assignment, would apply to the processing time, the appropriate fee
In order to assign a grant, the proposed new grant holder. category will be determined according
assignee must file an application and With the exception of the changes to section 2804.14 of this rule. The final
satisfy the same procedures and described above, this final section is rule provides that there will be no
standards as for a new grant, including substantially similar to proposed section processing fee if BLM can process your
paying processing fees. 2807.20. application in one hour or less.
Assignment applications must also We received many comments on Several commenters believed that the
include: various aspects of assignments. One oil and gas industry should not have to
(A) Documentation that the assignor commenter said that someone could pay any processing fees for assignments
agrees to the assignment; and misinterpret the phrase ‘‘in part’’ in because the oil and gas industry
(B) A signed statement that the paragraph (a) of the proposed rule to produces revenues in the form of
proposed assignee agrees to comply mean that BLM is granting to someone royalties and bonuses and therefore
with and be bound by the terms and other than the grant holder the right to pays its own way. Please see the general
conditions of the grant that is being construct a project within the discussion in this preamble for an
assigned and all applicable laws and boundaries of the original grant. The explanation of why BLM charges
regulations. commenter said that this could result in processing fees.
BLM will not recognize an assignment the first holder being adversely affected Several commenters said that in order
until it approves it in writing. BLM will by the installation of the second and to streamline the process, the final rule
approve the assignment if doing so is in said that the rule should make clear that should allow BLM to process multi-
the public interest. BLM may modify or BLM will protect the rights of existing assignment requests all at one time and
add bonding and other requirements, facilities. BLM’s approval of an that BLM should charge the assignor for
including additional terms and assignment, either in part or in full, the actual time it takes to process the
conditions, to the grant when approving cannot create any new rights of assignments. BLM agrees that when
the assignment. This is consistent with construction. An assignment can only multiple grants are to be assigned to the

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same assignee, processing a single mass reflect current legal and regulatory will review your application and
assignment is usually more efficient requirements as accurately as possible. determine the applicable terms and
than processing the assignment of each We anticipate that grant modifications conditions of any renewed grant.
grant separately. The final rule does not incorporated as part of the approval of BLM will not renew grants issued
require an individual application for an assignment application will be before October 21, 1976. Section 510(a)
each grant that is to be assigned. An uncommon, but that when they are of FLPMA supports this practice. If you
applicant may include as many grants in made, will be made judiciously and for hold such a grant and would like to
a single application as is desired. BLM good reason. You may appeal any continue to use the right-of-way beyond
will determine the processing fee decision requiring such a grant your grant’s expiration date, you must
category based on the estimated number modification under section 2801.10 of apply to BLM for a new FLPMA grant
of hours that we will need to process the the final rule. (see subpart 2804 of this part). You must
application. Several commenters said that there send BLM your application at least 120
Several commenters opposed any should be no requirement to submit a days before your grant expires. If BLM
blanket condition of approval that new application for an assignment denies your application, you may
would allow for changing the terms of because the substance of the grant will appeal the decision under section
the grant. The commenters said the not change. BLM disagrees. Whenever a 2801.10 of this part.
provision would make it very difficult grant holder proposes to transfer some We made several changes to the final
to assign a right-of-way where the or all of the rights contained in the grant rule to make it clearer and more
assignee would have no idea what BLM to another party, BLM must determine, complete. We modified paragraph (a),
may change or add to it. Section 505 of among other things: which discusses grants that specify that
FLPMA provides in part that: (A) If the proposed assignee is they are renewable, to state that you
qualified to hold the grant under must apply to BLM at least 120 calendar
Each right-of-way shall contain (a) terms days before your grant expires if you
and conditions which will * * * (iii) require applicable provisions of law and the
regulations in subpart 2803; choose to renew it. The proposed rule
compliance with applicable air and water
quality standards established by or pursuant (B) Whether the proposed assignee specified that an application for renewal
to applicable Federal or State law; and (iv) may be exempt from rent or eligible for was required (see proposed section
require compliance with State standards for a waiver or reduced rent; 2807.22(c)), but did not state when the
public health and safety, environmental (C) If it is in the public interest to application should be filed for such
protection, and siting, construction, approve the assignment; and grants. Since a grant cannot be renewed
operation, and maintenance of or for rights- (D) If it may be appropriate to modify after it has expired, it is important that
of-way for similar purposes if those standards or add bonding or other requirements. BLM receive the renewal application in
are more stringent than applicable Federal BLM believes that the most efficient sufficient time to enable us to complete
standards; way to obtain the information it needs our review process prior to grant
To implement this and other to make these determinations and to expiration. The final rule sets the same
requirements of section 505, the FLPMA meet its responsibilities under 120 calendar day requirement for all
right-of-way regulations have contained applicable law and regulations is grants.
the following provision (previous through the filing of an application for We reworded paragraph (b) to remove
section 2801.2(a)(1)) since 1980: assignment. unnecessary language and to make clear
that a request for renewal must be in the
An applicant by accepting a right-of-way Section 2807.22 How Do I Renew My
grant, temporary use permit, assignment, form of an application.
Grant? We added a new paragraph (e) to the
amendment or renewal agrees and consents
to comply with and be bound by the This section explains that if your final rule stating that grants issued
following terms and conditions, excepting grant specifies that it is renewable and before October 21, 1976, under
those which the Secretary may waive in a you choose to renew it, you must apply authorities FLPMA repealed will not be
particular case: (1) To the extent practicable, to BLM to renew the grant at least 120 renewed under those authorities and
all State and Federal laws applicable to the calendar days before your grant expires. that if the holder of such a grant wishes
authorized use and such additional State and BLM will renew the grant if you are to continue using the right-of-way
Federal laws, along with the implementing complying with the terms, conditions, beyond the grant’s expiration date, the
regulations, that may be enacted and issued
and stipulations of the grant and holder will need to apply for a new
during the term of the grant or permit.
applicable laws and regulations. FLPMA grant. We added this language
Final section 2805.12 is consistent If your grant does not address whether to improve the completeness of the
with previous section 2801.2(a)(1). it is renewable, you may apply to BLM section and to reflect long-standing BLM
BLM believes that it is appropriate to to renew the grant. You must send BLM practice.
review a grant’s terms and conditions your application at least 120 calendar We also added a new paragraph (f) to
when it is being assigned to determine days before your grant expires. In your inform you that if BLM denies your
if the terms and conditions are application you must show that you are renewal application, you may appeal
consistent with applicable laws and complying with the terms, conditions, the decision to IBLA under section
regulations then in effect and to modify and stipulations of the grant and 2801.10 of this part. We added this
the grant, including additional terms applicable laws and regulations. BLM paragraph to give you additional notice
and conditions, if needed, to make the has the discretion to renew the grant if of your appeal rights, especially since
grant consistent with applicable laws doing so is in the public interest. previous section 2803.6–5(e) states that
and regulations. The grant holder is You must submit your application in decisions denying renewals of grants
responsible for complying with the manner stated in paragraph (a) or (b) that do not contain a provision for
applicable laws and regulations whether of this section and include the same renewal are final with no right of review
or not the terms and conditions of the information necessary for a new or appeal.
grant are currently consistent with those application. You must reimburse BLM Several commenters said that there
laws and regulations. We believe that it in advance for the administrative costs should be no charge for renewing an
is desirable for both parties, however, of processing the renewal in accordance existing grant. They said this was
that the terms and conditions of a grant with section 2804.14 of this part. BLM particularly appropriate for right-of-way

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grant renewals that are categorically modify their existing grant and that a (B) Add or modify terms and
excluded from the National simple notice or letter of request should conditions in order to bring the renewed
Environmental Policy Act compliance suffice. Several commenters also said grant into compliance with current
process. We disagree. BLM charges that they did not see a need to submit regulations and statutes.
processing fees to everyone who files a the same information in a grant renewal Therefore, we have not adopted the
renewal application, except those application as they initially submitted commenters’ suggestions.
specifically exempted by law or for the grant. We disagree. In renewing One commenter said that the final
regulation. Please see the discussion a grant, BLM is responsible for rule should eliminate annual renewals
above addressing our authority to complying with section 501(b)(1) of in favor of 5-year renewals or renewals
recover processing costs. FLPMA which states that: for the original term of the grant.
Several commenters said that the fee Neither the proposed nor final rule
The Secretary concerned shall require,
for grant renewal should be an prior to granting, issuing, or renewing a right- contains a provision or requirement for
administrative fee based on the time and of-way, that the applicant submit and annual renewals. In your renewal
cost it takes to renew the grant and not disclose those plans, contracts, agreements, application you may request the
be based on the fee category and or other information reasonably related to the renewal term you prefer. BLM
information used in processing the use, or intended use, of the right-of-way, determines the term of the renewed
original grant. Some commenters said including its effect on competition, which he grant and will do so in the same manner
that the administrative costs of deems necessary to a determination, in as the term for new grants (see section
processing such right-of-way renewals accordance with the provisions of this Act, 2805.11(b)).
should be minimal, and the costs of as to whether a right-of-way shall be granted,
issued, or renewed and the terms and Subpart 2808—Trespass
seeking cost recovery could outweigh
conditions which should be included in the
the reasonable costs of processing. Many right-of-way. This subpart contains regulations
commenters also said that the having to do with trespass on public
administrative requirements for a Statutes such as the National lands. It explains:
renewal would likely be minimal and Environmental Policy Act also require (A) What trespass is, including
would not justify charging a grantee the BLM to assess the impacts of uses of the distinguishing between willful and non-
same fees associated with a new grant public lands before authorizing or willful trespass;
request. Several commenters said that allowing such uses, including (B) What actions BLM will take if it
the review time for renewals should be authorizing the continuation of an determines you are in trespass; and
minimal since a renewal does not existing use. BLM believes that the most (C) The limitations for receiving a
require the same paperwork and review efficient way to obtain the information new grant if you are or have been in
that an application for a new right-of- it needs to enable it to meet its trespass.
way would. One commenter said that obligations under such statutes is Section 2808.10 What Is Trespass?
the regulations should provide through the filing of an application
sufficient flexibility to charge fees based using Standard Form 299. If the This section explains that trespass is
on the most applicable fee structure to authorized facility has already been using, occupying, or developing the
the project. The commenter said that constructed, the information you must public lands or their resources without
fees could be: include in the renewal application is a required authorization or in a way that
(A) Based on the amount of time it only that which is relevant to the is beyond the scope and terms and
takes to process the renewal; continuing operation, maintenance, and conditions of your authorization.
(B) Derived from the cost of staff time termination of the facility. If any of the Trespass is a prohibited act. The final
used to establish the processing fee for information required on Standard Form language is slightly different from that
the original application; or 299 was provided in the original grant in proposed section 2808.10(a). We
(C) Based on an ‘‘as-they-are- application and there has been no replaced ‘‘and specific limitations of
processed’’ method. change, a statement to that effect will your authorization’’ with ‘‘and terms
BLM agrees that we can process most and conditions of your authorization.’’
generally suffice.
routine renewal applications in less The new language more accurately and
time than would usually be needed to Several commenters said that BLM clearly describes trespass.
process an application for a new grant. should not change the terms and This section also explains that
We have consequently restructured the conditions of the existing grant for the trespass includes acts or omissions
processing fee categories (see section renewed grant. One commenter said the causing undue or unnecessary
2804.14(b)) to create a new category renewals should include only the degradation to the public lands or their
(Category 1) for assignments and minimal administrative exercise of resources. In determining if such
renewals that require more than one, but ensuring that a grant holder has upheld degradation is occurring, BLM may
eight or fewer hours to process. If BLM the terms of the grant. BLM is consider the effects of the activity on
believes that the circumstances involved responsible for assuring that the right- resources and land uses outside the area
with an individual renewal application of-way authorizations it approves are in of the activity. This sentence is new to
will require more than eight hours of compliance with applicable statutes and this section in the final rule, but is
processing time, we will determine the regulations in effect at the time the consistent with the previous
appropriate fee category according to authorization is approved. This applies regulation’s definition of ‘‘unnecessary
section 2804.14 of this rule. Please see to renewals since a renewal creates a or undue degradation’’ (see previous
the discussion on processing fee right to use public land that would not section 2800.0–5(x)).
categories in the discussion of section exist if the BLM does not approve the The section also explains that there
2807.21 for more discussion of this renewal. In order to meet this are two kinds of trespass, willful and
matter. responsibility, BLM needs to: non-willful.
Several commenters said that BLM (A) Review the circumstances of an (A) ‘‘Willful trespass’’ is voluntary or
should not require grant holders to expiring grant beyond the holder’s conscious trespass and includes trespass
submit a formal application for a grant compliance with the terms of the grant; committed with criminal or malicious
renewal if they do not propose to and intent. It includes a consistent pattern of

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actions taken with knowledge, even if part, for the current and past years of nothing in this section limits your
those actions are taken in the belief that trespass, or, where applicable, the liability under any other Federal or state
the conduct is reasonable or legal. cumulative value of the current use fee, law.
(B) ‘‘Non-willful trespass’’ is trespass amortization fee, and maintenance fee Several commenters said that as
committed by mistake or inadvertence. for unauthorized use of any BLM- stewards of the land, it is BLM’s job to
With the exception of editorial administered road; and manage the public land, and therefore,
changes and the change mentioned (C) Rehabilitating and restoring any there should be no cost to the grantee
above, this section remains as proposed. damaged lands or resources. If you do for investigations of trespass. We
Several commenters said that the final not rehabilitate and restore the lands disagree with the commenters. Existing
rule should follow the common and resources within the time BLM 43 CFR 9239.7–1 requires a trespasser to
definition of trespass, which requires provides in the notice, you will be liable pay ‘‘costs, damages and penalties’’ for
notice and knowledge and then a willful for the costs the United States incurs in a trespass against the United States.
and knowing act. Commenters also said rehabilitating and restoring the lands These final rules are consistent with
that trespass, by definition, cannot be by and resources. that provision of existing regulations.
accident. Commenters said, ‘‘Trespass This section explains that in addition Several commenters said that since
laws require entering or remaining on to amounts you owe under paragraph (a) land ownership lines are not always
the property of another knowing that of this section, BLM may assess clear, it seems unfair to require a
consent to remain or enter is denied.’’ penalties as follows: penalty for trespass without giving the
We disagree with the commenters. (A) For willful or repeated non-willful permit holder an opportunity to correct
The meaning of the term ‘‘trespass’’ is trespass, the penalty is two times the the problem. The commenters said that
broader than commenters assert (see rent. For roads, the penalty is two times the expense of surveying Federal land in
Black’s Law Dictionary and Webster’s the charges for road use, amortization, the vicinity of their facilities would be
New University Dictionary). BLM’s and maintenance, which have accrued very expensive and in most cases
definition of trespass in these and since the trespass began; completely unnecessary. The
previous regulations is based on section (B) For non-willful trespass not commenters suggested that BLM modify
303(g) of FLPMA (43 U.S.C. 1733) resolved within 30 calendar days after the section to state that when an
which states: receiving the written notice under ‘‘encroachment’’ is identified, the
The use, occupancy, or development of any paragraph (a) of this section, the penalty encroacher will pursue reasonable
portion of the public lands contrary to any is an amount equal to the rent. To efforts to correct the ‘‘encroachment’’ to
regulation of the Secretary or other resolve the trespass you must meet one BLM’s satisfaction. The commenters
responsible authority, or contrary to any of the conditions identified in 43 CFR said that if after a reasonable period of
order issued pursuant to any such regulation, 9239.7–1. For roads, the penalty is an time the ‘‘encroachment’’ is not
is unlawful and prohibited. amount equal to the charges for road removed and/or resolved, only then
Several commenters said in the final use, amortization, and maintenance, should BLM impose a trespass penalty.
rule we should replace ‘‘unnecessary or which have accrued since the trespass We did not amend the final regulations
undue degradation’’ with ‘‘damage.’’ began; and as suggested by the commenters.
The final rule continues to use the term (C) The penalty will not be less than However, in many circumstances where
‘‘unnecessary or undue degradation.’’ the fee for a Processing Category 2 BLM determines a party is in trespass,
The use of the term is consistent with application for non-willful trespass or we will allow a period of time to correct
both previous section 2800.0–5(u)), less than three times this value for the trespass violation before initiating
proposed section 2808.10(a), and with willful or repeated non-willful trespass. formal trespass proceedings. BLM must
FLPMA’s mandate that BLM ‘‘take any You must pay whichever is the higher maintain the flexibility to immediately
action necessary to prevent unnecessary of the: begin trespass proceedings for those
or undue degradation of the lands’’ (see (1) Amount computed in paragraph situations where we need to
section 302(b)). (b) of this section; or immediately curtail activities that may
Other commenters said that the (2) The minimum penalty amount. We cause damage to the public lands or
proposed rule is too subjective and amended this section of the rule to make health and safety.
open-ended. We disagree. The key to clearer what the amount of the penalty
Section 2808.12 May I Receive a Grant
trespass is set forth in the terms and would be. The language change does not
if I Am or Have Been in Trespass?
conditions of the right-of-way grant, change the intent of the proposed rule.
which each holder will receive in In addition to civil penalties under This section explains that until you
writing from BLM. If there exists a paragraph (b) of this section, you may be satisfy liability for a trespass, BLM will
question whether the proposed activity tried before a United States magistrate not process any applications you have
goes beyond the scope of the grant, a and fined no more than $1,000 or pending for any activity on BLM-
holder should consult BLM in advance imprisoned for no more than 12 months, administered lands. A history of
to determine if a grant amendment is or both, for a knowing and willful trespass will not necessarily disqualify
necessary. trespass, as provided at 43 CFR 9262.1 you from receiving a grant. In order to
and 43 U.S.C. 1733(a). correct a trespass, you must apply under
Section 2808.11 What Will BLM Do if Until you comply with the the procedures described at subpart
It Determines That I Am in Trespass? requirements of 43 CFR 9239.7–1, BLM 2804. BLM will process your
If BLM determines you are in trespass, will not process any of your application as if it were a new use. Prior
we will notify you in writing of the applications for any activities on BLM unauthorized use does not create a
trespass and explain your liability. Your lands. We amended this section of the preference for receiving a grant.
liability includes: final regulations to be consistent with We substantially revised this section.
(A) Reimbursing the United States for existing regulatory authority in 43 CFR In addition to wording changes, we
all costs incurred in investigating and 9239.7–1. moved proposed section 2808.11(e) to
terminating the trespass; This section also explains that you this section. We also added the phrase
(B) Paying rental for the lands, as may appeal a trespass decision under ‘‘or have been’’ to the section title. We
provided for in subpart 2806 of this section 2801.10 of this part and that did this to provide a more accurate

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description of the contents of the final Federal agencies rather than right-of- to a grant issued to another Federal
section, since unsatisfied trespass way grants. In those regulations, right- agency appropriate to site-specific
liability may include liability incurred of-way reservations contained different conditions.
as the result of prior trespass actions, terms and conditions than right-of-way Other commenters said that the final
even if those actions are no longer grants that we issued to individuals, rule should make clear which
occurring. We also added language associations, partnerships, and provisions do apply to Federal agencies.
stating that a history of trespass will not corporations. Under this final rule, BLM All provisions of the final rule apply to
necessarily disqualify you from will issue to Federal agencies a right-of- grants we issue to other Federal
receiving a grant and that prior way grant on BLM Form 2800–14 Right- agencies to the extent possible. BLM did
unauthorized use does not create a of-Way Grant/Temporary Use Permit for not change the final rule as a result of
preference for receiving a grant. These right-of-way uses on public land. This this comment.
provisions reflect long-standing BLM grant will contain the same terms and Several commenters said that BLM
practice and policy. We added them to conditions as the grants BLM issues to does not have the authority to charge
provide a more complete description of any other party, unless circumstances Federal agencies rents (fair market
how we deal with applications filed by warrant different terms (see section value) for rights-of-way granted to them.
parties with a history of trespass. 2805.12 for terms and conditions The commenters stated that FLPMA
Several commenters said that contained in right-of-way grants). BLM does not give BLM the authority to
proposed section 2808.11(e) (now in does not typically require bonding from charge rent because FLPMA does not
final section 2808.12) is arbitrary and Federal agencies. However, this section include Federal agencies in the
capricious, since under this rule, if there continues to allow BLM the discretion definition of ‘‘holder’’ at 43 U.S.C.
is a trespass dispute under appeal, BLM to require it. 1702(b). The commenters also stated
would not process other applications. This subpart is different from that that by charging other Federal agencies
This rule is not arbitrary and capricious. which we proposed. We deleted rent, BLM is acting outside the scope of
As stated above, it is consistent with proposed section 2809.10 because we its authority. For the same reason, the
current practice and with regulations state in final section 2809.10 that these commenters stated that BLM could not
that were subject to the Administrative regulations apply to Federal agencies to impose on Federal agencies
Procedure Act’s notice and comment the extent possible; it is therefore requirements for liability, bonding, or
rulemaking. Moreover, 43 CFR 9239.7– redundant to say that a Federal agency allow BLM to release third parties from
1(b) and (c) provides for filing a bond must apply for a grant. We deleted liability for environmental damages.
as one means of satisfying trespass proposed section 2809.11, since the Under this final rule (at section
liability. Payment of trespass liability provisions in that proposed rule are all 2806.14(b)(1)), a Federal agency does
under protest during the pendency of an covered elsewhere in the regulations not have to pay rent for its use of a right-
appeal is another means of resolving (see for example final section 2805.12). of-way unless it is using the facility,
commenters’ concerns. Proposed section 2809.12 is covered in system, space, or any part of the right-
One commenter said that proposed final section 2809.10. of-way for a commercial purpose. We
section 2808.12 was unclear as to believe that we have the authority to
Section 2809.10 Do the Regulations in require other Federal agencies to pay
whether it refers to trespass on other This Part Apply to Federal Agencies?
lands or other grants. We agree that the rent for their rights-of-way. The
proposed section was not as clear or This section explains that the commenters base their argument on the
complete as it could have been and regulations in this part apply to Federal use of the term ‘‘holder’’ in section
believe that the changes made in the agencies to the extent possible. 504(g) of FLPMA (43 U.S.C. 1764(g)),
final rule, as described above, make it However, BLM may suspend or but overlook the provision of that
clear that BLM will not process any terminate a Federal agency’s grant only section authorizing the Secretary to
applications you have pending for any if the terms and conditions of the issue rights-of-way to Federal agencies
activity on BLM-administered land if Federal agency’s grant allow it or the ‘‘for such lesser charge, including free
you have an unsatisfied trespass agency head holding the grant consents use,’’ as the Secretary finds equitable
liability. This includes pending to it. This section also explains that and in the public interest. This
applications for activities other than under these regulations Federal agencies provision authorizing reduced rent, or
those involved in the trespass and are generally not required to pay rent for no rent at all, would be unnecessary if
located on lands other than those where a grant (see section 2806.14). the Secretary lacked authority to charge
Several commenters said that the final Federal agencies rent.
the trespass occurred.
regulations should make clear that none Section 507 of FLPMA (43 U.S.C.
Subpart 2809—Grants for Federal of the provisions outside of subpart 1767) provides that the Secretary may
Agencies 2804 apply to Federal agencies. We issue rights-of-way to any U.S.
This subpart: disagree. Section 507(a) of FLPMA (43 department or agency, subject to ‘‘such
(A) Gives information about grants U.S.C. 1767) states that the Secretary terms and conditions as he may
that BLM issues to other Federal ‘‘may provide under applicable impose.’’ Charging other Federal
agencies; provisions of this title for the use of any agencies rent in appropriate
(B) Explains that these regulations department or agency of the United circumstances is one such applicable
apply to Federal agencies and describes States a right-of-way over, upon, under term. The broad language of section 507
limitations; and or through the land administered by contradicts commenter’s statements.
(C) States that Federal agencies are him, subject to such terms and
generally not required to pay rent for a conditions as he may impose.’’ Clearly, Part 2880—Rights-of-Way Under the
right-of-way grant. other sections of Title V of FLPMA and Mineral Leasing Act
The final rule changes the way BLM other sections of this rule apply to We received many comments on the
deals with right-of-way grants we issue grants we issue to other Federal proposed rule that addressed issues in
to other Federal agencies. Under agencies. For example, BLM can add both the part 2800 and part 2880
previous regulations in subpart 2807 we terms and conditions (see section 505 of regulations. So as not to be redundant,
issued right-of-way ‘‘reservations’’ to FLPMA and subpart 2805 of this rule) we addressed the comments only in the

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section they pertained to in the part MLA right-of-way regulations and the with ‘‘Surveying, marking routes, and
2800 regulations. In the following FLPMA right-of-way regulations. Please collecting data to use to prepare
discussion of the part 2880 regulations, see the table in the general discussion applications for grants or TUPs.’’ We
if a comment on the part 2800 in this preamble that explains some of believe the final rule’s definition of
regulations also pertains to a section in the significant differences and ‘‘casual use’’ is a more accurate and
the 2880s, instead of repeating the similarities between FLPMA and MLA useful description because it recognizes
discussion again here, we provide a grants. that casual use may cause little or no
cross-reference to the appropriate disturbance and because it gives
section in the part 2800 preamble Subpart 2881—General Information examples that are more useful than
discussion. This subpart contains general those provided in the proposed
information that pertains to right-of-way definition.
General Comments In the final rule we amended the
grants that BLM issues under the
Several commenters said it was Mineral Leasing Act (MLA). It contains definition of ‘‘facility’’ by removing the
inappropriate and a ‘‘conflict of due policy, procedure, and acronyms and reference to communication site rights-
process’ to include rules addressing the definitions that apply to the part 2880 of-way or uses, since the only
appeal process and oil and gas at a later regulations. communication site uses authorized
date. We disagree. Nothing precludes a under the Mineral Leasing Act are for
Federal agency from promulgating rules Section 2881.2 What Is the Objective internal operations of the pipeline. BLM
covering different areas of the same of BLM’s Right-of-Way Program? authorizes these internal
program as long as the public has notice This section is new to the final rule communication uses as part of the MLA
of any regulatory changes and the and explains it is BLM’s objective to linear right-of-way grant and not a
opportunity to comment. Notice and grant rights-of-way to any qualified communication use lease that would
comment on a rule is due process. individual, business, or government allow the holder to sublease space for
Several commenters believe that the entity, and to direct and control the use commercial purposes.
rule mixes many disparate industries in of rights-of-way on public lands in a In the final rule we amended the
the requirements for a right-of-way. manner that: definition of ‘‘Federal lands’’ to mean
They said that oil and gas operations are (A) Protects the natural resources; all lands owned by the United States,
significantly different from interstate (B) Prevents unnecessary or undue except lands:
transmission lines, communication degradation to public lands; (A) In the National Park System;
equipment, or other industries, and (C) Promotes the use of rights-of-way (B) Held in trust for an Indian or
therefore provisions relating to them in common; and Indian tribe; or
should be taken out of the rule. BLM (D) Coordinates, to the fullest extent (C) On the Outer Continental Shelf.
disagrees with this comment and possible, all BLM actions under the The proposed rule excepted lands
believes that there is no significant regulations with state and local administered by the Tennessee Valley
difference in the process to analyze a governments, interested individuals, Authority (TVA) from the definition,
right-of-way application regardless of and appropriate quasi-public entities. which is incorrect. TVA lands are
the industry involved. In this respect, We added this section to the final rule acquired lands and are owned by the
oil and gas pipelines are not so to provide overall guidance for BLM’s United States. For the purposes of these
dissimilar to water pipelines, roads, or MLA right-of-way program. It is regulations TVA lands are considered
other linear surface-disturbing facilities consistent with 30 U.S.C. 185 and Federal lands. We deleted the phrase
that right-of-way grants authorize. In existing policy. ‘‘whether surface or mineral estate or
addition, any special character both’’ to make the definition consistent
belonging to oil and gas operations is Section 2881.5 What Acronyms and with 30 U.S.C. 185(b)(1). We also
accommodated by our treatment of them Terms Are Used in These Regulations? deleted the phrase ‘‘without reference to
in part 2880, distinct from the part 2800 This section contains the acronyms how the lands were acquired’’ because
rights-of-way authorized by FLPMA. and defines terms used in part 2880. the phrase is unnecessary and does not
Several commenters said that the rule Unless an acronym or term is listed in add to the definition.
is another financial disincentive for oil this section, the acronyms and terms in BLM deleted the proposed definition
and gas development on public lands. part 2800 of this title apply to this part. of, and use of the term, ‘‘field
We disagree. With the exception of Paragraph (a) is new to the final rule examination’’ from the final rule. For all
major transmission pipelines, nearly all and contains acronyms that are categories of applications, labor costs
feeder pipeline and trunk pipeline right- frequently used in this part of the final are by far the largest portion of the costs
of-way applications fall in Processing rule. of processing an application. Costs
Categories 1 through 4 of the rule. These Paragraph (b) of this section defines associated with environmental analysis
processing fees range from $97 to $923. the terms used in this part of the rule. and other application processing steps
The minor fee increase this rule We deleted the definition of the term are predominately labor and time
implements is insignificant compared to ‘‘agency head’’ from the final rule related. While a portion of labor costs
the overall cost of constructing an oil because the term is only used once in are reflected in the amount of time it
and gas pipeline. In addition, the oil final section 2886.11. That section takes to do field examinations for an
and gas industry has been paying cost describes an agency head as the head of application, a significant amount of time
reimbursement for grant applications an agency having administrative is also spent coordinating with staff, the
since the previous regulations became jurisdiction over the Federal lands applicant, and other involved parties,
effective in 1987. involved in an application. drafting documents, and keeping case
Several commenters said that the In the final rule we amended the file records current. It is more accurate
differences between MLA and FLPMA definition of ‘‘casual use’’ to mean to base a processing fee on the total
regulations are confusing to BLM and ‘‘activities ordinarily resulting in no or estimated number of hours it will take
the oil and gas industry. The negligible disturbance of the public for involved staff to process an
commenters asked that the final rule lands, resources, or improvements.’’ We application, than to count the number of
spell out any distinction between the also replaced the proposed example field examinations needed to process

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21032 Federal Register / Vol. 70, No. 77 / Friday, April 22, 2005 / Rules and Regulations

the application. For the same reasons, terminate a pipeline or to protect the and sold to a third party pipeline carrier
we eliminated the definition of ‘‘field environment or public safety. A TUP that a right-of-way grant is required.
examination’’ from section 2801.5 of does not convey any interest in land.’’ This is because after the point of sale,
this part. We made editorial changes to this the third party is responsible for
We added a definition of ‘‘grant’’ to definition and added a sentence stating transporting the product downstream.
this part because the definition of the that TUPs do not convey an interest in The third party would need a right-of-
term in final section 2801.5 is for land. We added this sentence to better way for any Federal lands crossed
authorizations BLM issues under Title V explain the nature of a TUP, as set forth downstream from the custody point. A
of FLPMA or a previous right-of-way in previous section 2881.1–2. right-of-way grant is also needed for any
authority, and the grant definition in In the final rule we added the oil or gas pipeline located off the lease,
this part of the rule is for authorizations definition of ‘‘third party’’ to mean any regardless of ownership.
BLM issues under the Mineral Leasing person or entity other than BLM, an We proposed paragraph (b) of this
Act (30 U.S.C. 185). The final definition applicant, or a right-of-way grant holder. section as section 2881.8. We added this
is consistent with previous section Third party is used several times in paragraph to this section to make the
2880.0–5(n). these regulations, but it was not defined, rule more readable. This paragraph
In the final rule we added a definition so we included a definition here. explains that these regulations do not
of ‘‘monitoring’’ to this part that is the apply to:
same as in section 2801.5 of the FLPMA Section 2881.7 Scope (A) Production facilities on an oil and
right-of-way regulations. We added the We combined proposed section gas lease which operate for the benefit
definition to this part since 2881.8 with this section and reworded of the lease. The lease authorizes these
‘‘monitoring’’ is defined in terms of it slightly. This section explains that the production facilities. We reworded this
grants and ‘‘grant’’ is defined differently regulations in this part apply to: paragraph to make it clear that any
in the two parts. (A) Issuing grants and TUPs, and to production related facilities which
We made edits to the definition of administering, amending, assigning, operate for the benefit of the lease do
‘‘production facilities’’ that do not renewing, and terminating grants and not need a right-of-way;
change the meaning of the term, but TUPs for oil and gas pipelines. We (B) Pipelines on Federal lands under
make the definition more clear. We replaced the phrase ‘‘oil, natural gas, the jurisdiction of a single Federal
replaced the proposed definition’s synthetic liquid or gaseous fuels, or any department or agency, including
phrasing ‘‘on the leasehold’’ with ‘‘on refined product produced from these bureaus and agencies within the
its Federal oil and gas lease.’’ materials’’ with the phrase ‘‘oil and gas’’ Department of the Interior, other than
We added a definition of ‘‘right-of- because the definition of oil or gas BLM. We made minor changes to this
way’’ to this part of the final rule includes those products; paragraph in the final rule, but did not
because the definition of right-of-way in (B) All grants and TUPs BLM and its change the meaning from the proposed
section 2801.5 is legally inaccurate for predecessors previously issued under rule;
this part. The proposed and final the Mineral Leasing Act. In the final (C) Authorizations BLM issues to
definitions for part 2800 refer to ‘‘public rule we deleted the phrase ‘‘and to those Federal agencies for oil or gas
lands.’’ This final definition uses [grants or permits] issued by the transportation. We deleted the phrase
‘‘Federal lands’’ instead. This is an Secretary of the Interior or his delegate that was in the proposed rule ‘‘Such
important distinction because BLM’s in connection with the Trans-Alaska Oil grants are subject to the regulations at
authority to issue grants under the MLA Pipeline System [TAPS],’’ because it is part 2800 of this chapter’’ and
applies not just to public lands, but to inaccurate. Under these regulations the substituted for it a reference to section
all Federal lands if the right-of-way term ‘‘grant’’ means an authorization 2801.6; or
crosses lands under two or more issued under 30 U.S.C. 185. TAPS (D) Authorizations issued under the
agencies’ jurisdiction, even those lands authorizations are issued under 43 authority of the Federal Land Policy and
managed by departments other than the U.S.C. 1652(b), not 30 U.S.C. 185. As a Management Act of 1976 (see part 2800
Department of the Interior. result of this change, we added a new of this chapter).
We made edits to the definition of the paragraph (c) to this section (see the We added a new paragraph (c) to this
term ‘‘related facilities.’’ We removed explanation below); and section to explain that notwithstanding
the proposed definition’s use of the (C) Pipeline systems, or parts thereof, the definition of ‘‘grant’’ in section
phrase ‘‘and which are authorized under on a Federal oil and gas lease owned by: 2881.5 of this subpart, the regulations in
the Act’’ because it is unnecessary to the (1) A party who is not the lessee or this part apply, consistent with 43
meaning of the term. We would not lease operator; or U.S.C. 1652(c), to any authorization
consider facilities to be related unless (2) The lessee or lease operator that issued by the Secretary of the Interior or
they were authorized under the Act. are downstream from a custody transfer his or her delegate under 43 U.S.C.
Therefore the wording was surplus. metering device. We reworded this 1652(b) for the Trans-Alaska Oil
We added a definition of the term paragraph in the final rule and removed Pipeline System. We made this change
‘‘substantial deviation’’ to this section of the phrase ‘‘from storage tanks or a’’ and to the final rule to be consistent with the
the final rule. We use the term in two replaced it with ‘‘a custody transfer’’ statute. The terms of 43 U.S.C. 1652(c)
sections of this final rule and we define because the statement as proposed was expressly except certain provisions of
it here to indicate a change, in location incorrect. There are situations where a 30 U.S.C. 185 from a TAPS
or use, from the terms of a grant or TUP lessee may install a series of oil storage authorization. Chief among these
under the MLA. tanks which are authorized by the terms exceptions is a holder’s liability for
In the final rule we amended the of the lease. Pipelines located on-lease damages, which is addressed by TAPS
definition of ‘‘Temporary Use Permit that are associated with these tanks, at 43 U.S.C. 1653. In determining
(TUP)’’ to mean ‘‘a revocable, either upstream or downstream of the whether the regulations in part 2880 can
nonpossessory privilege to use specified tank, can also be authorized by the be applied to a TAPS authorization
Federal lands in the vicinity of and in terms of the lease and do not need a ‘‘consistent with 43 U.S.C. 1652(c),’’ a
connection with a right-of-way to right-of-way grant. It is at the point on careful reading of 43 U.S.C. 1652–1653
construct, operate, maintain, or a lease where the oil or gas is metered will be required.

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Section 2881.8 Information Collection 185(b) specifically excludes National We amended the proposed rule at
Matters Park System lands from the definition of subpart 2882 to more accurately
We deleted this section from the final Federal lands and also lands held in describe our criteria for determining
rule because it is not necessary to trust for an Indian or Indian tribe). It availability of lands for right-of-way
publish this information in the text of also includes non-Interior agencies such authorizations. In the final rule we
the regulations. as the Forest Service, Department of added the phrase ‘‘for lands BLM
These regulations contain information Defense agencies, Department of Energy, exclusively manages’’ to the beginning
collection requirements. As required by Corps of Engineers, and Tennessee of the section to make it clear that we
the Paperwork Reduction Act of 1995 Valley Authority. Further, under the use the process in subpart 2802 to
(44 U.S.C. 3501 et seq.), we submitted statute, even when BLM is not one of determine the lands available for MLA
a copy of the proposed information the ‘‘two or more Federal agencies’’ right-of-way use only if those lands are
collection requirements to the Office of whose land is crossed, BLM still has the exclusively under BLM’s jurisdiction.
Management and Budget (OMB) for responsibility to issue grants and Final paragraph (c) was proposed as the
review. OMB approved the information renewals for the Federal lands. second sentence to this section.
collection requirements under Control Final paragraph (b) specifies that BLM
Section 2881.12 When Do I Need a may require common use of a right-of-
Number 1004–0189, which expires TUP for an Oil and Gas Pipeline?
October 31, 2005. way or restrict new grants to existing
This section is new to the final rule corridors where safety and other
Section 2881.9 Severability and explains that you must obtain a considerations allow. The concept of
This section was proposed as section TUP from BLM when you require corridors is new to this rule. We added
2881.10, and explains that if a court temporary use of more land than your this paragraph to be consistent with
holds any provisions of these rules or grant authorizes to construct, operate, existing BLM policy and previous
their applicability to any person or maintain, or terminate your pipeline, or section 2881.1–3(c). In addition, 30
circumstances invalid, the remainder of to protect the environment or public U.S.C. 185(p) requires the use of rights-
these rules and their applicability to safety. We added this section to the final of-way in common to the extent
other people or circumstances will not rule to make it clear that any temporary practical in order to minimize adverse
be affected. With the exception of use taking place outside the boundary of environmental impacts and the
editorial changes, this section remains your right-of-way for a pipeline will proliferation of separate rights-of-way.
as proposed. require you to obtain a TUP from BLM We received several comments related
prior to engaging in the use. BLM may to common use of right-of-way corridors
Section 2881.10 How Do I Appeal a and requiring placement of rights-of-
BLM Decision Issued Under the grant a TUP for uses occurring any time
way in existing corridors. Several
Regulations in This Part? during the life of the right-of-way. This
commenters said that instead of
section is consistent with existing
This is a new section to these designating specific corridors, BLM
policy and previous section 2881.1–2.
regulations. The proposed rule listed the should encourage operators to use
basic contents of this section in each Subpart 2882—Lands Available for MLA existing rights-of-way to the extent it is
place there is a right to appeal. This Grants and TUPs possible and practical. The final rule
final rule replaces the appeals language encourages common use of right-of-way
This subpart explains which lands are
in each of those sections with a cross- areas and 30 U.S.C. 185(p) specifies that
available for Mineral Leasing Act right-
reference to this section. This eliminates the use of rights-of-way in common
of-way grants and temporary use
redundancy and brings this rule in line ‘‘shall be required to the extent
permits. practical.’’ BLM reserves the right to
with other BLM regulations that address
appeals. This rule makes no changes to Section 2882.10 What Lands Are require common use as part of the terms
current BLM policy and practice Available for Grants or TUPs? of all grants we issue under these
regarding appeals. regulations. This means that we may
This section explains that for lands grant an additional right-of-way use that
Section 2881.11 When Do I Need a BLM exclusively manages, we use the may adjoin or overlap your right-of-way.
Grant From BLM for an Oil and Gas same criteria to determine whether Usually, it is practical and efficient to
Pipeline? lands are available for MLA right-of-way overlap rights-of-ways and locate
This section is new to the final rule grants or TUPs as we do to determine facilities as close together as possible to
and explains that you must have a BLM whether lands are available for FLPMA minimize surface disturbance. However,
grant issued under the Mineral Leasing right-of-way grants. there may be situations where for
Act for an oil and gas pipeline or related This section also explains that where technical or safety reasons it is not
facility to cross Federal lands under: a proposed oil or gas pipeline right-of- practical to overlap them. An example
(A) BLM’s jurisdiction; or way involves lands managed by two or is constructing oil or gas pipelines
(B) The jurisdiction of two or more more Federal agencies, the regulation at under high voltage transmission lines
Federal agencies. section 2884.26 of this part will be where the transmission line creates
We added this section to the final rule followed. corrosion problems for steel pipe buried
to make it clear that a BLM grant under Finally, this section explains that below the transmission line. We will
30 U.S.C. 185 is necessary for an oil or BLM may require common use of a notify you in advance if we anticipate
gas pipeline that crosses the jurisdiction right-of-way and may restrict new grants issuing an additional grant for the lands
of two or more Federal agencies, or to existing corridors where safety and covered by your grant. However, we do
crosses lands under BLM’s sole other considerations allow. Generally, not agree with the comment that using
jurisdiction. This is consistent with BLM land use plans designate corridors. existing rights-of-way will replace
previous section 2880.0–7 and 30 U.S.C. The Forest Service also has the designated utility corridors on public
185(c). ‘‘Federal agencies’’ includes authority to designate corridors in its lands. Corridor designations in land use
Interior agencies such as BLM, U.S. Fish Forest Management Plans. Any MLA plans serve an important purpose in
and Wildlife Service, and Bureau of right-of-way BLM authorizes would planning and siting major utility
Reclamation (the MLA at 30 U.S.C. respect these corridors. projects. Locating a new project in a

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designated corridor may speed up the of-way or designated corridors so as not If you are a partnership, corporation,
NEPA analysis for a project. to compromise existing rights. association, or other business entity,
Several commenters questioned Subpart 2883—Qualifications for you must submit the following
whether the corridor requirement can be Holding MLA Grants and TUPs information in your application:
applied to MLA rights-of-way. The (A) Copies of the formal documents
commenters had concerns over siting oil This subpart explains who is eligible
creating the business entity, such as
and gas utilities in the same corridor as and who is ineligible to hold grants and
articles of incorporation, and including
others. They were concerned that their TUPs. It also explains:
the corporate bylaws. We inadvertently
ability to operate, maintain, and prevent (A) How you prove to BLM that you
omitted this provision from the
leaks not be compromised. We believe meet the qualifications to hold a grant
proposed rule, but in order to comply
that oil and gas pipelines are well suited or TUP; and
with 30 U.S.C. 185(i) and (j), we added
to corridor development. There are (B) What happens if BLM issues you
the requirement to the final rule. BLM
many thousands of miles of major oil a grant or TUP and later determines that
and gas pipelines that are located in needs this information to assist us in
you are not qualified to hold it.
designated right-of-way corridors in the tracking changes in corporate
Section 2883.10 Who May Hold a ownership, corporate mergers, and
United States. As stated above, our
Grant or TUP? reorganizations. This requirement is
standard procedure is to contact existing
grant holders whose right-of-way is This section explains that to hold a consistent with section 2886.12. BLM
inside a corridor when any new right- grant or TUP under these regulations, believes it is reasonable to ask
of-way is proposed for the same you must be: corporations to identify how they are
corridor. BLM must consider (A) A United States citizen, an structured and who is responsible in the
compatibility of uses and possible association of such citizens, or a organization, especially in light of
public health and safety issues that can corporation, partnership, association, or several major corporations’ recent
result from utility placement on public similar business entity organized under financial difficulties;
lands. Under FLPMA, BLM has the the laws of the United States, or of any (B) Evidence that the party signing the
authority to designate corridors and state therein, or a state or local application has the authority to bind the
require corridor use on all public lands, government; and applicant. This provision is new to the
including lands through which an MLA (B) Financially and technically able to final rule. We added the provision
right-of-way has or will be authorized. construct, operate, maintain, and because of our past experiences in
On non-BLM lands, the ‘‘Secretary terminate the proposed facilities. working with representatives of some
concerned’’ has authority to establish We added TUPs to this section since companies. It is common for applicants
corridors and require their use. they were mistakenly left out of the to enlist agents to act on their behalf and
Several commenters said that forcing proposed rule. We added them here and they may be the only contact BLM has
the use of corridors could make a lease other places in the final rule to be with the applicant. It is important and
operation uneconomical and result in consistent with previous regulations reasonable for us to know that the
the waste of minerals and associated and policy and 30 U.S.C. 185(e). We person purporting to be an agent of the
royalties. We understand the concern also added the phrase ‘‘and terminate’’ grant holder or applicant actually has
that locating a right-of-way corridor on to paragraph (b) of this section. We authority to act as such;
an existing oil and gas lease could limit inadvertently omitted it from the
uses or production on a lease. Corridor proposed rule, but it is in previous (C) The name, address, and
designations are a land use planning section 2882.2–3(a)(4). citizenship of each participant in the
decision that we make based on a multi- business entity;
disciplinary analysis. This rule does not Section 2883.11 Who May Not Hold a
Grant or TUP? (D) The name, address, and
address the designation of right-of-way citizenship of each shareholder owning
corridors. We did not change the final This section explains that aliens may 3 percent or more of the shares, and the
rule as a result of this comment. not acquire or hold any direct or number and percentage of any class of
Another commenter said that BLM indirect interest in grants or TUPs, voting shares of the business entity
should use caution when requiring all except that they may own or control which such shareholder is authorized to
rights-of-way to be placed in the same stock in corporations holding grants or vote;
corridor and that BLM must recognize TUPs if the laws of their country do not
that oil and gas rights-of-way must not deny similar or like privileges to (E) The name and address of each
be compromised in any way by another citizens of the United States. This affiliate of the business;
right-of-way grantee, particularly in section contains minor rewording (F) The number of shares and the
light of the liability requirements BLM changes, but is consistent with the percentage of any class of voting stock
proposes to place on grantees. We did proposed rule and previous section owned by the business entity, directly
not change the final rule as a result of 2882.2–1. or indirectly, in any affiliate controlled
this comment. New grants are subject to by the business; and
Section 2883.12 How Do I Prove I Am
valid existing uses, including the uses of (G) The number of shares and the
Qualified To Hold a Grant or TUP?
other right-of-way holders inside or
percentage of any class of voting stock
outside of corridors. In response to a This section explains how you prove
owned by an affiliate, directly or
liability issue similar to that raised by to BLM that you are qualified to hold a
indirectly, in the business entity
commenter, previous regulations and grant or TUP. If you are a private
policy established liability requirements individual, BLM requires no proof of controlled by the affiliate.
for right-of-way grant holders in a citizenship with your application. If you have already supplied this
manner similar to that contained in However, BLM may request you provide information to BLM and the information
these regulations. BLM will continue to proof of your citizenship should a remains accurate, you only need to
consult with all grant holders when we question of this nature arise during reference the grant serial number under
consider common use of existing rights- processing your application. which you filed it.

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Section 2883.13 What Happens if BLM (D) Where to file your application; Interior.’’ We deleted the phrase because
Issues Me a Grant or TUP and Later (E) The public notification the Secretary has delegated to BLM
Determines That I Am Not Qualified To requirements for right-of-way and TUP authority over rights-of-way and
Hold It? applications; and therefore it would be more appropriate
This section explains that if BLM (F) Processing of applications for for you to contact BLM, rather than the
issues you a grant or TUP, and later grants and TUPs. Secretary.
determines that you are not qualified to Section 2884.10 What Should I Do We also added a new paragraph (d) to
hold it, BLM will terminate your grant Before I File My Application? this section to make it clear that BLM
or TUP under 30 U.S.C. 185(o). You may will keep confidential any information
This section explains that when you that you mark as ‘‘confidential’’ or
appeal this decision under section determine that a proposed oil and gas
2881.10 of this part. ‘‘proprietary’’ to the extent allowed by
pipeline system would cross Federal law. This is consistent with existing
In the final rule we added a cross-
lands under BLM’s jurisdiction, or policy and the Department’s Freedom of
reference to the appropriate section of
the Mineral Leasing Act to indicate our under the jurisdiction of two or more Information Act regulations in part 2 of
authority for terminating a grant that Federal agencies, you should notify this title.
you are not qualified to hold. We also BLM. Advance notice to us about your
intent to propose an oil and gas pipeline Section 2884.11 What Information
added a cross-reference to the appeals Must I Submit in My Application?
provisions of these rules. system will assist us in planning and in
processing your application. The This section explains the information
Section 2883.14 What Happens to My preapplication meeting will also benefit you must submit in your application for
Application, Grant, or TUP if I Die? you by providing you information on a MLA right-of-way grant. It explains
This section explains what happens to known resource issues, land use plan that you must file your application on
an application that we have not constraints, and potential problems you Form SF–299, as part of an Application
completely processed or to a grant or may be able to avoid when filling out for Permit to Drill or Reenter (BLM
TUP that we have issued when the your application. It may also save you Form 3160–3), or Sundry Notice and
applicant or holder dies. This section is time completing your application since Report on Wells (BLM Form 3160–5). In
new to this part, although we addressed we can help you determine the your application you must provide a
this same issue at section 2803.13 of the information that you need to include in complete description of the project,
proposed FLPMA regulations (‘‘What your application. including:
happens to my grant if I die?’’). We Before filing an application with (A) The exact diameters of the pipes
inadvertently omitted a similar BLM, we encourage you to make an and locations of the pipelines;
provision from the MLA regulations, appointment for a preapplication (B) Proposed construction and
and therefore are adding it now. This meeting with the appropriate personnel reclamation techniques; and
section is based on and is consistent in the BLM field office nearest the lands (C) The estimated life of the facility.
with final section 2803.12 of this rule. you seek to use. If your project affects
This section also explains that you
This section explains: multiple states or multiple BLM field
must file with BLM copies of any
(A) If an applicant or grant or TUP offices within a state, you may want to
applications you file with other Federal
holder dies, any inheritable interest in coordinate with the BLM state office so
agencies, such as the Federal Energy
the application, grant, or TUP will be that appropriate offices and agencies
Regulatory Commission (FERC) (see
distributed under state law. The word can be involved in the preapplication
Title 18 of the Code of Federal
‘‘inheritable’’ is not used here in its meeting. During the preapplication
Regulations for FERC regulations), for
technical sense. It refers to property meeting BLM can:
licenses, certificates, or other authorities
passing by will or intestate succession; (A) Identify potential routing and
involving the right-of-way. This
and other constraints;
(B) Determine whether or not the provision is consistent with previous
(B) If the distributee of a grant or TUP section 2882.2–1(c). Copies of
is not qualified to hold a grant or TUP lands in the proposed application are
located within a designated or existing applications to other Federal agencies,
under section 2883.10 of this subpart, such as the FERC application referenced
BLM will recognize the distributee as right-of-way corridor;
(C) Tentatively schedule the above, may be sufficient for much of the
the grant or TUP holder and allow the data we may require to process your
distributee to hold its interest in the processing of your proposed
application; application.
grant or TUP for up to two years. During To assist us in processing your
that period the distributee must either (D) Provide you information about
qualifications for holding grants and application, BLM may ask you to submit
become qualified or divest itself of the additional information beyond what the
interest. TUPs, and processing, monitoring, and
rent costs; and form requires. This information may
We added this provision to the final
(E) Identify any work which will include:
rule to make sure we have consistent
require obtaining one or more TUPs. (A) A list of any Federal and state
processes in place for cases where an
BLM may share this information with approvals required for the proposal;
applicant or a grant holder dies.
Federal, state, tribal, and local (B) A description of the alternative
Subpart 2884—Applying for MLA government agencies to ensure that route(s) and mode(s) considered when
Grants or TUPs these agencies are aware of any developing the proposal;
Subpart 2884 explains how to apply authorizations you may need from them. (C) Copies of, or reference to, all
for a grant or TUP. More specifically, it BLM will keep confidential any similar applications or grants you have
explains: information that you mark as submitted, currently hold, or have held
(A) The preapplication process; ‘‘confidential’’ or ‘‘proprietary’’ to the in the past. In the final rule we added
(B) What you need to provide in your extent allowed by law. the phrase ‘‘or have held in the past’’ to
application; We amended paragraph (a) of this paragraph to help us evaluate your
(C) The processing fees for proposed section 2884.10 by deleting financial or technical capability to
applications; the phrase ‘‘or the Secretary of the implement the project;

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(D) A statement of need and economic application. BLM may deny your BLM updates the fees for Categories 1
feasibility of the proposed project; application if you fail to do so. through 4 in the schedule each calendar
(E) The estimated schedule for For information purposes, in the final year, based on the previous year’s
constructing, operating, maintaining, rule we added a cite in paragraph (b) to change in the IPD–GDP, as measured
and terminating the project (a Plan of FERC’s regulations. second quarter to second quarter. BLM
Development). This was proposed in Several commenters said that all the will round these changes to the nearest
section 2884.19(a); information this section requires is dollar. You may obtain a copy of the
(F) A map of the project, showing its already in the right-of-way application annually revised schedule from any
proposed location and showing existing form and that any information BLM BLM state or field office or on BLM’s
facilities adjacent to the proposal. This requires should be in the form. We agree Internet Home Page at http://
is new to this section, but is consistent with this comment in theory, however, www.blm.gov.
with previous section 2882.2–3(a)(3); in practice our experience has shown After an initial review of your
(G) A statement certifying that you are that it is nearly impossible for an application, BLM will notify you in
of legal age and authorized to do applicant to anticipate every question, writing of the category into which your
business in the state(s) where the right- and design their project to address all application fits. You must then submit
of-way would be located and that you the issues at the application stage of to BLM the appropriate payment for that
have submitted correct information to processing. BLM requests for additional category before BLM processes your
the best of your knowledge; information to process an application application. If you disagree with the
(H) A statement of the environmental, are common, and the provisions of this category that BLM has determined for
social, and economic effects of the paragraph are necessary to help us to your application, you may appeal the
proposal; efficiently process applications. decision under section 2881.10 of this
(I) A statement of your financial and
Section 2884.12 What Is the Processing part.
technical ability to construct, operate, Your signature on a cost recovery
Fee for a Grant or TUP Application?
maintain, and terminate the project; Master Agreement (Category 5)
(J) Proof that you are a United States This section explains that you must constitutes your agreement with the
citizen. This provision is in previous pay a nonrefundable processing fee with processing category decision. Inherent
sections 2882.2–1(a) and 2882.2–3(a)(6). your application to cover costs to the in the concept of a Master Agreement is
We inadvertently left it out of the Federal Government of processing your a cooperative relationship between BLM
proposed rule and therefore added it application before the Federal and an applicant. BLM is committed to
here; and Government incurs them. We categorize working with any applicant wishing to
(K) Any other information BLM the fees based on an estimate of the pursue a Master Agreement. Under the
considers necessary to process your amount of time that the Federal provisions of the proposed rule and this
application. Previous section 2882.3(d) Government will expend to process final rule, an applicant’s signature on a
allowed BLM to require a right-of-way your application and to issue a decision Master Agreement constitutes an
applicant to submit such information as granting or denying the application. The agreement with the processing category
is necessary for review of the section also explains that there is no decision. More generally, an applicant’s
application. This requirement appears processing fee if the work is estimated signature on a Master Agreement
in the proposed rule at section to take one hour or less. This section constitutes agreement with all of its
2884.11(c)(5). contains a chart that lists the processing provisions, including the negotiated
Before BLM reviews your application fees by category and is based on application processing costs. A signed
for a grant, grant amendment, or grant proposed section 2884.12. For Master Agreement documents BLM’s
renewal, you must submit the following Processing Categories 1 through 4, labor decision on the processing category and
information and material to ensure that costs are by far the largest percentage of the applicant’s agreement with it.
the facilities will be constructed, processing costs. Costs associated with Therefore, we believe that an appeal of
operated, and maintained as common environmental analysis and other the negotiated agreement would be rare.
carriers: application processing steps for these Any disagreements during a Master
(A) Conditions for, and agreements categories are predominately labor and Agreement negotiation process that
among, owners or operators, adding time costs. The costs of supplies, could not be resolved would not result
pumping facilities and looping, or to printing, fuel, and lodging are small. in consummation and signature of a
otherwise increase the pipeline or For Processing Category 5 and 6 Master Agreement. At that point, BLM
terminal’s throughput capacity in applications, the complexity of the would have to make a processing
response to actual or anticipated required environmental analysis is category decision outside the context of
increases in demand; usually an important factor in a Master Agreement, and that decision
(B) Conditions for adding or determining processing costs, could be the subject of an administrative
abandoning intake, offtake, or storage particularly if the application requires appeal.
points or facilities; and an environmental impact statement. If you have submitted the processing
(C) Minimum shipment or purchase Processing costs for Category 5 and 6 fee and you appeal a Processing
tenders. applications are, however, worked out Category 1 through 4 or a Processing
We added the phrase ‘‘grant in advance between BLM and the Category 6 determination to IBLA, BLM
amendment’’ to the opening sentence of applicant either through a Master will process your application while the
proposed section 2884.11(c) (final Agreement or a detailed accounting of appeal is pending. If IBLA finds in your
section 2884.11(d)) to clarify that we work hours BLM estimates it will spend favor, you will receive a refund or
may also require an applicant who is on processing the application. Because adjustment of your processing fee. We
amending an existing grant to submit the non-labor costs are insignificant added this provision to the final rule to
this information. compared to labor costs, we eliminated explain existing processes.
If conditions or information affecting the term ‘‘field examination’’ from the BLM may determine at any time that
your application change, promptly category definitions for Categories 1 the application requires preparing an
notify BLM and submit to BLM in through 4, and in final section 2881.5 of EIS. If this occurs, BLM will send you
writing the necessary changes to your this part. a decision changing your processing

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category to Processing Category 6. You costs’’ are the financial measures of in processing applications for grants,
may appeal the decision under section resources an agency expends on and section 304(b) identifies factors to
2881.10 of this part. processing an application for a right-of- consider in determining reasonable
If you hold a grant or TUP relating to way or in monitoring the construction, costs. The MLA, in contrast, requires
the Trans-Alaska Pipeline System operation, and termination of a facility that applicants for grants and TUPs
(TAPS), BLM will send you a written BLM authorizes by a grant or permit. reimburse the United States for
statement seeking reimbursement of BLM bases actual cost information on ‘‘administrative and other costs’’
actual costs within 60 calendar days Federal accounting and reporting incurred in processing applications,
after the close of each quarter. Quarters systems which conform to the without providing additional criteria to
end on the last day of March, June, accounting principles and standards of consider, as does FLPMA. Therefore,
September, and December. In the final the U.S. Comptroller General. Costs are BLM must determine administrative and
rule we added language explaining that divided into ‘‘direct’’ and ‘‘indirect’’ other costs to process an MLA grant or
in processing your application and costs. TUP application without considering
administering authorizations relating to Direct costs include agency the factors that FLPMA requires us to
TAPS, the Department of the Interior expenditures for labor, material, stores, consider for FLPMA rights-of-way (see
will avoid unnecessary employment of and equipment usage associated with 49 FR 25972 (June 25, 1984)). BLM will
personnel and needless expenditure of performing right-of-way responsibilities. undertake or require only that work that
funds. This provision was not in the These costs include such items as gross is necessary to process an application
proposed rule. We added it to be wages and employee benefits, material, efficiently and in compliance with
consistent with previous section stores, equipment, and contract costs. applicable laws and regulations. There
2883.1–1(d). Indirect costs are those costs an is no provision in section 28 of the
We added a new provision to agency incurs for providing common MLA, or in this or previous regulations,
paragraph (b) of this section explaining services not specific to a particular that permits BLM to collect processing
that there is no fee if it takes one hour application and include purchasing, fees from a grant or TUP applicant for
or less to process your application. We property management, office fixed costs, any work beyond what is necessary to
believe that the minimal costs involved accounting, automated data process an application.
to process an application do not justify management, and personnel services. Some commenters also asked for the
charging a fee. We also added a new BLM assesses administrative charges basis for costs and the staff hourly rates.
Category 1 for processing routine against right-of-way cost recovery Staff hourly rates are set by a
applications that require greater than accounts on a percentage basis in order government-wide general schedule (see
one hour but less than or equal to eight to recover costs of indirect support the Office of Personnel Management
hours to process. Please see the services. Executive and managerial website at OPM.gov) for most BLM
preamble to section 2804.14 of this rule direction are not included in indirect employees, and include hourly rates for
for a discussion of why we added this costs. various levels or ‘‘grades‘‘of BLM
new category. For Processing Categories 1 through 4, specialists. Please see section 2804.14
Several commenters objected to BLM the established fees reflect both direct and the opening paragraphs of this
charging grant holders ‘‘actual’’ costs. and indirect costs. For Processing preamble section for further discussion
Some of the commenters claimed that Categories 5 and 6, we apply the annual of processing fees.
the distinction was artificial, as the indirect cost percentage to the direct Several commenters indicated that the
MLA did not use the word ‘‘actual,’’ and costs that we determine for a specific rule uses the wrong ‘‘inflation factor’’
BLM should charge MLA grant holders application. and said they believed that the
reasonable costs, as it does FLPMA ‘‘Actual costs’’ do not include Consumer Price Index would be more
grant holders. management overhead costs. We have appropriate. Previous section 2883.1–
BLM charges MLA grant holders defined ‘‘management overhead costs’’ 1(c), which established cost recovery
actual costs because the law requires it. in section 2801.5 as Federal categories in 1985, had no provision to
Section 28 of the MLA (30 U.S.C. 185(l)) expenditures associated with BLM’s make annual adjustments in cost
requires applicants for MLA pipeline directorate, including all BLM State recovery categories I through V. This
rights-of-way to reimburse the United Directors and the entire Washington final rule uses the IPD–GDP as the basis
States for ‘‘administrative and other Office staff, except where a State for making annual adjustments in the
costs’’ incurred in processing Director or Washington Office staff new categories 1 through 4. This is an
applications and in monitoring the member is required to perform work on appropriate standard where, as here,
construction, operation, maintenance, a specific right-of-way case. We also fees are heavily dependent on labor
and termination of an MLA pipeline. note that the costs of studies or other costs. As noted in the preamble to the
The MLA does not limit or qualify this work which BLM must do regardless of proposed rule at 64 FR 32109 (June 15,
requirement, nor does it list any factors whether it receives an application are 1999), the Consumer Price Index does
that BLM may take into account when considered independent public benefits not reflect a sufficiently high labor
determining reimbursable costs. This is and are not included in processing fees. intensiveness to be used to adjust the
in marked contrast to section 304(b) of This work includes preparing land use cost recovery fee structure. Please see
FLPMA, which addresses cost recovery plans. the preamble discussion for section
for rights-of-way issued under FLPMA Several commenters suggested that 2804.14 for more information.
(see 49 FR 25972 (June 25, 1984)). Thus, BLM and the applicant should agree on Several commenters said that
BLM charges its actual administrative what the ‘‘reasonable’’ costs of significant technological improvements
and other costs. processing an application should be. are taking place and offer significant
On July 25, 1986, in the preamble to They were also concerned that under cost savings since the 1986 study and
the previous cost recovery regulations at these regulations BLM would do that these savings should be included in
subpart 2808, BLM discussed ‘‘actual additional field work that is not the calculations. Please see section
costs’’ (51 FR 26836–26837). As necessary. Section 504(g) of FLPMA 2804.14 for more discussion of
explained in that preamble and in requires reimbursement of ‘‘reasonable’’ comments on processing fees and a
previous section 2800.0–5(o), ‘‘actual administrative and other costs incurred response to this comment.

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Several commenters asked if they had of the cross-reference, we added the Category 6 applications and responses
a right to an appeal if they disagreed requirements for a Master Agreement to comments.
with BLM’s category determination. application to the sections. Sections
Section 2884.18 What If There Are
Final sections 2884.12(d) and (e) clearly 2884.15 and 2884.16 contain one
Two or More Competing Applications
provide that if an applicant disagrees difference from the final FLPMA right-
for the Same Pipeline?
with a final BLM processing category of-way regulations in sections 2804.17
decision, the applicant has the right to and 2804.18: The provision for the This section explains that if there are
appeal that decision. This is consistent waiver of reductions of processing and two or more competing applications for
with previous sections 2883.1–1(a)(4) monitoring fees in final section the same pipeline and your application
and 2884.1 and proposed sections 2804.18(c) for FLPMA grants does not is in:
2884.12(d) and (f). appear in this final section because the (A) Processing Category 1 through 4,
MLA does not provide for reductions. you must reimburse BLM for processing
Section 2884.13 Who Is Exempt From costs as if the other application or
Paying Processing and Monitoring Fees? Please see the discussion in preamble
sections 2804.17 and 2804.18 for more applications had not been filed; or
This section explains that you are detailed information on the Master (B) Processing Category 6, you are
exempt from paying processing and Agreement provisions and responses to responsible for processing costs
monitoring fees if you are a state or local comments concerning Master identified in your application. You must
government or an agency of such a Agreements. pay the processing fee in advance.
government and BLM issues the grant Consistent with existing policy, BLM
for governmental purposes benefitting Section 2884.17 How Will BLM Process will not process your application
the general public. If your principal My Processing Category 6 Application? without the advance payment. Cost
source of revenue results from charges This section describes how BLM will sharing by competing applicants may be
you levy on customers for services process a Category 6 application. In arranged.
similar to those of a profit-making processing your application BLM will: This section also explains that BLM
corporation or business, you are not (A) Determine the issues subject to determines whether applications are
exempt. analysis under NEPA; compatible in a single right-of-way, or
This section is based on proposed (B) Prepare a preliminary work plan are competing applications for the same
section 2885.14 which cross-referenced that identifies data needs, studies, pipeline.
the proposed subpart 2804 regulations. surveys and other reporting Finally, this section explains that if
That proposed subpart contained requirements, the level of NEPA BLM determines that competition exists,
proposed section 2804.15, on which this documentation, consultation and BLM will describe the procedures for a
section is based. coordination requirements, public competitive bid through a bid
Section 2884.14 When Does BLM involvement needs, and a proposed announcement in a newspaper of
Reevaluate the Processing and schedule to complete application general circulation in the area affected
Monitoring Fees? processing; by the potential right-of-way and by a
(C) Develop a preliminary financial notice in the Federal Register.
This is a new section to the final rule plan that estimates the actual costs of This section was proposed as section
that explains that BLM reevaluates processing your application and 2884.15 and it mirrors final section
processing and monitoring fees for each monitoring the project; 2804.23. Please see that final section’s
category, and the categories themselves, (D) Discuss with you the preliminary discussion for an explanation of
within 5 years after they go into effect plans discussed above; and competing applications, responses to
and at 10-year intervals after that. This (E) Work with you to develop final comments, and changes to the final rule.
section also lists some examples of the work and financial plans which reflect
types of factors BLM considers when Section 2884.19 Where Do I File My
any work you have agreed to do. As part
reevaluating these fees. Several Application for a Grant or TUP?
of this process BLM will complete our
comments suggested a periodic review final estimate of the costs you must pay This section was proposed as section
and evaluation of the processing and BLM for processing the application and 2884.16 and explains where you should
monitoring fees and categories, and this monitoring the project. file your application for a grant or TUP.
section is responsive to those concerns. BLM may allow you to prepare Under this section, if BLM has exclusive
Any adjustment that BLM makes to the environmental documents and conduct jurisdiction over the lands involved,
fees or fee structure as a result of a any studies related to your application. you should file your application with
review under this section, apart from However, if BLM agrees to allow you to the BLM field office having jurisdiction
applying the IPD-GDP, would require a perform this work, you must do it to over the lands described in the
separate rulemaking. BLM standards. application. One of the changes we
We deleted proposed section 2884.14 Finally, this section states that BLM made to the final rule was to replace
because the provisions in that section will set out timeframes for periodic ‘‘State Office’’ with ‘‘Field Office,’’
are covered elsewhere in this final rule. estimates of processing costs for a because field offices are the most
Section 2884.15 What Is a Master specific work period. If your payment appropriate place of first contact, where
Agreement (Processing Category 5) and exceeds the costs that the United States applicants can readily obtain
What Information Must I Provide to BLM incurred for the work, BLM will either information about land use planning,
When I Request One? and adjust the next billing to reflect the resources, and issues in the area or areas
excess, or refund you the excess under where their pipeline is proposed.
Section 2884.16 What Provisions Do 43 U.S.C. 1734. You may not deduct any If another Federal agency has
Master Agreements Contain and What amount from a payment without BLM’s exclusive jurisdiction over the land
Are Their Limitations? prior written approval. You must pay involved, you should file your
The provisions in these two sections any amount due before we will continue application with that agency and refer to
were proposed in section 2884.13. That to process your application. its regulations for its requirements. If
section cross-referenced proposed Please see the preamble discussion of there are no BLM-administered lands
section 2804.7. In this final rule, instead section 2804.19 for a discussion of involved, but the lands are under the

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jurisdiction of two or more Federal 30 U.S.C. 185(w). This requirement is where it should occur and
agencies, including other Department of carried forward in final section consequently, we did not make the
the Interior agencies (but not the 2884.20(c). Please see the preamble to change suggested by commenters.
National Park Service), you should file the September 30, 2002 rule for an Several commenters said that
your application at the BLM office in explanation of new paragraph (c). publication of the notice in the Federal
the vicinity of the pipeline. BLM will BLM may hold public hearings or Register should suffice and that there is
notify you where to direct future meetings on your application if we no need to also publish in local
communications about the pipeline. determine there is sufficient interest to newspapers. The commenter’s
If two or more Federal agencies, warrant the time and expense of such suggestion is consistent with previous
including BLM, but not the National hearings or meetings. BLM will publish section 2882.3(b). We agree with the
Park Service, have jurisdiction over the a notice of any such hearings or commenters in part. The final rule
lands in the application, file it at any meetings in advance in the Federal leaves it up to local BLM officials to
BLM office having jurisdiction over a Register or in a newspaper of general determine whether it is more
portion of the Federal lands. BLM will circulation in the vicinity of the lands appropriate to publish in either the
notify you where to direct future involved. If BLM determines that public Federal Register or a local newspaper.
communications about the pipeline. hearings or meetings are needed, BLM Several commenters said that the
With the exception of editorial may pay for the cost of holding them, requirement to notify the Governor and
changes and the change discussed the applicant may pay, or both BLM and local governments should not apply to
above, this section remains as proposed. the applicant may share the costs. oil field projects. They also objected that
Before BLM holds any public hearings there is no time limit for the Governor
Section 2884.20 What Are the Public or meetings, BLM and the applicant or local governments to respond after
Notification Requirements for My must reach an agreement on receiving the notice. As discussed
Application? responsibilities and costs associated above, the formal notification
This section was proposed as section with them. requirement would ordinarily not apply
2884.17. It explains the public We amended proposed section to ‘‘routine’’ oil and gas field production
notification requirements for grant 2884.17(b)(2) by adding ‘‘or tribal grants and TUPs where environmental
applications. When BLM receives your government’’ to the list of governments impacts would be minor. However,
application, it will publish a notice in we would notify. This corrects an when formal notification is necessary,
the Federal Register or a newspaper of omission in the proposed rule and more BLM will send copies of the published
general circulation in the vicinity of the accurately describes our notification notice to the Governor and local or
lands involved. If BLM determines the process. tribal governments, and heads of other
pipeline will have only minor We amended proposed paragraph (d) affected Federal agencies. Although not
environmental impacts, it is not in the final rule to make it clear that we a regulatory requirement, BLM will
required to publish this notice. This will publish any notices of meetings in identify in the notification an
final rule continues to require a newspaper of general circulation in appropriate review time and request
procedures that are consistent with the vicinity of the lands involved. The that comments be provided within a
previous section 2882.3(b) and proposed proposal only said ‘‘local newspaper.’’ reasonable period. As a matter of
section 2884.17. This change makes this section practice, BLM does not provide open-
If we do publish a notice, it will, at consistent with other provisions in the ended review and comment when we
a minimum, contain: rule and more accurately describes make these notifications.
(A) A description of the pipeline where we would publish the notice. Several commenters stated that we
system; and Several commenters said that the should revise proposed section
(B) A statement of where the public notification requirements should 2884.17(c) by replacing the word ‘‘refer’’
application and related documents are not apply to transmission pipelines and with the word ‘‘notice’’ to be consistent
available for review. that oil and gas field production with the 1990 amendments to the MLA.
BLM will send copies of the operations should be excluded from this Final section 2884.20(c) is consistent
published notice for review and regulation. We disagree. Although oil with this suggestion.
comment to the: and gas production facilities, including Some commenters suggested that we
(A) Governor of each state within on and off-lease flowlines, generally revise proposed paragraphs (b) and (c)
which the pipeline system would be have minor environmental impacts, to include notification of Indian tribes
located; there may be some instances where with jurisdiction over lands affected by
(B) Head of each local government or potential impacts warrant formal public a right-of-way grant application. We
jurisdiction or tribal government within notice. This final rule at paragraph (a) added ‘‘tribal government’’ to the list of
which the pipeline system would be states that BLM is not required to those we will notify in final section
located; and provide formal notification through 2884.20(b)(2) to address this comment.
(C) Heads of other Federal agencies publication in the Federal Register or a
whose jurisdiction includes areas newspaper of general circulation if it Section 2884.21 How Will BLM Process
within which the pipeline system determines that proposed rights-of-way My Application?
would be located. will have minor impacts. This final rule Under this section BLM will notify
If your application involves a pipeline is consistent with previous section you in writing when it receives your
that is 24 inches or more in diameter, 2882.3(b), which provided BLM with application and will identify your
BLM will also send notice of the discretion in determining whether or processing fee. BLM will process your
application to the appropriate not to provide formal notice of completed application following the
committees of Congress in accordance applications, based on a review of each timeframes in the chart in paragraph (b)
with 30 U.S.C. 185(w). We revised application. A blanket exclusion of of this section.
previous section 2882.3(a) on September public notice for all oil and gas This section was proposed as section
30, 2002 (67 FR 61276) to incorporate pipelines serving oil and gas production 2884.18, which contained little more
this Congressional notification facilities could result in the public not than cross-references to the applicable
requirement to comply with amended being provided formal notice in cases provisions of the part 2800 regulations.

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This final rule replaces the cross- Section 2884.24 What Fees Do I Owe If of the public. No grant or TUP is
references with the provisions of the BLM Denies My Application or If I required for casual use on BLM lands.
rule from the part 2800 regulations. Withdraw My Application? This section also explains that for any
Since this final section mirrors final activities on BLM lands that are not
This section was proposed as section
section 2804.25 of this rule, please see casual use, such as surface disturbing
2884.21 and explains that if BLM
the discussion of that section for surveys or data collection, you must
denies, or you withdraw, your
changes to the rule and responses to obtain prior BLM approval. To conduct
application, you owe the processing fee,
comments. activities on lands administered by
unless you have a Category 5 or 6
other Federal agencies, you must obtain
Section 2884.22 Can BLM Ask Me for application. Then, the following
any prior approval those agencies
Additional Information? conditions apply:
require.
(A) If BLM denies your Category 5 or We amended proposed section
This section was proposed as section
6 application, you are liable for all 2884.22 by making it clear that a grant
2884.19 and explains that BLM may ask
actual costs that the United States or TUP is not required for activities on
you for additional information
incurred in processing it. The money BLM lands that are casual use. This
necessary to process your application. If
you have not paid is due within 30 change is consistent with existing policy
we require additional information, we
calendar days of receiving a notice for and regulation (see previous section
will follow the procedures in final
the amount due; and 2882.1(d)). We also added language
section 2804.25(b) and therefore we
(B) You may withdraw your explaining that for activities on non-
cross reference that section here.
This section also explains that we application in writing before BLM BLM lands administered by other
may also ask other Federal agencies for issues a grant or TUP. If you withdraw Federal agencies, you must follow the
additional information, terms and your application before BLM issues a rules and obtain any prior approvals
conditions, and advice on whether to grant or TUP, you are liable for all from those agencies.
issue the grant. actual processing costs the United States
has incurred up to the time you Section 2884.26 When Will BLM Issue
Section 2884.23 Under What withdraw the application and for the a Grant or TUP When the Lands Are
Circumstances May BLM Deny My actual costs of terminating your Managed By Two or More Federal
Application? application. Any money you have not Agencies?
This section explains that BLM may paid is due within 30 calendar days This section was proposed as 2884.23.
deny your application if: after receiving a bill for the amount due. It explains the processes BLM must
(A) The proposed use is inconsistent Processing fees in Categories 1 through follow before we issue or renew right-
with the purpose for which BLM or 4 are not refundable. We replaced the of-way grants or TUPs.
other Federal agencies manage the lands cross reference in proposed 2884.21 This section explains that if the
described in the application; with the text in this final rule to application involves lands managed by
(B) The proposed use would not be in minimize the need to refer back to the two or more Federal agencies, BLM will
the public interest; FLPMA regulations. not issue or renew the grant or TUP
(C) You are not qualified to hold a Several commenters said that oil and until the heads of the agencies
grant or TUP; gas lessees should not owe any money administering the lands involved have
(D) Issuing the grant or TUP would be if BLM rejects their applications. We concurred. For example, if a pipeline
inconsistent with the Act, other laws, or disagree. The Mineral Leasing Act at 30 crosses Bureau of Reclamation and U.S.
these or other regulations; U.S.C. 185(l) says that ‘‘[t]he applicant Corps of Engineers lands, BLM would
(E) You do not have or cannot for a right-of-way or permit shall be the issuing agency. Likewise, if a
demonstrate the technical or financial reimburse the United States for pipeline crosses Forest Service and
capability to construct the pipeline or administrative and other costs incurred Department of Energy lands, BLM
operate facilities within the right-of-way in processing the application * * *.’’ would be the issuing agency. BLM
or TUP area; or The plain meaning of the statute and the would also be the issuing agency if a
(F) You do not adequately comply use of the word ‘‘applicant’’ rather than pipeline crossed BLM lands and another
with a deficiency notice or with any ‘‘holder,’’ which is used elsewhere in Federal agency’s lands. Where
BLM requests for additional information the section to indicate that an concurrence is not reached, the
needed to process the application. application has been approved, suggests Secretary of the Interior, after
You may appeal BLM’s decision to that Congress intended that applicants consultation with these agencies, may
deny your application under section should reimburse costs, whether or not issue or renew the grant or TUP, but not
2881.10 of this part. BLM approved or rejected the through lands within a Federal
This section was proposed as section application. We did not amend this reservation where doing so would be
2884.20 and mirrors the provisions in section as a result of this comment. inconsistent with the purposes of the
final section 2804.26. The only reservation.
difference is that the MLA allows for Section 2884.25 What Activities May I
Conduct on BLM Lands Covered By My We deleted proposed paragraph (d) in
TUPs, whereas the FLPMA regulations the final rule because the statement
in part 2800 of this rule address short- Application for a Grant or TUP While
BLM Is Processing My Application? made in that section is unnecessary.
term right-of-way authorizations. The
provisions in this section replace a This section was proposed as section Section 2884.27 What Additional
cross-reference in proposed section 2884.22 and explains the activities you Requirement Is Necessary for Grants or
2884.20. We made this change to may conduct before BLM makes a TUPs for Pipelines 24 or More Inches in
minimize the need for applicants to decision on your application. Under Diameter?
refer back to the FLPMA regulations. these regulations you may conduct This section explains that if an
Please see the discussion of section casual use activities (see final section application is for a pipeline 24 inches
2804.26 in this preamble for a 2881.5 for a definition of ‘‘casual use’’) or more in diameter, BLM will not issue
discussion of responses to public on BLM lands covered by the or renew the grant or TUP until after we
comments. application, as may any other member notify the appropriate committees of

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Congress in accordance with 30 U.S.C. 2805.13. Please see the discussion of section 2805.11. We did this so that
185(w). On September 30, 2002, we section 2805.13 for an explanation of grant expirations will coincide with
published this provision as a stand- the other changes to that and this rental periods that are paid through
alone amendment to our regulations. section. December 31 of the rental period. We
Please see 67 FR 61274 for a discussion also added language to final paragraph
Section 2885.11 What Terms and
of that final rule. This paragraph is (a) explaining that the maximum term
Conditions Must I Comply With?
consistent with that final rule. for a TUP is three years. This provision
This section explains the duration is consistent with existing policy. We
Subpart 2885—Terms and Conditions of and the terms and conditions of use of mistakenly omitted it from the proposed
MLA Grants and TUPs grants and TUPs. Proposed section rule;
This subpart contains information and 2885.11 stated that the general (B) By accepting a grant or TUP, you
policies about the terms and conditions provisions of proposed sections agree to use the lands described in the
of grants and TUPs. It also explains: 2805.10, 2805.12, and 2805.13 of this grant or TUP for the purposes set forth
(A) When grants and TUPs are chapter apply. In this final rule we in the grant or TUP. We reworded the
effective; eliminated the cross-references and final rule by removing the cross-
(B) What the terms and conditions of replaced them with the actual reference to section 2805.10(c) and
a grant or TUP are; provisions concerning the terms and replaced it with the actual provisions
(C) How much it costs to hold a grant conditions of grants. Grants or TUPs from that section. We also included
or TUP; and contain the following terms and language stating that BLM may modify
(D) What happens if you default on conditions, as applicable: your proposed use or change the route
rental or other payments. (A) Duration: The term of a grant may or location of the facilities in your
Section 2885.10 When Is a Grant or not exceed 30 years. Grants that BLM application. This provision was
TUP Effective? issues for a term of one year or longer proposed as section 2885.11, which
will terminate on December 31 of the cross references proposed section
This section explains that a grant or final year of the grant. The year in
TUP is effective after both you and BLM 2805.10. This section states that by
which we issued the grant, even though accepting a grant or TUP, you also agree
sign it. You must accept its terms and it may be only a partial year, counts as
conditions in writing and pay any to comply with, and be bound by, the
the first full year of the grant. This is terms and conditions set forth in
necessary rent and monitoring fees. because the MLA does not allow grants
After receiving and reviewing your paragraph (b) of this section.
for terms of greater than 30 years. For Under this final rule, during
application, BLM may send you an example, a grant issued for 30 years on
unsigned right-of-way grant or TUP for construction, operation, maintenance,
June 12, 2004, would expire on and termination of the project you must:
you to review. It will include terms, December 31, 2033. Another example, a
conditions, and stipulations that are (1) To the extent practicable, comply
grant issued for ‘‘two years’’ on with all existing and subsequently
discussed in section 2885.11. If you September 21, 2004, would expire on
agree with the terms, conditions, and enacted, issued, or amended Federal
December 31, 2005. laws and regulations and state laws and
stipulations of the unsigned grant or The term of a TUP may not exceed 3
TUP, you should sign and return it to regulations applicable to the authorized
years. BLM frequently issues TUPs on
BLM with any monitoring fee payment use. We reworded this provision in the
an anniversary year basis. For example,
that may still be due for the application. final rule by adding the phrase ‘‘To the
if BLM issued a grant on September 1,
If there has been no change in the terms, extent practicable,’’ a phrase that has
2003, and also issued an associated TUP
conditions, or stipulations, and all been in the Department’s regulations
for a three-year term, the TUP would
regulations, including section 2884.23, since 1979. A slight variation of this
expire on September 1, 2006.
remain satisfied, BLM will then sign the BLM considers the following factors phrase appears in section 28(v) of the
grant or TUP and return it to you with in establishing the term of a grant or MLA, 30 U.S.C. 185(v), which states that
a decision letter. If we deny your TUP: the Secretary ‘‘shall take into
application, the decision letter will (1) The cost of the pipeline and consideration and to the extent practical
notify you of the reason(s) and how you related facilities you plan to construct, comply with State standards for right-of-
can correct any deficiencies. operate, maintain, or terminate. In the way construction, operation, and
Your written acceptance of the grant final rule we reworded this sentence by maintenance.’’ It is worth noting that
or TUP constitutes an agreement adding ‘‘and related facilities you plan section 28(h)(2) states in part that the
between you and the United States that to construct, operate, maintain or Secretary ‘‘shall issue regulations * * *
your right to use the Federal lands, as terminate’’ because we wanted to be which shall include * * * requirements
specified in the grant or TUP, is subject clear that the cost includes the cost of to insure that activities in connection
to the terms and conditions of the grant any related facilities and other costs with the right-of-way or permit will not
or TUP and applicable laws and incurred over the life of the project, not violate applicable air and water quality
regulations. just the cost of project construction; standards nor related facility siting
Proposed section 2885.10 cross- (2) The pipeline or facility’s useful standards established by or pursuant to
referenced section 2805.11 of the life; law’’ (see 30 U.S.C. 185(h)(2)). This
proposed rule (final section 2805.13). (3) The public purpose served; and section also makes clear that a holder
The final rule replaces the cross- (4) Any potentially conflicting land must comply with any changes to
reference with the actual provision that uses. applicable law or regulation that occur
was cross-referenced. In the final rule Paragraph (a) of this section contains during the term of a right-of-way grant.
we also added a cross-reference to the minor editorial changes to make it easier This is consistent with longstanding
rent and monitoring fee provisions of to understand. We added the provision policy and previous section 2881.2(a);
the subpart. With the exception of these stating that grants with a term of one (2) Rebuild and repair roads, fences,
changes and some minor editorial year or longer terminate on December 31 and established trails destroyed or
changes, the rule remains as proposed. to make this section consistent with the damaged by constructing, operating,
This section is based on final section corresponding FLPMA regulation at maintaining, or terminating the project;

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(3) Build and maintain suitable (8) Assume full liability if third some chemicals will be on lease for
crossings for existing roads and parties are injured or damages occur to more than 90 days. After reviewing this
significant trails that intersect the property on or near the right-of-way or clause, we amended the final rule
project; TUP area (see section 2886.13); because it would be difficult to enforce
(4) Do everything reasonable to (9) Comply with project-specific and monitor and a more effective means
prevent and suppress fires on or in the terms, conditions, and stipulations, to address the issue is available. The
immediate vicinity of the right-of-way including requirements to: final rule states that you may only store
or TUP area. We reworded this (i) Restore, revegetate, and curtail or dispose of hazardous materials in
paragraph by removing the phrase ‘‘on erosion or any other rehabilitation accordance with the terms, conditions,
your own or at BLM’s request’’ because measure BLM determines is necessary; and stipulations of your grant or TUP;
it was not necessary; (ii) Ensure that activities in (12) Certify your compliance with all
(5) Not discriminate against any connection with the grant or TUP requirements of the Emergency Planning
employee or applicant for employment comply with air and water quality and Community Right-to-Know Act of
during any phase of the project because standards or related facility siting 1986, 42 U.S.C. 11001 et seq., when you
standards contained in applicable receive, assign, renew, amend, or
of race, creed, color, sex, or national
Federal or state law or regulations; terminate your grant or TUP. The
origin. You must also require
(iii) Control or prevent damage to proposed rule required an annual
subcontractors to not discriminate. We scenic, aesthetic, cultural, and
added the phrase ‘‘during any phase of certification from holders that they have
environmental values, including fish complied with all provisions of the
the project’’ to make it clear that the and wildlife habitat, and to public and
provision not to discriminate against Emergency Planning and Community
private property and public health and Right to Know Act. We amended the
any employee applied not only during safety. We added the phrase ‘‘scenic,
the construction of the facility, but for final rule to remove this annual
aesthetic, cultural, and’’ to the final rule certification because we did not want to
the term of the grant; to make it consistent with final section impose unnecessary requirements on
(6) Pay the monitoring fees and rent; 2805.12(i)(3) and existing policy and holders. We also added ‘‘amend’’ to the
(7) If BLM requires, obtain and/or added ‘‘private’’ property to be list of occasions you would need to
certify that you have a surety bond or consistent with 30 U.S.C. 185(h)(2)(C); certify that you are in compliance with
other acceptable security to cover any (iv) Protect the interests of individuals the EPCRA;
losses, damages, or injury to human living in the general area who rely on (13) Control and remove any release
health, the environment, and property the area for subsistence uses as that term or discharge of hazardous material on or
incurred in connection with your use is used in Title VIII of ANILCA (16 near the right-of-way or TUP area
and occupancy of the right-of-way or U.S.C. 3111 et seq.). In the final rule we arising in connection with your use and
TUP area, including terminating the replaced the term ‘‘subsistence occupancy of the right-of-way or TUP
grant or TUP, and to secure all purposes’’ with ‘‘subsistence uses’’ area, whether or not the release or
obligations imposed by the grant or TUP because that is the term ANILCA uses. discharge is authorized under the grant
and applicable laws and regulations. We We also added the cite to ANILCA; and or TUP. You must also remediate and
added the phrase ‘‘including (v) Ensure that you construct, operate, restore lands and resources affected by
terminating the grant or TUP’’ to maintain, and terminate the facilities on the release or discharge to BLM’s
emphasize that the termination phase of the lands in the right-of-way or TUP satisfaction and to the satisfaction of
a grant is a time when substantial area in a manner consistent with the any other Federal, state, tribal, or local
surface disturbing activities may occur, grant or TUP; agency having jurisdiction over the
necessitating use or modification of the (10) Immediately notify all Federal, land, resource, or hazardous material;
bond. We also added the phrase ‘‘and to state, tribal, and local agencies of any (14) Comply with all liability and
secure all obligations imposed by the release or discharge of hazardous indemnification provisions and
grant or TUP and applicable laws and materials reportable to such entity stipulations in the grant or TUP;
regulations’’ to make this section under applicable law. You must also (15) As BLM directs, provide
consistent with 30 U.S.C. 185(m) of the notify BLM at the same time, and send diagrams or maps showing the location
MLA. This section also explains that BLM a copy of any written notification of any constructed facility. In the final
your bond must cover liability for you delivered. We reworded this rule we added this provision to specify
damages or injuries resulting from paragraph to make it easier to that BLM may require holders to
releases or discharges of hazardous understand and removed the phrase provide as-built surveys, maps, or
materials. We took out the phrase ‘‘actual or threatened release’’ from the diagrams of constructed facilities. This
‘‘actual or threatened’’ before ‘‘releases proposed rule. Several commenters provision is consistent with existing
or discharges of hazardous materials’’ pointed out that there is no requirement policy and previous section 2881.2(b)
since we do not require a bond for to report threatened releases; which states that BLM grants ‘‘shall
liability for threatened releases, only (11) Not dispose of or store hazardous contain such terms, conditions, and
actual releases. BLM may require a bond materials on your right-of-way or TUP stipulations as may be prescribed by the
or increase or decrease the value of an area, except as provided by the terms, authorized officer regarding extent,
existing bond or other acceptable conditions, and stipulations of your duration, survey, location, construction,
security at any time during the term of grant or TUP. Any storage of hazardous operation, maintenance, use, and
the grant. We also added the phrase ‘‘or waste on site must be in compliance termination;’’
other acceptable security’’ to be with applicable Federal and state law. (16) Construct, operate, and maintain
consistent with language in previous The proposed rule specified that you the pipeline as a common carrier. This
regulations and 30 U.S.C. 185(m) of the may not store hazardous materials on means that the pipeline owners and
MLA. It is not only surety bonds that your right-of-way for more than 90 days, operators must accept, convey,
may increase or decrease, but also any less if required by law. We received transport, or purchase without
other acceptable security that was used several comments related to crude oil discrimination all oil or gas delivered to
to secure the obligations imposed by the storage that would be on lease for the the pipeline without regard to where the
grant or TUP; life of an oil well and comments that oil and gas was produced (i.e., whether

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on Federal or non-federal lands). Where produced crude oil by pipeline without the foreseeable risk and hazards present
natural gas not subject to state Presidential approval (30 U.S.C. 185(u) as the bond amount. They said that this
regulatory or conservation laws and (s) and 50 U.S.C. App. 2401); would make the bond provision
governing its purchase by pipeline (19) Not exceed the right-of-way consistent with the liability provisions
companies is offered for sale, each width that is specified in the grant of the rule. We did not change the final
pipeline company must purchase, without BLM’s prior written rule as a result of this comment. There
without discrimination, any such authorization. If you need a right-of-way is no limitation set by this rule on the
natural gas produced in the vicinity of wider than 50 feet plus the ground maximum bond amount. We believe
the pipeline. Common carrier provisions occupied by the pipeline and related that the bond amount should be set on
of this paragraph do not apply to natural facilities, see section 2885.14 of this a case-by-case basis and the amount is
gas pipelines operated by: subpart. We reworded this paragraph to dependent on the nature and risk of an
(A) A person subject to regulation make it clear that an MLA pipeline authorized use. The $5 million limit
under the Natural Gas Act (15 U.S.C. right-of-way may not always be 50-feet referenced by this commenter seems to
717 et seq.); or wide. BLM can issue a grant authorizing be referring to the maximum limit for
(B) A public utility subject to a right-of-way less than 50-feet wide if strict liability found at proposed section
regulation by state or municipal site specific conditions warrant, or if 50 2807.12(f). In the final rule, we reduced
agencies with the authority to set rates feet is not necessary to construct the the upper limit for strict liability to $2
and charges for the sale of natural gas pipeline. Additionally, section 185(d) of million. Liability in excess of $2 million
to consumers within the state or the MLA states that a right-of-way ‘‘shall is possible under parts 2800 and 2880,
municipality. not exceed fifty feet plus the ground but such liability will be determined by
We reworded proposed section occupied by the pipeline * * * unless the ordinary rules of evidence.
2885.11(b) by removing the phrase ‘‘or the Secretary or agency head finds, and Several commenters said that BLM
a logical part of the system of which this records the reason for his finding, that must identify how we determine the
pipeline right-of-way is a part’’ from the in his judgment a wider right-of-way is amount of the bond. Commenters said
description of pipeline because the necessary for operation and that BLM should list those factors,
language was not consistent with 30 maintenance after construction, or to which the agency considers when
U.S.C. 185(r)(1) of the MLA or with protect the environment or public setting the amount of the bond. We did
previous regulations. We removed a safety;’’ not change the final rule as a result of
reference to ‘‘joint owners’’ for the same (20) Not use the right-of-way or TUP this comment. We believe it reasonable
reason. We also added ‘‘Where natural area for any use other than that to establish the bond amount on a case-
gas not subject to state regulatory or authorized by the grant or TUP. If you by-case basis. This decision will be part
conservation laws governing its require other pipelines, looping lines, or of the administrative record for the case.
purchase by pipeline companies is other improvements not authorized by Among the factors that we will use to
offered for sale, each pipeline company the grant or TUP, you must first secure determine bond amounts are the
must purchase, without discrimination, BLM’s written authorization; expected costs to the agency to restore
any such natural gas produced in the (21) Not use or construct on the land and reclaim disturbed areas and to
vicinity of the pipeline’’ because it is in in the right-of-way or TUP area until: repair damage to scenic, aesthetic,
previous regulations and in 30 U.S.C. (i) BLM approves your detailed plan cultural, and environmental values and
185(r)(3)(B) of the MLA. We erroneously for construction, operation, and to protect public health and safety.
omitted it from the proposed rule; termination of the pipeline, including Those costs can include both direct
(17) Within 30 calendar days after provisions for rehabilitation of the right- costs for things such as equipment and
BLM requests it, file rate schedules and of-way or TUP area and environmental labor and indirect costs for
tariffs for oil and gas, or derivative protection. We amended the proposed administrative overhead costs.
products, transported by the pipeline as section 2885.11(b)(6) by removing the Several commenters said that
a common carrier with the agency BLM phrase ‘‘If appropriate’’ from this applicants should have the right to
prescribes, and provide BLM proof that requirement for approval of a detailed appeal the bond amount, especially
you made the required filing. This plan prior to construction because all since the BLM retains the right to
provision is in the final rule to resolve pipeline rights-of-way must have this increase an existing bond at any time
situations where a holder may not have detailed plan; and during the term of the grant. BLM agrees
allowed other companies to transport (ii) You receive a Notice to Proceed with the commenter and the final rule
products in its pipelines at a reasonable for all or any part of the right-of-way. In contains a provision that provides for
cost. If the pipeline is an interstate certain situations BLM may waive this the appeal of any of the terms,
pipeline, the operator would have to requirement in writing. We changed conditions, and stipulations of a grant
provide its rate schedule to the FERC. If proposed section 2885.11(b)(6) to state (see section 2881.10 of these
FERC determined the operator was not that BLM may not issue a Notice to regulations). If a new right-of-way grant
operating the pipeline as a common Proceed (NTP) for some MLA right-of- has a bond requirement as one of the
carrier, BLM would then take corrective way grants. Your grant will specifically terms and conditions, the holder would
action, including issuing an immediate state if an NTP is required prior to be able to appeal that term and
temporary suspension of the grant for construction. An NTP is typically issued condition. If BLM added a bond
not complying with the common carrier as part of a preconstruction conference requirement to an existing right-of-way
provisions of the grant. If the pipeline with BLM, the holder, and its grant, it would be accomplished by
is an intrastate line, the operator would contractor(s); and sending a new decision changing the
need to provide its rate schedules to the (22) Comply with all other terms and conditions of the grant. This
appropriate state agency, such as a state stipulations that BLM may require. decision is also appealable.
oil and gas commission, who would We received many comments Several commenters said that there
make the same determination as to regarding bonding for right-of-way was ‘‘no such thing as liability coverage
reasonable costs; grants. Several commenters suggested for potential or threatened damages.’’
(18) With certain exceptions (listed in that the regulations set a $5 million They said that when damage occurs,
the statute), not export domestically maximum or an amount comparable to then there is an event that causes

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damage. BLM agrees and changed the subsurface and air space, and authorize FLPMA, the MLA does not provide for
rule in several locations to remove the use of the right-of-way or TUP area for any reductions or waivers of rent.
phrase ‘‘threatened release.’’ compatible uses. You may not charge for BLM will charge rent beginning on
the use of the lands made subject to the first day of the month following the
Section 2885.12 What Rights Does a
such additional right-of-way grants; effective date of the grant or TUP
Grant or TUP Convey?
(C) Retain ownership of the resources through the last day of the month when
This section is new to the final rule. of the land covered by the grant or TUP, the grant or TUP terminates. Example: If
The proposed rule at section 2885.11 including timber and vegetative or a grant or TUP becomes effective on
only cross-referenced similar provisions mineral materials. You have no right to January 10 and terminates on September
in proposed section 2805.12. This use these resources, except as noted in 16, the rental period would be February
section states the provisions from that section 2885.12 of this subpart. In the 1 through September 30, or 8 months.
section instead. It states that a grant or final rule we replaced the phrase You would pay rent for 8⁄12 of the year.
TUP conveys only those rights which it ‘‘products of the land including living BLM sets or adjusts the annual rental
expressly contains. BLM issues grants and non living resources’’ with the periods to coincide with the calendar
and TUPs subject to the valid existing phrase ‘‘resources of the land covered year by prorating the first year’s rent
rights of others, including the United by the grant or TUP, including timber based on 12 months. For example, a 10-
States. The rights conveyed to a holder and vegetative or mineral materials and year grant issued August 29, 2004,
by a grant or TUP include the right to: any other living or non-living would expire on December 31, 2013.
(A) Use the described lands to resources.’’ This is consistent with Annual rent would be calculated using
construct, operate, maintain, and proposed section 2805.13(c). The the linear rent schedule and total rent
terminate facilities within the right-of- amended wording makes it clear that for the term of the grant would be
way or TUP area for authorized the United States retains control over calculated by multiplying the annual
purposes under the terms and the resources located on the right-of- rent rate by 9 4⁄12. If you disagree with
conditions of the grant or TUP; way or TUP areas. Except as noted in the rent that BLM charges, you may
(B) Allow others to use the land as section 2885.12, if the holder needs to appeal the decision under section
your agent in the exercise of the rights remove timber, vegetative, or mineral 2881.10 of this part.
that the grant or TUP specifies; materials from these areas during
(C) Do minor trimming, pruning, and construction, it needs a Materials Act Section 2885.16 When Do I Pay Rent?
removing of vegetation on the right-of- permit for that action; This section explains that you must
way or TUP areas to maintain the areas (D) Determine whether or not your pay rent for the initial rental period
or any facility; grant is renewable; and before BLM issues you a grant or TUP.
(D) Use common varieties of stone
(E) Change the terms and conditions For example, a 30-year grant issued on
and soil which are necessarily removed
of your grant or TUP as a result of July 20, 2004, with a ten-year rental
during construction of the pipeline,
changes in legislation, regulation, or as payment plan, would expire on
without additional BLM authorization
otherwise necessary to protect public December 31, 2033. The initial rental
or payment, in constructing the pipeline
health or safety or the environment. period would be from August 1, 2004
within the authorized right-of-way or
We did not carry forward proposed through December 31, 2013 or 9 5⁄12
TUP area; and
(E) Assign the grant or TUP to section 2805.13(d) into this final section years. The rent for the initial rental
another, provided that you obtain BLM’s because reciprocal access roads do not period would be the annual rental rate
prior written approval. apply to oil and gas pipelines. (from the 2004 linear rent schedule)
We did not carry forward into this multiplied by 9 5⁄12. You make all other
Section 2885.14 What Happens If I
final rule the provisions in proposed rental payments according to the
Need a Right-of-Way Wider Than 50
section 2805.12(b), because BLM does payment plan described in section
Feet Plus the Ground Occupied By the
not issue grants under the MLA that 2885.21. After the first rental payment,
Pipeline and Related Facilities?
would authorize the holder to sublease all rental payments are due on January
or allow other parties to use the facility. This section explains that you may 1 of the first year of each succeeding
apply to BLM at any time for a right-of- rental period for the term of your grant.
Section 2885.13 What Rights Does the way wider than 50 feet plus the ground The second rental payment period in
United States Retain? occupied by the pipeline and related this example would be from January 1,
This section is new to the final rule. facilities. In your application you must 2014 through December 31, 2023. The
Proposed section 2885.11 only cross- show that the wider right-of-way is rent for the second rent payment period
referenced similar provisions in necessary to: would be the annual rental rate (from
proposed section 2805.13. This section (A) Properly operate and maintain the the 2014 linear rent schedule)
states the provisions instead. This pipeline after you have constructed it; multiplied by 10. The third rental
section describes the rights that the (B) Protect the environment; or payment period would be from January
United States retains and explains that (C) Provide for public safety. 1, 2024 through December 31, 2033. The
the United States may exercise any BLM will notify you in writing of its rent for the third rental payment period
rights the grant or TUP does not finding(s) and its decision on your would be the annual rental rate (from
expressly convey to you. These include application for a wider right-of-way. If the 2024 linear rent schedule)
the United States’ right to: the decision is adverse to you, you may multiplied by 10.
(A) Access the lands covered by the appeal it under section 2881.10 of this In proposed sections 2885.11 and
grant or TUP at any time and enter any part. 2885.13 we cross-referenced, but did not
facility you construct on the right-of- repeat, the parallel rental provisions in
Section 2885.15 How Will BLM Charge part 2800 to make them applicable to
way or TUP area. BLM will give you
Me Rent? the part 2880 regulations. We added this
reasonable notice before it enters any
facility on the right-of-way or TUP area; This section explains how BLM will section to the final rule so it would
(B) Require common use of your right- charge rent for MLA right-of-way grants stand alone. See the discussion in the
of-way or TUP area, including or TUPs. Please note that unlike preamble for section 2806.12 for

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additional information on rental Section 2885.18 When Must I Make Stop 1000 LS, Washington, DC 20240.
payments. Estimated Rent Payments to BLM? BLM also posts the current linear
This section explains that to assist us schedule on BLM’s National Home Page
Section 2885.17 What Happens If I Pay on the Internet at http://www.blm.gov.
the Rent Late? in processing your application for a
right-of-way in a timely manner, BLM Several commenters said that it was
Proposed section 2885.15 incorrectly may estimate rent payments and require arbitrary and capricious for BLM to
cross-referenced proposed section you to pay that amount when it issues exclude the oil and gas industry from
2806.12 rather than proposed section the grant or TUP. The rent amount may reductions in rent payments. We did not
2806.13. Instead of merely correcting change once BLM determines the actual change the final rule as a result of this
the cross reference in this section, we rent of the grant or TUP. BLM will comment. The oil and gas industry is
repeat here the discussion of the late credit you for any rental overpayment, not excluded from hardship rental
payment policy in final section 2806.13. and you are liable for any reductions for access roads under
Please see that section of the preamble underpayment. This section does not FLPMA (see section 2806.15). The MLA,
for a complete discussion of the changes apply to rent payments made under the however, does not permit us to reduce
from the proposed rule. linear rent schedule in this part. This rents for oil and gas pipelines. This
section is the same as section 2806.16 of policy is not new and has been part of
This section explains that if BLM does previous BLM regulations and policy
not receive the rent payment within 15 this rule. It does not apply to rental
determined from the linear schedule, (see previous section 2883.1–2).
calendar days after the rent was due,
BLM will charge you a late payment of only for rent determined by an appraisal Section 2885.20 How Will BLM
$25.00 or 10 percent of the rent you or by some other means. See the Calculate My Rent for Linear Rights-of-
owe, whichever is greater, not to exceed preamble discussion in section 2806.16 Way the Schedule Covers?
$500 per authorization. If BLM does not for an explanation of why we have this
rule. This section explains that BLM
receive your rent payment and late calculates your rent for a linear right-of-
payment fee within 30 days after rent Section 2885.19 What Is the Rent for a way by multiplying the rent per acre for
was due, BLM may collect other Linear Right-of-Way? the appropriate category of use and
administrative fees as provided by This section explains that, except as county zone price from the current
statute, such as the Debt Collection noted in paragraph (b) of this section, schedule by the number of acres in the
Improvement Act of 1996. If BLM does BLM will use the Per Acre Rent right-of-way or TUP area that fall into
not receive the rent, late payment fee, Schedule at section 2806.20(b) of this those categories and the number of years
and any administrative fees within 90 chapter to calculate the rent for MLA in the rental period. For example: (rent
calendar days after the rent was due, grants and TUPs and that the schedule per acre) X (number of acres) X (number
BLM may terminate your grant and you is updated annually. of years in the rental period) = rent for
may not remove any facility or This section also explains that BLM a linear right-of-way. If BLM has not
equipment without BLM’s written may determine your rent using the previously used the rent schedule to
permission. The rent due, late payment methods described in section 2806.50 of calculate your rent, we may do so after
fee, and any administrative fees remain this title, rather than by using the rent giving you reasonable written notice.
a debt that you owe to the United States. schedule cited in paragraph (a) of this BLM intends to give reasonable written
If you pay the rent, late payment fees, section, if the rent determined by notice to the holders of any existing
and any administrative fees after BLM comparable commercial practices or an grant that we put on the schedule when
has terminated the grant, the grant is not appraisal would be 10 or more times the rent was previously determined by some
automatically reinstated. You must file rent from the schedule. This section other means. With the exception of
a new application with BLM. BLM will gives BLM the discretion to deviate from minor editorial changes, this section is
consider the history of your failure to the schedule only if certain conditions similar to proposed sections 2885.13
timely pay rent in deciding whether to apply. Current policy constrains our use and 2806.16 and final section 2806.22.
issue you a new grant. This is consistent of alternate means to determine rent as Section 2885.21 How Must I Make
with the proposed rule. provided under section 2806.50 of this Rent Payments for My Grant or TUP?
The most significant change to the title. BLM policy guidance, outlined in
instruction memorandum WO–IM Under this section, you must make
rental provisions of this rule is adding
2002–172, states that BLM, at this time, either annual payments or payment for
a late payment fee. We asked for
will only use the current schedule to more than 1 year, as follows:
comments on this subject in the
proposed rule at 64 FR 32112 (June 15, calculate rent for all linear right-of-way (A) For TUPs you must make a one-
1999). The procedures are the same for uses. The current policy of not deviating time nonrefundable payment for the
both FLPMA and MLA grants. Please from the linear schedule is in response term of the TUP. For grants, you must
see the preamble for final section to Congressional direction contained in make either nonrefundable annual
2806.13 and the discussion related to the appropriations act for the payments or nonrefundable payments
late payment fees and administrative Department of the Interior for FY 2001 for more than 1 year. Any holder may
fees for more information about the (Pub. L. 106–291). Once you are on a make a one-time payment of the
process. rent schedule, BLM will not remove you required rent in advance for the entire
from it unless the BLM State Director term of the grant. If you choose not to
You may appeal to the Interior Board decides to remove you from paying rent make a one-time payment, you must pay
of Land Appeals any adverse action under paragraph (b) of this section, or according to one of the following
BLM takes against your grant or TUP you file an application to amend your methods:
under section 2881.10 of this part. grant. (1) If you are an individual and your
We received several comments on late You may obtain the current linear annual rent is $100 or less, you must
payment assessments. Please see the right-of-way rent schedule from any pay at 10-year intervals not to exceed
preamble discussion of section 2806.13 BLM state or field office or by writing the term of the grant. If your annual rent
for a discussion of the comments. to: Director, BLM 1849 C St. NW., Mail is greater than $100, you may pay

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annually or at multi-year intervals that pipeline. The holder cannot operate of the rationale for changing the criteria
you may choose; or ancillary communication facilities for a for charging for monitoring. Our
(2) Everyone else must pay rent in commercial purpose, (e.g., containing proposal at section 2885.13(b) would
advance at ten-year intervals not to tenants or customers). If a grant holder’s have placed a holder in the same
exceed the term of the grant. For communication facility is not category for monitoring purposes as the
example, if you are a corporation and authorized as part of a pipeline grant, holder occupied for processing
your annual rent is $110, you are TUP, or other authorization, BLM would purposes. Alternatively, we noted that if
required to pay rent at ten year intervals process a communication use lease we should establish monitoring fees
and the rent due would be $1,100; under part 2800 of this title and we separate from processing fees, we would
(B) BLM considers the first partial would calculate rent for the facility establish monitoring categories based on
calendar year in the rent payment under section 2806.30 of the FLPMA the number of work hours involved,
period to be the first year of the rental right-of-way regulations. We proposed including field examinations (see 64 FR
payment term. BLM pro-rates the first this provision at section 2806.25 and 32109).
year rental amount based on the number include it in this part to cover these The fee for monitoring Categories 1
of months left in the calendar year after situations. On occasion, BLM authorizes through 4 are one-time fees and are not
the effective date (issuance date) of the internal communications uses for the refundable. We added this language to
grant. For example, if BLM issued the holder of an oil and gas lease under the the final rule to be consistent with
grant in the example described above on oil and gas lease itself if the previous section 2883.1–1(c), which
September 10, 2003, and the annual communication facility is located inside made these application category fees
rental for the grant is $110, the first the boundary of the oil and gas lease non-refundable.
year’s rent would be prorated for the 3 and the function of the facility is to This section contains a chart that
months (rent begins the first day of the serve the lease. explains the fees for monitoring
month following the effective date of the categories based on the estimated work
grant (see section 2885.15)) remaining in Section 2885.23 If I Hold a Grant or hours involved. In the final rule we add
2003, or $27.50. Therefore the total TUP, What Monitoring Fees Must I Pay? the chart to illustrate the categories,
rental for the first ten years of this grant This section is based on proposed work hours, and associated monitoring
would be $1,017.50 ($27.50 for the first section 2885.13 and final section fee as of the effective date of the rule,
year + $110 per year for the next 9 2805.16. This section explains that you similar to the chart in section 2805.16
years). must pay to BLM a fee for any costs the and to make the sections consistent.
This section is based on final section United States incurs in monitoring the This section also explains that BLM
2806.23 of this rule. following six activities: Construction, annually updates Category 1 through 4
operation, maintenance, and monitoring fees in the manner described
Section 2885.22 How Will BLM
termination of the pipeline and at section 2884.12(c) of this part. BLM
Calculate Rent for Communication Uses
protection and rehabilitation of the updates Category 5 monitoring fees as
Ancillary to a Linear Grant, TUP, or
affected Federal lands your grant or TUP specified in the Master Agreement. The
Other Use Authorization?
covers. We replaced the phrases ‘‘within monitoring cost schedule is available
This section explains that when a grant areas’’ and ‘‘protecting and from any BLM state or field office and
communication use is ancillary to, and rehabilitating the affected area’’ with ‘‘of on BLM’s National Home Page on the
authorized by BLM under, a grant or the pipeline’’ and ‘‘protection and Internet at http://www.blm.gov.
TUP for a linear use, or some other type rehabilitation of the affected Federal We received several comments on the
of authorization (e.g., a mineral lease or lands’’ to make it clear what activities monitoring fees in the proposed rule.
sundry notice), BLM will determine the we are monitoring and where. These comments relate to both part 2800
rent using the linear rent schedule or This final section explains that all and 2880. Please see the discussion of
rent scheme associated with the other holders must pay to BLM a fee for any those comments in the preamble of final
authorization, and not the costs the United States incurs in section 2805.16.
communication use rent schedule. monitoring the construction, operation,
It is common for oil and gas maintenance, and termination of a Section 2885.24 When Do I Pay
companies to need communications pipeline and protection and Monitoring Fees?
facilities for internal two-way radio rehabilitation of Federal land. This is This section explains that for
communications and for internal consistent with section 28(l) of the Monitoring Categories 1 through 4,
microwave relays to control valves and Mineral Leasing Act which states, ‘‘The unless BLM otherwise directs, you must
monitor large pipelines. Sometimes applicant for a right-of-way or permit pay monitoring fees when you submit to
these facilities are located along the shall reimburse the United States for BLM your written acceptance of the
linear pipeline right-of-way area and administrative and other costs incurred terms and conditions of the grant or
sometimes they may be located on in processing the application, and the TUP. If you have a Master Agreement
nearby mountain tops. In either case, holder of a right-of-way or permit shall (Monitoring Category 5) you must pay
these facilities may be authorized by an reimburse the United States for the costs the monitoring fees as specified in the
MLA pipeline right-of-way grant as long incurred in monitoring the construction, agreement. BLM will not issue your
as they are for internal communications. operation, maintenance, and grant or TUP until it receives the
In these cases we do not use the termination of any pipeline and related required payment. Proposed section
communication use schedule (see facilities on such right-of-way or permit 2885.13(c) used the words ‘‘BLM will
section 2806.30) to determine rent. This area * * *.’’ (30 U.S.C. 185(l)). not accept your written acceptance of
is because the communication use only BLM bases the monitoring category on the grant until you pay the fees.’’ In the
supports the operation of the primary the estimated number of work hours final rule we replaced this phrase with
use (the pipeline), and rent for a necessary to monitor your grant or TUP ‘‘BLM will not issue your grant or TUP
pipeline is determined by the linear just as we base the processing fee on the until it receives the required payment’’
schedule. Instead, we add the acres for estimated number of hours to process to be more clear.
the ancillary communication site into the grant. See the preamble discussion If you have a Monitoring Category 6
the linear rental calculation for the at final section 2805.16 for a discussion application, BLM may periodically

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estimate the costs of monitoring your When you can start depends on the responsible for regulating these
use of the grant and will include this in terms of your grant or TUP. You can activities on lands under its jurisdiction.
the costs associated with processing fees start activities when you receive the For grants and TUPs involving lands
described in section 2884.12 of this part. grant or TUP you and BLM signed, under the jurisdiction of more than one
If BLM has underestimated the unless the grant or TUP requires that agency (including agencies of the
monitoring costs, we will notify you of BLM provide a written Notice to Department of the Interior other than
the shortfall. If your payments exceed Proceed. If your grant or TUP contains BLM), the head of each agency will be
the actual costs that Federal employees a Notice to Proceed requirement, you responsible for regulating the grant or
incur for monitoring, BLM will may not initiate construction, operation, TUP on the lands under its jurisdiction,
reimburse you the difference or adjust maintenance, or termination on the using its own regulations if such
the next payment to reflect the right-of-way or TUP area until BLM regulations exist. BLM and another
overpayment. Unless BLM gives you issues you a Notice to Proceed. agency may enter into an agreement that
written authorization, you may not Under this section, before you begin specifies that BLM may regulate some or
offset or deduct the overpayment from operating your pipeline or related all of the activities on the other agency’s
your payments. The financial plan for facility authorized by a grant or TUP, lands. The MLA at 30 U.S.C. 185(c)(2)
your Processing Category 6 application you must certify in writing to BLM that allows for these agreements. Such
will include BLM’s estimate of the the pipeline system: agreements could be specific to
actual processing and monitoring costs. (A) Has been constructed and tested individual grants or TUPs or they could
Both fees are deposited into the same according to the terms of the grant or be more general, covering all MLA
project account for your project. If our TUP; and grants and TUPs that include lands
estimates were accurate, we will have (B) Is in compliance with all required administered by the other agency.
spent all the processing fees by the time plans, specifications, and Federal and Under these regulations and 30 U.S.C.
we are ready to issue the grant and you state laws and regulations. 185(c)(2), BLM is responsible for
In the proposed rule at section processing renewal applications for all
will be asked to deposit the monitoring
2886.10, the first sentence of this
fee estimate when you accept the terms grants involving its lands and those
section cross-referenced proposed
and conditions of the grant or TUP. If involving lands under the jurisdiction of
section 2807.10. In the final rule we
there is processing money still available two or more agencies, just as it is for
took the revised language from final
in the account when the grant is issued, processing applications for new grants
section 2807.10, expanded it to include
we will apply the balance to the or TUPs.
TUPs, and put it in this section as We received no substantive comments
monitoring fee amount. At the end of
paragraph (a), rather than cross- on this section. With the exception of
the project, we will return any
referencing it. We also restructured the editorial changes, this section remains
remaining balance in the account to the
remainder of the proposed section as as proposed.
holder.
paragraph (b), which is consistent with
For Monitoring Categories 1 through 4 Section 2886.12 When Must I Contact
previous section 2883.3. With the
and 6, if you disagree with BLM’s BLM During Operations?
exception of the substitution and minor
category determination, you may appeal
editorial changes, this section remains This section explains that you must
the decision under section 2881.10 of
as proposed. We received no substantive contact BLM:
this part.
This section was proposed as section comments on this section. (A) At the times specified in your
2885.13. We made minor word changes Section 2886.11 Who Regulates grant or TUP;
to the final rule that do not alter the Activities Within My Right-of-Way or (B) When your use requires a
meaning of the section, but make it TUP Area? substantial deviation from the grant or
consistent with wording in section TUP. You must obtain BLM’s approval
This section explains that after BLM before you begin any activity that is a
2805.17 of this title. issues the grant or TUP, the head of the substantial deviation;
Subpart 2886—Operations On MLA agency having administrative (C) When there is a change affecting
Grants and TUPs jurisdiction over the Federal lands your application, grant, or TUP,
Subpart 2886 regulates operational involved will regulate your grant or TUP including, but not limited to, changes
activities on grants and TUPs. It activities in conformance with the Act, in:
explains: appropriate regulations, and the terms (1) Mailing address;
(A) When you can start activities on and conditions of the grant or TUP. It (2) Partners;
your grant or TUP and who regulates also explains that BLM and the other (3) Financial conditions; or
your activities; agency head may reach another (4) Business or corporate status; or
(B) The times you must contact BLM; agreement for administrative (D) When BLM requests it.
(C) Your liabilities under the grant or jurisdiction. We proposed this section as section
TUP; Section 28(c)(2) of the MLA, 30 U.S.C. 2886.13, which cross-referenced
(D) What happens with your grant or 185(c)(2), provides that ‘‘Each agency proposed section 2807.11. In the final
TUP if the lands in the grant change head shall administer and enforce the rule we took the revised language from
jurisdiction; provisions of this section, appropriate final section 2807.11 and put it in this
(E) The conditions under which BLM regulations, and the terms and section, rather than cross-referencing it.
may suspend your activities or conditions of rights-of-way or permits We deleted proposed paragraph
terminate a grant or TUP; and insofar as they involve Federal lands 2807.11(d) from the final rule because
(F) What happens to any facilities on under the agency head’s jurisdiction.’’ submitting the certificate of
a grant or TUP when it terminates. In the context of final section 2886.11, construction itself is a contact with BLM
‘‘activities’’ refers to construction and and therefore adding it to the list of
Section 2886.10 When Can I Start operational activities, and amendments, times you must contact BLM is
Activities Under My Grant or TUP? assignments, suspensions, terminations, unnecessary. We also added references
This section explains when you can and collecting rent and monitoring fees. to TUPs, where appropriate. Please see
start activities under a grant or TUP. Under this final rule, BLM is the discussion of section 2807.11 for an

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explanation of the other changes to this of laws of the jurisdiction where the section 104(g) of S. 1081, a predecessor
final section and responses to public damages occurred. to section 28(x)(1) of the MLA, notes
comments. If you cannot satisfy claims for injury that governmental entities may not be
or damage, any owners of an interest in legally able to assure protection of the
Section 2886.13 If I Hold a Grant or a grant or TUP and all affiliates or United States because of limitations in
TUP, for What Am I Liable? subsidiaries of any holder of a grant or state law or State Constitutions.
This section explains your liabilities TUP, except for corporate stockholders, The section also explains that BLM
as a grant or TUP holder. You are liable are jointly and severally liable to the may require you to provide a bond,
to the United States for any damage or United States. If BLM issues a grant or insurance, or other acceptable security
injury it incurs in connection with your TUP to more than one holder, each is to:
use and occupancy of the right-of-way jointly and severally liable. Joint and (A) Protect the liability exposure of
or TUP area. Similarly, you are liable to several liability in this context means the United States to claims by third
third parties for any damage or injury that each person is responsible for the parties arising out of your use and
they incur in connection with your use full amount of liability if the other(s) occupancy of the right-of-way or TUP
and occupancy of the right-of-way or cannot satisfy the liability. This area;
TUP area. provision is in previous regulations at (B) Cover any losses, damages, or
You are also strictly liable for any sections 2883.1–4(g) and (i). injury to human health, the
activity or facility associated with your This section also explains that by environment, and property incurred in
right-of-way or TUP area which BLM accepting the grant or TUP, you agree to connection with your use and
determines presents a foreseeable fully indemnify or hold the United occupancy of the right-of-way or TUP
hazard or risk of damage or injury to the States harmless for liability, damage, or area; and
United States. BLM will specify in the claims arising in connection with your (C) Cover any damages or injuries
grant or TUP any activity or facility use and occupancy of right-of-way or resulting from the release or discharge
posing such hazard or risk, and the TUP areas. of hazardous materials incurred in
financial limitations on damages The provisions of this section do not connection with your use and
commensurate with such hazard or risk. limit or exclude other remedies. This occupancy of the right-of-way or TUP
BLM will not impose strict liability for provision is consistent with existing area. We took out the phrase ‘‘actual or
damage or injury resulting primarily policy and previous section 2883.1– threatened’’ before ‘‘release or discharge
from an act of war or the negligence of 4(h). of hazardous materials’’ since we do not
the United States, except as otherwise In the proposed rule at section require a bond for liability for
provided by law. As used in this 2886.15, we cross-referenced proposed threatened releases, only actual releases.
section, strict liability extends to costs section 2807.12. In the final rule we The section also explains that based
incurred by the Federal Government to took the revised language from final on your record of compliance and
control or abate conditions, such as fire section 2807.12 and put it in this changes in risk and conditions, BLM
or oil spills, which threaten life, section, rather than cross-referencing it. may require you to increase or decrease
property, or the environment, even if We also made this section applicable to the amount of your security.
the threat occurs to areas that are not TUPs. The language in section 2807.12 The provisions of this section do not
under Federal jurisdiction. This liability does not include TUPs because final limit or exclude other remedies.
is separate and apart from liability part 2800 does not provide for TUPs. This section was proposed as part of
under other provisions of law. The MLA does provide for TUPs, so it section 2886.15, which cross-references
This section explains that you are was necessary to add the references to proposed section 2807.12, which in turn
strictly liable to the United States for them. Please see the discussion of final cross-references proposed section
damage or injury up to $2 million for section 2807.12 for an explanation of 2807.13. In the final rule we took the
any one incident. This financial the other changes to this final rule. revised language from final section
limitation does not apply to the release There were numerous public 2807.13 and put it in this section, rather
or discharge of hazardous substances on comments on the liability sections of the than cross-referencing it, and also added
or near the grant or TUP area, or as proposed rules. Three comments references to TUPs.
otherwise provided by law. BLM will specifically related to the proposed Please see the discussion of section
determine your liability under Parts MLA rule, saying that no company can 2807.13 for an explanation of the other
2800 and 2880 for any amount in excess agree to strict liability for facilities in changes to this final rule and responses
of the $2 million strict liability the oil field which are required by BLM to public comments.
limitation (as adjusted) through the to be open to the public. Please see the
ordinary rules of negligence. Please see Section 2886.15 How Is Grant or TUP
discussion of final section 2807.12 for
the discussion in section 2807.12 of this Administration Affected if the BLM
responses to these and the other liability
preamble for a further discussion of the Land My Grant or TUP Encumbers Is
provision comments.
strict liability cap. Transferred to Another Federal Agency
This section explains that the rules of Section 2886.14 As Grant or TUP or Out of Federal Ownership?
subrogation apply in cases where a third Holders, What Liabilities Do State, The section explains that if there is a
party caused the damage or injury. This Tribal, and Local Governments Have? proposal to transfer the BLM land your
means that when a grant or TUP holder This section explains that if you are grant or TUP encumbers to another
compensates the United States in strict a state, tribal, or local government or its Federal agency, BLM may, after
liability for damage or injury caused by agency or instrumentality, you are liable reasonable notice to you, transfer
a third party, the grant or TUP holder to the fullest extent law allows at the administration of your grant or TUP, for
steps into the place of the United States time that BLM issues your grant or TUP. the lands BLM formerly administered,
and has the right to pursue If you do not have the legal power to to another Federal agency, unless doing
compensation from the third party for assume full liability, you must repair so would diminish your rights. If BLM
the damage or injury done to the United damages or make restitution to the determines that your rights would be
States. A similar provision appears at 30 fullest extent of your powers. Senate diminished by such a transfer, BLM can
U.S.C. 185(x)(7), calling for application Report No. 93–207, in commenting on still transfer the land, but retain

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Federal Register / Vol. 70, No. 77 / Friday, April 22, 2005 / Rules and Regulations 21049

administration of your grant or TUP transfer) of the lands included in the sending or hand delivering to you or
under existing terms and conditions. grant could be the most desirable your agent at your address a written
It also explains that if there is a option. suspension order explaining the reasons
proposal to transfer the BLM land your See the discussion of final section for it.
grant or TUP encumbers out of Federal 2807.15 for an explanation of the other You may file a written request for
ownership, BLM may, after reasonable changes to the final rule and responses permission to resume activities at any
notice to you and in conformance with to public comments. Please also note time after BLM issues the order giving
existing policies and procedures, do one that the discussion of considering the facts supporting your request and
of the following three things: extending the term of an existing grant the reason(s) you believe that BLM
(A) Transfer the land subject to your to that of a perpetual grant before should lift the order. BLM must grant or
grant or TUP. In this case, transferring the land does not apply to deny your request within 5 business
administration of your grant or TUP, for grants made under this part. The MLA days after receiving it. If BLM does not
the lands BLM formerly administered, is limits grants BLM issues under this part respond within 5 business days, BLM
transferred to the new owner of the to 30-year terms. has denied your request. You may
land; appeal the denial under section 2881.10
(B) Transfer the land, but BLM retains Section 2886.16 Under What
of this part.
administration of your grant or TUP; or Conditions May BLM Order an The immediate temporary suspension
(C) Reserve to the United States the Immediate Temporary Suspension of order is effective until you receive
land the grant or TUP encumbers, and My Activities? BLM’s written notice to proceed with
BLM retains administration of your We have restructured proposed your activities. Any stay of BLM’s order
grant or TUP. sections 2886.17 and 2886.18 to create is addressed by final section 2881.10.
This section also explains that BLM or final sections 2886.16, 2886.17, and This final section replaces proposed
the new land owner may negotiate new 2886.18. These sections contain the section 2886.18(a). We also added final
grant or TUP terms and conditions with provisions on suspension or termination paragraph (c) to this section. It discusses
you. of grants and TUPs. We reorganized how you may file a request to resume
This section was proposed as section them to be more clear and to be as and how BLM will respond. The
2886.16, which cross-referenced consistent as possible with the provisions of this paragraph are in
proposed section 2807.14 (now final comparable provisions of part 2800. previous sections 2883.5(e) and (f). We
section 2807.15). In the final rule we Final section 2886.16 explains that, inadvertently omitted them from the
took the revised language from final subject to section 2886.11, BLM can proposed rule.
section 2807.15 and put it in this order an immediate temporary Several commenters said that the
section, rather than cross-referencing it. suspension of grant or TUP activities regulations should give industry the
We removed the second sentence of the within the right-of-way or TUP area to opportunity to ‘‘correct the
proposed section, which stated the protect public health or safety or the endangerment’’ before suspending or
section also applied to TUPs, and environment. In contrast to section 506 terminating activities under the grant.
instead inserted references to TUPs at of FLPMA, 43 U.S.C. 1766, and final This section provides that BLM can
appropriate places in the text. We also section 2807.16(a) of this rule, BLM’s order an immediate temporary
added ‘‘BLM’’ and ‘‘for the lands BLM determination that you have violated suspension of activities within the right-
formerly administered’’ in several the terms and conditions of your grant of-way or TUP area when it believes it
places to make clear that this section is not a necessary preliminary finding is necessary ‘‘to protect public health or
applies only to lands under BLM’s (see 30 U.S.C. 185(o)). BLM can require safety or the environment.’’ Section
jurisdiction. Because 30 U.S.C. 185(c)(2) you to stop your activities before 185(o) of the MLA provides authority
provides that ‘‘Each agency head shall holding an administrative proceeding and direction for this section of the rule.
administer and enforce the provisions of on the matter and may order immediate It states:
this section, appropriate regulations, remedial action. We added ‘‘subject to If the Secretary or agency head determines
and the terms and conditions of rights- § 2886.11’’ to paragraph (a) of this that an immediate temporary suspension of
of-way or permits insofar as they section to make it clear that the head of activities within a right-of-way or permit area
involve Federal lands under the agency the agency having administrative is necessary to protect public health or safety
head’s jurisdiction,’’ BLM believes that jurisdiction over the Federal lands or the environment, he may abate such
it can address only lands under its involved will regulate your grant or TUP activities prior to an administrative
jurisdiction in this section. unless another agreement is reached. proceeding.
When BLM-administered land Therefore, the other Federal agency will This provision of the MLA establishes
encumbered by a grant or TUP is act under 30 U.S.C. 185(o) unless there the standard that BLM uses to determine
proposed for transfer out of Federal is agreement that BLM will administer whether to issue an immediate
ownership, BLM will consider the the grant. We made the same addition temporary suspension order, namely
comments and input of the grant or TUP to sections 2886.17 and 2886.19 of this that such an order is necessary ‘‘to
holder in determining which of the part. protect public health or safety or the
three options discussed above we will BLM may issue the immediate environment.’’ This provision is
take. Holder input is especially temporary suspension order orally or in consistent with the Administrative
important when only part of the BLM- writing to you, your contractor, or Procedure Act at 5 U.S.C. 558. In those
administered land in a grant or TUP is subcontractor, or to any representative, situations involving the suspension or
proposed for transfer, because BLM will agent, or employee representing you or termination of a grant or TUP, final
want to avoid unnecessary disruption of conducting the activity. BLM may take section 2886.18 states that BLM will
the holder’s operations, particularly this action whether or not any action is provide ‘‘a reasonable opportunity to
when a major pipeline is involved. If being or has been taken by other Federal correct the violation’’ before taking
significant disruption of the holder’s or state agencies. When you receive the further action.
operations would result from transfer of order, you must stop the activity Please see the discussion of final
a portion of the BLM lands out of immediately. BLM will, as soon as section 2807.16 for an explanation of
Federal ownership, reservation (non- practical, confirm an oral order by the other changes to this final section.

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Section 2886.17 Under What requires it to terminate, when BLM grounds for suspension or termination
Conditions May BLM Suspend or consents in writing to your request to exist. BLM will suspend or terminate
Terminate My Grant or TUP? terminate it, or when it is required by the grant if the ALJ determines that
This section explains that subject to law to terminate. We did this to grounds exist for this action and that the
section 2886.11, BLM may suspend or complete the section and to be suspension or termination is justified.
terminate your grant if you do not consistent with final section 2807.17. Consistent with 30 U.S.C. 185(o), no
comply with applicable laws and Please see the discussion of final section administrative proceeding is required
2807.17 for an additional discussion of where the grant provides that it
regulations or any terms, conditions, or
these provisions. terminates on the occurrence of a fixed
stipulations of the grant (such as rent
We also added final paragraph (d) to or agreed upon condition, event, or
payments), or if you abandon the right- explain that your failure to use your
of-way. Subject to section 2886.11, BLM time.
right-of-way for its authorized purpose When we determine that we will
may also suspend or terminate your for any continuous 2-year period creates
TUP if you do not comply with suspend or terminate your TUP, we will
a presumption of abandonment. This send you a written notice of our
applicable laws and regulations or any provision is in previous section 2883.6–
terms, conditions, or stipulations of the determination and provide you a
1(b) and section 185(o)(3) of the MLA. reasonable opportunity to correct the
TUP, or if you abandon the TUP area. We added it to be consistent with the
This section also explains that a grant violation or start or resume use of the
MLA and the previous rule. TUP area. The notice will also provide
or TUP also terminates when: Proposed section 2886.17(c) is now
(A) The grant or TUP contains a term you information on how to file a written
final section 2886.17(e). We reworded it request for reconsideration.
or condition that has been met that to be consistent with final section
requires the grant or TUP to terminate; You may file a written request with
2807.17(d). the BLM office that issued the notice,
(B) BLM consents in writing to your Several commenters suggested that
request to terminate the grant or TUP; or asking for reconsideration of the
the regulations define ‘‘abandonment.’’
(C) It is required by law to terminate. determination there. BLM must receive
The commenters said that facilities may
Your failure to use your right-of-way this request within 10 business days
be necessary for future enhanced oil
for its authorized purpose for any after you receive the notice.
recovery projects and that the grantee
continuous 2-year period creates a may have to wait until oil and gas prices BLM will provide you with a written
presumption of abandonment. BLM will go up. We did not add a definition of decision within 20 business days after
notify you in writing of this ‘‘abandonment’’ to the final rule. The receiving your request for
presumption. You may rebut the MLA does not define the term or reconsideration. The decision will
presumption of abandonment by describe specific circumstances that include a finding of fact made by the
proving that you used the right-of-way would constitute abandonment (other next higher level of authority in BLM
or that your failure to use the right-of- than stating at 30 U.S.C. 185(o)(3) that than the person who made the initial
way was due to circumstances beyond ‘‘Deliberate failure of the holder to use suspension or termination
your control, such as acts of God, war, the right-of-way for the purpose for determination. The decision will also
or casualties not attributable to you. which it was granted or renewed for any inform you of whether BLM has
You may appeal a decision under this continuous two-year period shall suspended or terminated your TUP or
section under section 2881.10 of this constitute a rebuttable presumption of cancelled the notice made under
part. abandonment of the right-of-way’’). We paragraph (b) of this section. If the
This final section replaces proposed believe that it is appropriate for BLM decision is adverse to you, you may
sections 2886.17(a) and (c). Proposed and grant and TUP holders to rely on appeal it under section 2881.10 of these
section 2886.17(a) erroneously mixed the normal meaning of the term and the regulations.
terminology pertaining to ‘‘grants’’ and statutory language in interpreting and This section was proposed as sections
‘‘temporary use permits’’ which made applying the rule. 2886.17(b) and (c). These proposed
the paragraph unclear and confusing. It paragraphs were not clear regarding
also inadvertently omitted several Section 2886.18 How Will I Know That which provisions applied to grants and
provisions of previous sections 2883.6– BLM Intends To Suspend or Terminate which applied to TUPs. Therefore, in
1 and 2883.6–2. We added several My Grant or TUP? this final section we reworded the text
provisions to the final rule to make it This section explains that when BLM and separated the provisions addressing
clearer and more consistent with the determines that it will suspend or grants (final section 2886.18(a)) from
previous regulations and also to comply terminate your grant, it will send you a those addressing TUPs (final section
with the requirements of section 185(o) written notice of this determination. 2886.18(b)).
of the MLA. The determination will provide you a In the final rule we moved proposed
We also redrafted final paragraphs (a) reasonable opportunity to correct the section 2886.18(b) to final sections
and (b) to separately address when BLM violation, start your use, or resume your 2886.18(a) and (a)(1), which are
may suspend or terminate a grant or a use of the right-of-way, as appropriate. discussed below. We also moved
TUP for non-compliance with In the notice BLM will state the date by proposed section 2886.17(b) to final
applicable laws and regulations or any which you must correct the violation or sections 2886.18(b), (b)(1), and (b)(2),
terms, conditions, or stipulations of the start or resume use of the right-of-way. which are discussed above. Proposed
authorization, or for abandonment. If you have not corrected the violation section 2886.17(c) is now final section
These final paragraphs more accurately or started or resumed use of the right- 2886.18(b)(3).
follow the previous rule and resolve the of-way by the date specified in the In addition to editorial changes, we
confusion created by proposed section notice, BLM will refer the matter to the made a number of changes and
2886.17(a). Office of Hearings and Appeals (OHA). additions to improve the clarity and
We added paragraph (c) to specify An administrative law judge (ALJ) in completeness of the process description
that your grant or TUP would also OHA will provide an appropriate and to make it more consistent with
terminate when it contains a term or administrative proceeding under 5 previous sections 2883.6–1(c), 2883.6–
condition that has been met that U.S.C. 554 and determine whether 2(b), and (c), and the MLA.

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In the first sentence of paragraph (a) TUPs. Please see the discussion of final changes, the remainder of this final rule
we added the phrase ‘‘under § 2886.17 section 2807.19 for an explanation of is as it was proposed.
of this subpart’’ to indicate for which the other changes to this section.
Section 2887.11 May I Assign My
suspensions and terminations BLM will
Subpart 2887—Amending, Assigning, or Grant or TUP?
send a written notice. We also added the
Renewing MLA Grants and TUPs This section explains that with BLM’s
phrase ‘‘and provide you a reasonable
opportunity to correct the violation, Subpart 2887 contains provisions on approval, you may assign, in whole or
start your use, or resume your use of the amending, assigning, and renewing in part, any right or interest in a grant
right-of-way, as appropriate’’ and the grants and TUPs. or TUP. In order to assign a grant or
sentence ‘‘In the notice BLM will state TUP, the proposed assignee must file an
the date by which you must correct the Section 2887.10 When Must I Amend application with BLM and satisfy the
violation or start or resume use of the My Application, Seek An Amendment of same procedures and standards as for a
right-of-way.’’ Section 28(o)(1) of the My Grant or TUP, or Obtain a New new grant or TUP, including paying
MLA, 30 U.S.C. 185(o)(1), states that Grant or TUP? processing fees.
‘‘Abandonment of a right-of-way or This section explains that you must The assignment application must also
noncompliance with any provision of amend your application or seek an include:
this section may be grounds for amendment of your grant or TUP when (A) Documentation that the assignor
suspension or termination of the right- there is a proposed substantial deviation agrees to the assignment; and
of-way if (A) after due notice to the in location or use. The requirements to (B) A signed statement that the
holder of the right-of-way, (B) a amend an application, grant, or TUP are proposed assignee agrees to comply
reasonable opportunity to comply with the same as those for a new application, with and to be bound by the terms and
this section, and * * *.’’ We added the including paying processing and conditions of the grant or TUP that is
phrase and sentence to make the monitoring fees and rent according to being assigned, and all applicable laws
regulation consistent with the MLA and sections 2884.12, 2885.23, and 2885.19 and regulations.
in response to comments (see discussion of this part. BLM will not recognize an assignment
under section 2886.16 above). until we approve it in writing. BLM will
This section also explains that any
We added the phrase ‘‘If you have not approve the assignment if doing so is in
activity not authorized by your grant or
corrected the violation or started or the public interest. BLM may modify the
TUP may subject you to prosecution
resumed use of the right-of-way by the grant or TUP or add bonding and other
under applicable law and to trespass
date specified in the notice’’ to the first requirements, including terms and
charges under subpart 2888 of this part.
sentence of final section 2886.18(a)(1) to conditions, to the grant or TUP when
Under this section if you hold a
make clear when BLM will refer the approving the assignment. If BLM
pipeline grant issued before November
matter to OHA. We also added a new approves the assignment, the benefits
16, 1973 (prior to the MLA amendment),
sentence to the end of this paragraph and liabilities of the grant or TUP apply
and there is a proposed substantial
stating that ‘‘No administrative to the new grant or TUP holder.
deviation in location or use of the right- The processing time and conditions
proceeding is required where the grant
of-way, you must apply for a new right- for original applications, as described at
by its terms provides that it terminates
of-way grant. section 2884.21 of this part, apply to
on the occurrence of a fixed or agreed
BLM may ratify or confirm a grant processing assignment applications.
upon condition, event, or time.’’ This is
provided for at 30 U.S.C. 185(o)(1) and that was issued before November 16, The previous rule provided for the
we added the new sentence to be 1973, if we can modify the grant to assignment of TUPs (see previous
consistent with the Act. comply with the MLA and these 2881.1–2(e)). We inadvertently omitted
In paragraph (b), we added the phrase regulations. BLM and you must jointly reference to assigning TUPs in the
‘‘and provide you a reasonable agree to any modification of a grant proposed rule. Therefore, we added
opportunity to correct the violation or made under this paragraph. This references to TUPs in the final rule.
start or resume use of the TUP area’’ and provision is consistent with 30 U.S.C. We modified proposed paragraph
the sentence ‘‘The notice will also 185(t). (c)(2) by replacing the phrase ‘‘A
provide you information on how to file This final rule is different from the stipulation that * * *’’ with ‘‘A signed
a written request for reconsideration.’’ proposal. In the proposed rule, statement that * * *.’’ We made this
We added the phrase to be consistent paragraph (a) contained a cross- change so as not to confuse the signed
with the MLA (see discussion regarding reference to proposed section 2807.19. statement with stipulations that we may
paragraph (a) above) and in response to This final rule replaces that cross- attach to an approved grant or TUP.
comments (see discussion under section reference with final paragraphs (a) and We also changed proposed paragraph
2886.16 above). The sentence reflects (b) and contains references to TUPs. (d) to add provisions that ‘‘BLM will
longstanding BLM policy and practice Proposed section 2807.19 (final section approve the assignment if doing so is in
and we added it to provide a more 2807.20) does not address TUPs. The the public interest’’ and ‘‘If BLM
complete and accurate description of MLA does provide for TUPs, however, approves the assignment, the benefits
the process. so we added references to them to this and liabilities of the grant or TUP apply
section. Since this section is based on to the new grant or TUP holder.’’ We
Section 2886.19 When My Grant or final section 2807.20, please see the added this first sentence to explain that
TUP Terminates, What Happens to Any discussion of that section for other BLM may deny an assignment
Facilities on It? changes to the final rule. application if it determines that
In the proposed rule, this section The last sentence of proposed approval of the assignment would not
cross-referenced proposed section paragraph (a) is now final paragraph (c). be in the public interest. Previous
2807.18. In the final rule we took the Proposed paragraphs (b) and (c) are now section 2882.3(e) provides that ‘‘An
revised language from that section (final final paragraphs (d) and (e). We also application for a right-of-way grant or
section 2807.19) and put it in this changed the title of the section to more temporary use permit * * * may be
section, rather than cross-referencing it. accurately reflect its contents. With the denied if the authorized officer
We also made this section applicable to exception of other minor editorial determines that the right-of-way or use

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applied for would be inconsistent with We also revised the title of the section Final section 2884.12(f) provides for
the purpose to which the Federal lands from ‘‘May I renew my grant?’’ to ‘‘How payments for applications related to
involved have been committed, or do I renew my grant?’’ to more TAPS to be made within 60 days after
would otherwise not be in the public accurately describe its content. the close of each quarter. We believe
interest.’’ Previous section 2881.1–1(g) Except for the changes discussed that the cross-reference to section
makes an assignee bound by the terms above and minor editorial changes, the 2884.12 of this part is sufficient to make
and conditions of the grant and the final section remains as proposed. clear that the payment provisions of
assignee must meet all of the Several commenters said that the section 2884.12(f) apply to renewal
requirements of the original grantee. renewal of an existing right-of-way applications.
Therefore, the public interest should be a simple request in writing. A few commenters asked what would
requirement in this section is consistent Please see the discussion of final section happen if the grant holder did not
with previous regulations. We added the 2807.22 for the response to this request a renewal in time for the agency
second sentence to make clear that any comment. to fully process the application prior to
modifications to the grant or TUP A few commenters asked if BLM can the expiration date of the current
during the assignment process (e.g., deny a grant renewal request if the authorization. The final rule states that
modified or additional terms and current and continued use, operation, you must apply to BLM to renew a grant
conditions) apply to the assignee, a fact and maintenance of an existing facility at least 120 calendar days before the
implicit in section 2887.11(c)(2). is causing environmental effects that are grant expires. BLM will not accept a
In final paragraph (e) we replaced the inconsistent with a current land use and renewal application if we receive it less
cross-reference to section 2804.19(c) resource management plan. A few than120 calendar days before the grant
with a cross reference to section commenters also asked if modifications expires. In these circumstances, the
2884.21, because we incorporated the of the terms and conditions of a grant,
grant holder should instead file an
customer service standard referenced at the time of renewal, could include
application for a new authorization
into the final part 2880 rule, rather than provisions requiring the relocation of
under subpart 2884. If BLM is able to
by cross-reference to part 2800, as we segments of the facility, if necessary, to
complete processing such an
proposed. Except for the changes comply with then-existing laws,
application for a new authorization
discussed above and minor editorial regulations, and resource management
before the original grant expires, BLM
changes, the final section remains as plans. Final section 2887.12(a) states
may, at its discretion, renew the original
proposed. that ‘‘BLM will renew the grant if the
grant.
We received many comments on pipeline is being operated and
various aspects of assignments that maintained in accordance with the Subpart 2888—Trespass
could apply to the 2800 regulations and grant, these regulations, and the Act.’’
This subpart contains provisions
these regulations. Please see the Final section 2885.11(b) states that
pertaining to trespass on Federal lands
discussion of final section 2807.21 for ‘‘During construction, operation,
and:
descriptions of the comments on maintenance and termination of the
project you must: (1) To the extent (A) Defines trespass;
assignments and responses to them. (B) Cross-references trespass
practicable, comply with all existing
Section 2887.12 How Do I Renew My and subsequently enacted, issued, or provisions in the part 2800 regulations
Grant? amended Federal laws and regulations that are applicable to the part 2880
This section explains that you must * * * applicable to the authorized use.’’ regulations; and
apply to BLM to renew your grant at We may modify the terms and (C) Explains that other Federal
least 120 calendar days before your conditions of the grant at the time of agencies address trespass on non-BLM
grant expires. BLM will renew your renewal to require the grant holder to lands under their respective laws and
grant if you are operating the pipeline bring its operations and facilities into regulations.
and maintaining it in accordance with compliance with the laws and Section 2888.10 What Is Trespass?
the grant, these regulations, and the Act. regulations mentioned in section
If your grant has expired or terminated, 2885.11(b). The modification could This section explains that:
you must apply for a new grant under include provisions requiring the (A) Trespass is using, occupying, or
subpart 2884 of this part. relocation of segments of the facility, if developing the public lands or their
BLM may modify the terms and necessary, to comply with then existing resources without a required
conditions of the grant at the time of laws and regulations. If the holder does authorization or in a way that is beyond
renewal, and you must pay the not accept such modified terms and the scope and terms and conditions of
processing fees in advance. conditions, BLM may deny the renewal your authorization. Trespass is a
The time and conditions for application. Inconsistencies with prohibited act;
processing applications for rights-of- current resource management plans are (B) Trespass includes acts or
way, as described at section 2884.21 of addressed at 43 CFR 1610.5–3. omissions causing unnecessary or
this part, apply to applications for One commenter stated that under undue degradation to the public lands
renewals. existing regulations TAPS receives or their resources. In determining
Under final paragraph (a) you must unique treatment since it is permitted to whether such degradation is occurring,
submit to BLM an application for make its cost recovery payments 60 days BLM may consider the effects of the
renewal at least 120 calendar days prior after the close of each quarter, rather activity on resources and land uses
to grant termination. We added this time than in advance. The commenter said outside the area of the activity;
requirement to the final rule because we that to avoid confusion, the final (C) BLM will administer trespass
require at least 120 calendar days to regulations should make it explicit that actions for grants and TUPs as set forth
process an application for renewal and the quarterly reimbursement schedule in sections 2808.10(c) and 2808.11 of
approve it before the grant expires. The applies to renewal costs as well. The this chapter; and
same 120-day standard was proposed in final rule states at paragraph (b) ‘‘* * * (D) Other Federal agencies address
section 2807.22(b) and is in final section you must pay the processing fees (see trespass on non-BLM lands under their
2807.22(a) and (b). § 2884.12 of this part) in advance.’’ respective laws and regulations.

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This proposed section included only increase processing and monitoring multiplied by the final rule’s fees for
cross-references to proposed subpart revenues to BLM and conversely, costs MLA Processing Category 4 ($923) plus
2808 and part 2800 of the rule. In the to applicants and grant holders, by an the final rule’s fees for MLA Monitoring
final rule, we replace those general estimated maximum of $9.0 million Category 4 ($923):
cross-references with an explanation of each year. This number represents the ($923 + $923) × (2,624) = $4,843,904
what trespass is, some additional largest impact possible under the The maximum total annual collection
information about trespass on BLM and revised rules. To arrive at the $9.0 of FLPMA right-of-way cost recovery
other agency lands, and more specific million, we assume that all right-of-way processing and monitoring fees for new
cross-references to the final trespass actions would be assessed the maximum or amended grants and assignments and
rules in part 2800. We also added fixed processing fee and the maximum renewals ($5,270,330) plus the
language to this section explaining that fixed monitoring fee. The following maximum total annual collection of
the rent exemption provisions of the shows the maximum possible annual MLA right-of-way cost recovery
part 2800 regulations do not apply to economic effect of increasing the right- processing and monitoring fees for new
grants issued under this part. This of-way cost recovery processing and or amended grants and assignments and
section does not impose additional monitoring fees. renewals ($4,843,904) equals the
requirements to the rule as it was
Assumptions maximum total annual collection of
proposed, but is more specific and
right-of-way cost recovery processing
informative. (1) The average number of FLPMA and monitoring fees ($10,114,234).
Section 2888.11 May I Receive a Grant and MLA right-of-way applications $5,270,330 + $4,843,904 =
If I Am or Have Been in Trespass? processed over a four year period in FY $10,114,234 (Maximum total annual
2001–2004 for amended, assigned, new, collection of FLPMA and MLA right-of-
This section is new to this part of the and renewed grants represents the
final rule. It was proposed as section way cost recovery processing and
demand for right-of-way services for a monitoring fees).
2808.12 and made applicable in the typical year and is appropriate for use
proposed rule to this part via a cross- Average FY 2001–2004 FLPMA and
in this calculation. MLA processing and monitoring fees
reference. (2) The number of all types of right-
This section explains that until you collected = $1,086,556.
of-way applications that BLM processed $10,114,234 (Maximum total annual
satisfy liability for a trespass, BLM will can be accurately derived from BLM’s
not process any applications you have collection of FLPMA and MLA
automated lands records data bases (LR processing and monitoring fees) minus
pending for any activity on BLM- 2000).
administered lands. A history of (¥) $1,086,556 (Average of 2001–2004
(3) The number of applications that FLPMA and MLA processing and
trespass will not necessarily disqualify BLM rejects each year is less than 1
you from receiving a grant. In order to monitoring fees collected) = $9,027,678)
percent and will not affect these (or, rounded down to $9.0 million)
correct a trespass, you must apply under
calculations significantly. (maximum annual impact of fee
the procedures described at subpart
(4) The regulations will not affect the increases).
2884. BLM will process your
processing and monitoring costs The final processing fees are generally
application as if it were a new use. Prior
associated with the full reasonable the fees in the 1999 proposed rule
unauthorized use does not create a
(FLPMA) and full actual (MLA) cost adjusted for increases in the IPD-GDP
preference for receiving a grant.
Please see the preamble to section categories because applicants currently between the date of the proposed rule
2808.12 for a discussion of the changes pay these amounts under existing rules. and now. However, in the final rule we
to this section and for responses to (5) To determine whether the rule has made four important additional
public comment. an economic effect of $100 million or adjustments in the fee schedule which
This final rule also corrects cross- more annually, it is appropriate to use affect the final amounts and number of
references to this rule in existing the ‘‘worst case’’ scenario, that is, using categories for both the processing and
regulations in sections 2812.1–3, 2920.6, the most expensive fixed fee application monitoring schedules.
9239.7–1, and 9262.1. processing and monitoring categories to The first adjustment is that in the
make the calculations (Processing final rule we define each processing and
III. Procedural Matters Category 4 and Monitoring Category 4). monitoring category by only the
Executive Order 12866, Regulatory (6) The rate of inflation in the estimated number of Federal work hours
Planning and Review economic indicator used will not necessary to process or monitor the
significantly increase over the next 5 application/grant rather than a
In accordance with the criteria in
years. It is not likely that there will be combination of criteria (number of
Executive Order 12866, this rule is not
a period of deflation. hours, availability of data, number of
a significant regulatory action. The
Office of Management and Budget will Calculations field examinations, and need for land
make the final determination as to its use plan amendment) which in the
The average number of FLPMA right- proposed rule were used to define all
significance under Executive Order of-way applications for new or amended
12866. the categories (except the Master
grants and assignments and renewals Agreement category). In doing so, it was
a. This rule will not have an annual
processed in FY 2001–2004 (2,855) necessary to determine a ‘‘mean’’ or
economic effect of $100 million or more
multiplied by (the final rule’s fees for average hour for each category, and then
or adversely affect in a material way an
FLPMA Processing Category 4 ($923) apply the appropriate hourly rate to the
economic sector, productivity, jobs,
plus the final rule’s fees for FLPMA mean hour in each FLPMA or MLA
competition, the environment, public
Monitoring Category 4 ($923)): category. This ensures that each
health or safety, other units of
government, or communities. A cost- ($923 + $923 ) × (2,855) = $5,270,330 category is cost-weighted the same.
benefit and economic analysis has not The average number of MLA right-of- The second adjustment establishes a
been prepared. way applications for new or amended new category (Category 1) for any right-
Processing and monitoring fee grants and assignments and renewals of-way action that is estimated to take
increases. The rule could potentially processed in FY 2001–2004 (2,624) more than 1 hour, but eight hours or

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less, to process or monitor. Under the 6 are more likely to reflect differences To verify the appropriateness of the
final rule no fee is assessed for any in FLPMA and MLA fees. above fees, we offer the following brief
action that takes 1 hour or less to The fourth adjustment applies the analysis:
process. We then adjusted new Category mean per hour rate of $21.46 to the The $21.46 mean per hour rate for
2 to include actions that are estimated mean hour of each category. The basis processing and monitoring fees would
to take a maximum of 24 hours but for this $21.46 rate is data assembled for approximately equal the hourly wage in 2005
greater than eight hours. New Categories category 4 projects (category III in the for an employee at the GS 9, Step 3 level.
3 (> 24 hours ≤ 36 hours) and 4 (> 36 proposed rule). Category 4 projects are These rates compare favorably with the
hours ≤ 50 hours) are the same as those requiring more than 36 hours to
1987 processing fees which, if adjusted to a
proposed Categories II and III. mean per hour rate, would average $11 per
process (and less than or equal to 50 mean hour or an hourly wage earned by an
The third adjustment recognizes that hours). The mean hour for category 4 is employee in 1987 (when the existing rule
for categories 1 through 4, processing 43 (which is equal to (50 ¥ 36)/2 + 36). was published) at the GS 9, Step 2 level
and monitoring fees under FLPMA are Multiplying $21.46 by 43 gives the fee (according to the 1987 General Schedule).
identical to the analogous category for category 4 ($923). Multiplying Most right-of-way actions are processed
under the MLA. For example, a category $21.46 by the mean hour for categories and monitored by employees who are at the
2 processing fee under FLPMA is 1 through 3 likewise gives the fee for GS 9 to GS 11 levels and who will earn
identical to a category 2 processing fee these categories. between $20.02 (GS 9/1) and $31.48 (GS 11/
under the MLA. A category 3 10) per hour in 2005.
As stated earlier, BLM conducted
monitoring fee under FLPMA is Under the final rule, FLPMA and
field studies in 1982 and 1983 which
identical to a category 3 monitoring fee MLA fees are identical for fixed fee
measured the costs of processing right-
under the MLA. categories. Because of the change in
of-way applications and monitoring
The preamble discussion of section category definitions, we expect that 70
grants (see also 64 FR 32107 (June 15,
2804.14 explains in detail how the six percent of the new FLPMA applications
1999)). Between November 12, 1982,
‘‘reasonableness’’ factors at section will be assessed either a Category 3
and July 25, 1986, BLM field offices
304(b) of FLPMA apply to right-of-way ($644) or Category 4 ($923) processing
kept and reported actual time and cost
projects under FLPMA. As explained fee. Under the 1987 FLPMA processing
on some 500 right-of-way projects in
there, factors such as public benefit and fee schedule, 60 percent of the new
non-major categories (see 51 FR 26840
public service could potentially cause applications were assessed a Category II
(July 25, 1986)). In 1986, the agency
BLM to charge processing or monitoring ($300) fee. For MLA applications, we
conducted an extensive field study of
fees for a FLPMA right-of-way at less expect that 55 percent of the new
processing and monitoring costs, which
than actual costs. We note, however, applications will be assessed either a
generally verified the processing costs
that we found in 1986 that for non- Category 3 ($644) or Category 4 ($923)
developed from the earlier studies (see
major projects, there is little opportunity processing fee. Under the 1987 MLA fee
64 FR 32108).
for public benefits or public services schedule, 63 percent of the applications
because of the local nature of such When we set the MLA processing fees were assessed a Category II ($275 ) fee.
projects (see the preamble to the in 1985 (see 50 FR 1308, Jan. 10, 1985), As a result, BLM expects to collect a
proposed rule at 51 FR 26840, July 25, we set fixed MLA processing and minimum of $344 ($644 ¥ $300 = $344)
1986). We note further that in practice monitoring fees at our estimated actual in increased processing fees per
any small benefit or service to the cost, as required by section 28 of the application for the majority of
public provided by the processing of a MLA. The preamble to the rule processing actions under the new cost
fixed fee application or monitoring a proposing MLA cost recovery fees in recovery fee schedules. To put these
fixed fee project was outweighed by the 1983 makes plain that the fees were figures in perspective, the 1995 IG audit
monetary value to the applicant of the developed by a BLM task force found for 1993 that BLM was collecting,
right or privilege sought by the consisting of employees with expertise on average, $280 to process a typical
applicant. in the processing and monitoring of right-of-way application, while its costs
Again in 1999, we noted: ‘‘Actual right-of-way cases, budgeting, and cost were $493 (or a deficit of $213 per
costs, less management overhead, forms accounting. The task force analyzed data application for processing fees). When
the amount to which BLM applies the from a representative sample of actual adjusted for inflation (the change in
reasonability factors listed in section right-of-way cases and examined several IPD-GDP from 1993 to 2005 is 25
304(b) of FLPMA. For all but complex demographic variables which might percent), the BLM must collect, on
projects * * * the reasonability factors influence cost, including location and average, approximately $616 per
have little or no effect on actual costs’’ area of the right-of-way or temporary application (an additional $336 above
(see 64 FR 32110 (June 15, 1999)). use area. Fees were based on the the current fee average identified by the
Our decision to equate FLPMA and estimated work effort required to IG) to process a typical right-of-way
MLA fees for categories 1 through 4 was accomplish the processing actions, application. We believe that the
aided by a 1996 Solicitor’s Opinion on including personnel costs, fringe adjustments made in the FLPMA and
cost recovery (M–36987), entitled benefits, vehicle usage, and indirect MLA processing fee schedules, as
‘‘BLM’s Authority to Recover Costs of costs (see 48 FR 48478, 48479 (Oct. 19, described above, will allow BLM to
Minerals Document Processing.’’ That 1983) and 64 FR 32108 (June 15, 1999)). recover the appropriate costs associated
opinion clarified that ‘‘[a] factor such as In 1995, BLM program experts with processing all right-of-way
‘the monetary value of the rights or analyzed a cross section of our right-of- applications in 2005 and beyond.
privileges sought by the applicant’ way cases. This analysis showed that Under the 1987 rules BLM
could, when that value is greater than the cost of processing right-of-way determined the monitoring category
BLM’s processing costs, be weighed as cases, including labor costs, had based on the processing cost categories.
an enhancing factor, offsetting a increased since 1986 at approximately For example, a Category I application
diminution due to another factor such the same rate as the Implicit Price for processing fees would automatically
as ‘the public service provided’ ’’ (see Deflator—Gross Domestic Product (see be considered a Category I application
M–36987 at 36). Major categories 5 and 64 FR 32109 (June 15, 1999)). for monitoring fees. This technique for

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charging monitoring fees has proven community where the facility is located, Of the 48,190 grants paying rent, 10,760 are
inadequate. BLM collected nearly $1.2 or both. The communication site rent grants for electric transmission, telephone, or
million in minor category processing schedule became effective in late 1995. fiber optic facilities which are not financed
and monitoring fees in FY 2004. This final rule contains revisions that by REA loans, but which might be eligible for
financing.
However, less than $222,000 of the total address the most frequently asked Currently, 7,278 electric and telephone
fees (or an average $65 per grant) were questions about applying the rent facilities are not being assessed rent.
for monitoring purposes. In most cases, schedule to various situations and If all grants for electric and telephone
the same employees which process the clarifies certain policies that were facilities that now pay rent (10,760), become
application, also monitor grant ambiguous. This final rule does not rent exempt, the loss of rental revenue would
activities, so the hourly cost is the same. change the rent amounts except by the be approximately $2,679,240 ($249 (average
The primary variable between amount of the yearly change in the CPI- annual rent per grant) X 10,760 (number of
processing activities and monitoring U, which is consistent with existing existing electric and telephone facilities now
activities, which could vary widely, is rules and policy. paying rent)).
the number of hours required to REA-financed v. Eligible for REA In summary, $2.7 million of annual
accomplish each activity. For this financing. As mentioned earlier, the rental receipts could be lost if all
reason, in the final rule, BLM will have Omnibus Parks and Public Lands currently authorized telephone and
the ability to determine monitoring Management Act of 1996 amended electric lines now paying rent were to
categories separately from processing section 504(g) of FLPMA. The effect of become rent exempt. In a ‘‘worst case’’
categories, and as a result, should have the amendment is to increase the scenario, where all current rental
adequate resources to properly conduct number of rights-of-way that may receipts of $12.0 million were to be lost,
these activities. The economic impact of qualify for an exemption from paying this rule will not have an annual
this change will be minimal since rent. Prior to 1996, Section 504(g) economic effect of $100 million and the
increases in one fee category will tend specified that the holder of a right-of- economic impact would not be
to cancel out decreases in another. That way pay the fair market value for the significant, even when combined with
is because we believe that it is just as use authorized by the grant, but the other changes the rule makes.
likely that an application will fall into specifically exempted from rent rights- b. This rule will not create serious
a higher category under the new rule as of-way for electric or telephone facilities inconsistencies or otherwise interfere
it is that they will fall into a lower ‘‘financed’’ under the Rural with other agencies’ actions. BLM has
category. Electrification Act of 1936, as amended worked closely with the Forest Service
However, we estimate the total (REA). The 1996 amendment replaced
in assuring the maximum consistency
maximum economic impact from the the phrase ‘‘financed pursuant to the
possible between the policies of the two
new monitoring fees will be $4.8 Rural Electrification Act of 1936, as
agencies with respect to managing
million. This figure is calculated by amended,’’ with ‘‘eligible for financing
communication site rights-of-way. BLM
multiplying the average number of pursuant to the Rural Electrification Act
and the Forest Service have several
FLPMA (2,855) and MLA (2,624) right- of 1936, as amended, determined
working groups examining various
of-way actions for FY 2001, FY 2002, FY without regard to any application
aspects of their right-of-way programs,
2003 and FY 2004 (5,479 total requirement under that Act.’’ This
including ensuring consistency of
applications) by the maximum change allows rights-of-way for electric
regulations and policies to the extent
monitoring fee in the final rule ($923) or telephone facilities that are ‘‘eligible
for financing’’ under the REA to receive possible. In fact, the Forest Service
(5,479 multiplied by $923), or plans to publish cost recovery
$5,057,117, less $221,910 (the total an exemption from rent payments. The
final rule is consistent with the statute. regulations similar to BLM’s.
monitoring fees collected in FY 2004 for c. This rule will not materially alter
the fixed fee categories) or $4.8 million The REA exemption is only for
electric or telephone facilities that the budgetary impact of entitlements,
(5,057,117 minus $221,910 = $4,835,207 grants, user fees, loan programs, or the
provide service to rural areas. BLM
or $4.8 million). rights and obligations of their recipients.
Clarifications to communication site exempts rent for electric or telephone
facilities when the Rural Utility Service This rule does increase processing and
right-of-way policies. The revisions to monitoring fees, but only in amounts
the communication site right-of-way (at the request of the applicant/holder)
provides the necessary documentation necessary to ensure that the Federal
policies will have no direct economic government receives fees to pay for the
effects. They clarify how BLM assesses that the facility is being financed with
loans pursuant to the REA, or is eligible reasonable or actual costs of processing
rents for communication site rights-of- applications and monitoring grants
way, based on regulatory changes made for financing under that statute. Loans
are only provided for electric and consistent with FLPMA and the MLA.
in November 1995. Communication site The increases in processing and
rights-of-way fall within one of three telephone facilities that serve rural
areas, as those terms are defined by monitoring fees will not be retroactive,
major categories of communication uses but they will apply to existing grant
on public lands: REA.
Since the expanded REA exemption is holders who apply for new
(1) Broadcast, including television, FM new to BLM regulations and since the authorizations under the regulations.
radio, rebroadcast devices, and cable request for rent exemption must be Under the final rule, Federal agencies
television; and their instrumentalities are no longer
(2) Non-broadcast, including commercial
initiated by the grant holder, it is
mobile radio service, cellular telephone impossible to predict with any certainty automatically exempt from paying
service, private mobile communications, the actual economic impact of this rule processing and monitoring costs.
common carrier and microwave change. However, the potential loss of However, these agencies may still
communications; and rental receipts due to the REA benefit from the ‘‘reasonableness
(3) Other, including small, unobtrusive, exemption can be estimated as follows: factors’’ listed in section 304(b) of
low-power uses serving small numbers of FLPMA. Hardship is one such factor.
customers. The average annual rent received in 2004
per right-of-way grant was $249 ($12,005,260 Removing the automatic exemption
Rents correlate to the population of (total rental income) divided by 48,190 (total would not affect any agency’s ability or
the community served or to the number of grants paying rent) = $249). eligibility to benefit from these factors.

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d. This rule will not raise novel legal monitoring fees for MLA applications. eligible for Small Business
or policy issues. Section 304 of FLPMA Processing and monitoring fees for fixed Administration (SBA) programs and
allows the Secretary of the Interior to fee categories are one-time fees and likely to hold right-of-way grants. Based
‘‘establish reasonable filing and service when compared to the average cost of on these comparisons across industry
fees and reasonable charges, and constructing, operating, and codes, we estimate that about 5.3% of
commissions with respect to maintaining a right-of-way, are not existing MLA grantees may be eligible
applications and other documents significant. for SBA programs and about 22.9% of
relating to the public lands * * *’’ and BLM does not officially track right-of- FLPMA grantees may be eligible for
to ‘‘require a deposit of any payments way costs, but grant holders have SBA programs. Whether they choose to
intended to reimburse the United States estimated that pipeline facilities cost join the SBA programs is strictly an
for reasonable costs with respect to between $300,000 (12″ pipeline) to $1.5 individual firm’s decision as is whether
applications and other documents million per mile (36″ pipeline); rocked or not a small business applies for a
relating to such lands.’’ The reasonable logging roads cost between $40,000/mile right-of-way grant under these
costs include the costs of special for a ridge top road to $150,000/mile for regulations.
studies, environmental analyses, and a full bench road or an average of The proportion of grantees eligible for
the monitoring of construction, $70,000 /mile for a road through SBA programs shows that there is an
operation, maintenance, and moderate terrain; electric distribution opportunity for small businesses in
termination of any authorized facility and transmission lines cost between BLM’s right-of-way program. However,
* * *’’ Section 28(l) of the Mineral $24,000/mile (24kV distribution line) to the burden of increased cost recovery
Leasing Act of 1920, as amended, $1 million/mile (500kV transmission fees will not have a significant
requires applicants for oil and gas line); wind turbines average $1 million economic impact on a substantial
pipeline rights-of-way to reimburse the per installed megawatt; and cellular number of small entities or fall
United States for the administrative and communication facilities can vary disproportionately on small businesses.
other costs, i.e., actual costs, for between $250,000 and $500,000. (These Moreover, any entity which believes
processing the application and for estimated costs come from informal that it might be adversely affected by the
monitoring activities under their grants. contacts BLM made with several current fee schedule may qualify for hardship
BLM currently collects these fees. grant holders in December 2003.) When consideration. A review of the right-of-
Other regulatory revisions clarify compared to the cost of constructing a way data base indicates that of the
existing right-of-way regulations in right-of-way, the fee increases this final approximately 13,586 applications for
determining rents for communication rule makes are relatively small. grants, amended grants, assignments,
site rights-of-way and implement a Applicants of most large utility and renewals in FY 2004, BLM
statutory change relating to rent projects will pay either reasonable or exempted 271 applicants from
exemptions for facilities that are eligible actual processing and monitoring costs processing and monitoring fees and
for REA financing. These regulations under the final rule, as they currently granted reductions or waivers from
also add a provision requiring that grant do, and would not be significantly processing and monitoring costs to 39
holders who use hazardous materials in impacted by the final rule. Many other applicants for various reasons,
the operation of their grant provide facilities such as oil and gas gathering including undue financial hardship (see
bonding to cover liability for damages or pipelines, domestic water pipelines, existing 43 CFR 2808.5 and final section
injuries resulting from releases or buried telephone lines, and all-weather 2804.21).
discharges of hazardous materials. BLM roads can be installed for less than
$25,000 per mile. BLM can process most Small Business Regulatory Enforcement
has always had the authority to require
of these types of applications, Fairness Act
this type of bonding and adding this
provision makes explicit what has depending upon the length and total This rule is not a major rule under 5
always been implicit in our regulations. surface disturbance, in less than 36 U.S.C. 804(2), the Small Business
hours. This correlates to a fee of $644 Regulatory Enforcement Fairness Act.
Regulatory Flexibility Act under the final rule for both FLPMA and This rule:
This rule will not have a significant MLA applications. Under the current fee a. Does not have an annual effect on
economic effect on a substantial number schedules, an applicant might only pay the economy of $100 million or more.
of small entities as defined under the $300 (FLPMA) or $275 (MLA) for the See the Executive Order 12866
Regulatory Flexibility Act (5 U.S.C. 601 same application, primarily due to the discussion above.
et seq.). A Regulatory Flexibility category definitions of the new fee b. Will not cause a major increase in
Analysis is not required. Accordingly, a schedules compared to the current fee costs or prices for consumers,
Small Entity Compliance Guide is not schedules. individual industries, Federal, state, or
required. The BLM has estimated that Small entities are more likely to apply local government agencies, or
approximately 18 percent of all for rights-of-way having the lowest fixed geographic regions. As discussed above,
applicants and grantees (approximately fees (Categories 1 through 3) than they when compared to the cost of
5 percent of MLA applicants and are for Categories 4 through 6, which constructing a right-of-way, the fee
grantees and approximately 23 percent have the highest fees. The fee increases increases this final rule makes are
of FLPMA applicants and grantees) may in Categories 1 through 3, as well as the relatively small and therefore should
qualify as small entities. Of these differences between fee categories, are not cause any major increase in costs or
applicants and grantees which may both relatively small. When compared prices. In addition, any applicant that
qualify as small entities, we estimate to the overall cost of constructing rights- believes that the fee increases will cause
that less than 5 percent will be of-ways under this final rule, the them difficulty may benefit from the
adversely affected by the rule. Although increases in the fees will not criteria set forth at section 304(b) of
the processing and monitoring fee significantly impact even small entities. FLPMA, especially the hardship criteria.
changes vary widely in percentage Based on a comparison with the size The rule will affect Federal agencies by
terms, in absolute dollar amounts, they characteristics for each industry code eliminating the automatic exemption
range from a minus $77 to a plus $723, from the Census of Business in 1997, we from cost recovery for Federal agencies.
with the largest increases occurring in estimated the number of firms which are Federal agencies, however, are able to

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benefit from the section 304(b) criteria fees (processing and monitoring fees) and burden reduction. Drafting the
as well. Currently, many Federal are estimated to be approximately $9.0 regulations in plain language and
agencies fund BLM’s processing of their million per year. working closely with legal counsel
applications for rights-of-way across assists in all of these areas.
Executive Order 12630, Governmental
Federal lands. The amount they pay
Actions and Interference With Paperwork Reduction Act
results from lengthy negotiations, a
Constitutionally Protected Property
process which does not always produce This regulation requires an
Rights (Takings)
consistency across BLM organizational information collection under the
units. The final rule will help achieve In accordance with Executive Order Paperwork Reduction Act. The current
consistency by assigning each Federal 12630, the rule does not have significant rule is covered by OMB Approval
project to a cost recovery category. The takings implications. A takings Number 1004–0189, which expires on
category designation will enable other implication assessment is not required. October 31, 2005.
Federal agencies to determine their A right-of-way application is not private
costs in advance and will also reduce property. BLM has discretion under the National Environmental Policy Act and
the administrative paperwork involved governing statutes to issue a grant or not Endangered Species Act
in Federal transactions. The fee (see 30 U.S.C. 185(a) and 43 U.S.C. We have analyzed this rule in
increases this rule makes are small 1761(a)). Once a grant is issued, a accordance with the criteria of the
when compared to costs of right-of-way holder’s continued use of the land National Environmental Policy Act and
operations on Federal lands (see the covered by the grant is conditioned 516 DM. This rule does not constitute a
discussion above). Therefore, the fee upon compliance with various statutes,
major Federal action significantly
increases should not cause a major regulations, and terms and conditions.
affecting the quality of the human
increase in costs or prices for Consistent with FLPMA and the MLA,
environment. The BLM prepared an
consumers, individual industries, violation of the relevant statutes,
environmental assessment and
Federal, state, or local government regulations, or terms and conditions of
determined that the rule will not have
agencies, or geographic regions. the grant can result in termination of the
a significant effect on the quality of the
c. Does not have significant adverse grant before the end of the grant’s term.
human environment because:
effects on competition, employment, The holder of a grant acknowledges this
investment, productivity, innovation, or possibility in accepting a grant. (a) The direct economic impacts resulting
the ability of U.S.-based enterprises to Increased cost recovery fees (processing from increasing processing and monitoring
and monitoring fees) for right-of-way fees are not significant and would not be
compete with foreign-based enterprises.
substantial enough to cause applicants or
The rule should result in no change in grants authorizing use of Federal lands grant holders to withdraw their applications
any of the above factors. See the do not have takings implications. or forfeit their grants; and
discussions above for a discussion of the (b) The procedural and clarifying changes
Executive Order 13132, Federalism
economic effects of the fee increases. In would have no meaningful impact of any
general, the fee increases are small in In accordance with Executive Order kind on the physical or economic
comparison with the overall costs of 13132, the rule does not have environment.
constructing, maintaining, operating, Federalism implications to warrant the
preparation of a Federalism assessment. Any environmental effects of issuing
and terminating large projects located
A Federalism assessment is not required right-of-way grants on public and
within right-of-way grants. With the
because the rule does not have a Federal lands are analyzed on a case-by-
possible exception of MLA grants for
substantial direct effect on the states, on case basis and in land use plans. BLM
pipelines, the projects located on right-
the relationship between the national has issued a Finding of No Significant
of-way grants support domestic, not
government and the states, or on the Impact. The Environmental Assessment
foreign, activities and do not involve
distribution of power and is part of the Administrative Record for
products and services which are
responsibilities among the various the rule.
exported. MLA pipelines may transport
oil and gas and their related products levels of government. Under the final We have examined this rule to
destined for foreign markets, but the rule qualifying states continue to be determine whether it requires
increase in fees, compared to the cost of, exempt from paying processing and compliance under section 7 of the
and profits from, running an oil and gas monitoring fees and the final rule does Endangered Species Act (ESA). The ESA
pipeline that would feed into a foreign not otherwise affect states, the national requires agencies to consult or confer
market, is minimal. government’s relationship with them, or with the Fish and Wildlife Service or
the distribution of power and National Marine Fisheries Service
Unfunded Mandates Reform Act responsibilities among the various (Service) on an action when there is
In accordance with the Unfunded levels of government. ‘‘discretionary Federal involvement or
Mandates Reform Act (2 U.S.C. 1501 et control’’ over the action. 50 CFR 402.03.
Executive Order 12988, Civil Justice Formal consultation under section 7 of
seq.):
a. This rule will not ‘‘significantly or Reform the ESA is required when an agency
uniquely’’ affect small governments. A In accordance with Executive Order determines that a proposed action may
Small Government Agency Plan is not 12988, the Office of the Solicitor has affect listed species or critical habitat. If
required. See the Executive Order 12866 determined that the rule does not an agency determines that a proposed
discussion above. unduly burden the judicial system and action is not likely to adversely affect
b. This rule will not produce a meets the requirements of sections 3(a) listed species or critical habitat, the
Federal mandate on state, local, or tribal and 3(b)(2) of the Order. For example, agency may request concurrence with
governments, in the aggregate, or the we have reviewed these regulations to this determination from the Service. If,
private sector of $100 million or greater eliminate drafting errors and ambiguity. however, an agency determines that a
in any year, i.e., it is not a ‘‘significant They have been written to minimize proposed action will have no effect on
regulatory action’’ under the Unfunded litigation, provide clear legal standards listed species or critical habitat, no
Mandates Reform Act. The total for affected conduct rather than general further compliance under Section 7 is
maximum increases in cost recovery standards, and promote simplification required.

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21058 Federal Register / Vol. 70, No. 77 / Friday, April 22, 2005 / Rules and Regulations

We have determined that except for practice related to 1866 Act rights-of- 43 CFR Part 2920
section 2801.6 of the final rule (dealing way. Penalties, Public lands, and Reporting
with certain, private pre-FLPMA rights- and recordkeeping requirements.
of-way) this rule governs discretionary Executive Order 13175, Consultation
Federal control over rights-of-way and is and Coordination With Indian Tribal 43 CFR Part 9230
therefore subject to compliance with the Governments
Penalties and Public lands.
ESA. We have further determined that In accordance with Executive Order
the final rule will have no effect on 43 CFR Part 9260
13175, BLM evaluated possible effects
listed or proposed species or on on federally recognized Indian tribes Continental shelf, Forests and forest
designated or proposed critical habitat and determined that there are no products, Law enforcement, Penalties,
under the ESA and therefore potential effects. The rule does not Public lands, Range management,
consultation under section 7 of the ESA contain policies that have tribal Recreation and recreation areas, and
is not required. Our determination is implications. The BLM may only issue Wildlife.
based on the fact that nothing in the right-of-way grants across public lands Dated: November 4, 2004.
final rule changes existing processes that it manages or across Federal lands Rebecca W. Watson,
and procedures that ensure the held by two or more Federal agencies. Assistant Secretary, Land and Minerals
protection of listed or proposed species Indian tribes have jurisdiction over their Management.
or designated or proposed critical own lands, subject to the Secretary’s Editorial Note: This document was
habitat. Existing processes and trust responsibility. To our knowledge, received at the Office of the Federal Register
procedures have been in effect since no Indian tribes are involved in any on April 11, 2005.
BLM promulgated right-of-way multi-agency grants. ■ For the reasons set out in the preamble
regulations in 1979–80. Moreover, the and under the authorities cited below,
promulgation of regulations is not an Executive Order 13211, Actions
Concerning Regulations That amend Title 43, Subtitle B, Chapter II,
ongoing agency action in that once a Subchapter B, Parts 2800, 2810, 2880,
rule is adopted, the Federal action is Significantly Affect Energy Supply,
Distribution, or Use and 2920, and Subchapter I, Parts 9230
complete. See Norton v. Southern Utah and 9260 as follows:
Wilderness Alliance, 124 S. Ct. 2372 ■ 1. Revise part 2800 to read as follows:
(2004). Therefore, any further This regulation is not a significant
compliance with the ESA will occur energy action and, accordingly, no
Statement of Energy Effects is required. PART 2800—RIGHTS-OF-WAY UNDER
when an application for a right-of-way THE FEDERAL LAND POLICY
is filed with BLM. This rule is not likely to have a
significant adverse effect on the nation’s MANAGEMENT ACT
The rule’s provision relating to rights-
energy supply, distribution, or use. To Subpart 2801—General Information
of-way for reservoirs, ditches, and
the extent that the rule will have any Sec.
canals established by the Mining Act of
effect, we anticipate it will be positive. 2801.2 What is the objective of BLM’s right-
July 26, 1866 is not subject to ESA
The rule makes application and other of-way program?
compliance. Section 2801.6 of the final
procedures clearer, which should 2801.5 What acronyms and terms are used
rule reflects long-standing law by in the regulations in this part?
expedite application processing.
providing that these rights-of-way are 2801.6 Scope.
not subject to the rule. Rights-of-way Authors 2801.8 Severability.
under the 1866 Act are Congressional 2801.9 When do I need a grant?
grants that are perpetual and do not The principal authors of this final rule 2801.10 How do I appeal a BLM decision
require renewal; no authorization under are Bil Weigand, Idaho State Office, and issued under the regulations in this part?
FLPMA exists or is required in the Rick Stamm, Washington Office, Mike Subpart 2802—Lands Available for FLPMA
future. Therefore, unless the holder of DeKeyrel, Utah State Office, and Tom Grants
the right-of-way acts in a manner that Hurshman, Montrose Field Office, 2802.10 What lands are available for grants?
exceeds the scope of, or is otherwise assisted by Ian Senio of the Regulatory 2802.11 How does BLM designate
inconsistent with, the right-of-way Affairs Group and Michael Hickey of the corridors?
granted (e.g., by moving the existing Office of the Solicitor.
Subpart 2803—Qualifications for Holding
ditch), no opportunity exists for BLM to List of Subjects FLPMA Grants
exercise its discretion. And where there 2803.10 Who may hold a grant?
is no Federal discretion or control, 43 CFR Part 2800 2803.11 Can another person act on my
section 7 of the ESA does not apply. behalf?
Communications, Electric power,
In March, 2004, the District Court for 2803.12 What happens to my application or
Highways and roads, Penalties, Public grant if I die?
the District of Idaho ruled that BLM has
lands and rights-of-way, and Reporting
discretion to impose conditions on the Subpart 2804—Applying for FLPMA Grants
and recordkeeping requirements.
operation of water diversions authorized 2804.10 What should I do before I file my
by the 1866 Act and that BLM’s decision 43 CFR Part 2810 application?
not to impose conditions—as evidenced 2804.11 Where do I file my grant
by BLM’s right-of-way regulations— Highways and roads, Public lands application?
constitute an action that triggers rights-of-way, and Reporting and 2804.12 What information must I submit in
consultation under the ESA. Western recordkeeping requirements. my application?
Watersheds Project, et al. v. Matejko, et 2804.13 Will BLM keep my information
43 CFR Part 2880 confidential?
al., No. CIV 01–0259–E–BLW (D. Idaho
2804.14 What is the processing fee for a
2004). The United States has filed a Administrative practice and grant application?
protective notice of appeal of this procedures, Common carriers, Pipelines, 2804.15 When does BLM reevaluate the
ruling. As noted above, this final rule Public lands rights-of-way, and processing and monitoring fees?
reflects well-established law and is Reporting and recordkeeping 2804.16 Who is exempt from paying
consistent with BLM’s historical requirements. processing and monitoring fees?

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2804.17 What is a Master Agreement 2806.23 How must I make rental payments 2807.14 How will BLM notify me if
(Processing Category 5) and what for a linear grant? someone else wants a grant for land
information must I provide to BLM when subject to my grant or near or adjacent
I request one? Communication Site Rights-of-Way
to it?
2804.18 What provisions do Master 2806.30 What are the rents for 2807.15 How is grant administration
Agreements contain and what are their communication site rights-of-way? affected if the land my grant encumbers
limitations? 2806.31 How will BLM calculate rent for a is transferred to another Federal agency
2804.19 How will BLM process my right-of-way for communication uses in or out of Federal ownership?
Processing Category 6 application? the schedule? 2807.16 Under what conditions may BLM
2804.20 How does BLM determine 2806.32 How does BLM determine the order an immediate temporary
reasonable costs for Processing Category population strata served? suspension of my activities?
6 or Monitoring Category 6 applications? 2806.33 How will BLM calculate the rent 2807.17 Under what conditions may BLM
2804.21 What other factors will BLM for a grant or lease authorizing a single suspend or terminate my grant?
consider in determining processing and use communication facility? 2807.18 How will I know that BLM intends
monitoring fees? 2806.34 How will BLM calculate the rent to suspend or terminate my grant?
2804.22 How will the availability of funds for a grant or lease authorizing a 2807.19 When my grant terminates, what
affect the timing of BLM’s processing? multiple-use communication facility? happens to any facilities on it?
2804.23 What if there are two or more 2806.35 How will BLM calculate rent for 2807.20 When must I amend my
competing applications for the same private mobile radio service (PMRS), application, seek an amendment of my
facility or system? internal microwave, and ’other’’ category grant, or obtain a new grant?
2804.24 Do I always have to submit an uses? 2807.21 May I assign my grant?
application for a grant using Standard 2806.36 If I am a tenant or customer in a 2807.22 How do I renew my grant?
Form 299? facility, must I have my own grant or
2804.25 How will BLM process my lease and if so, how will this affect my Subpart 2808—Trespass
application? rent? 2808.10 What is trespass?
2804.26 Under what circumstances may 2806.37 How will BLM calculate rent for a 2808.11 What will BLM do if it determines
BLM deny my application? grant or lease involving an entity with a that I am in trespass?
2804.27 What fees do I owe if BLM denies single use (holder or tenant) having 2808.12 May I receive a grant if I am or
my application or if I withdraw my equipment or occupying space in have been in trespass?
application? multiple BLM-authorized facilities to
2804.28 What processing fees must I pay for support that single use? Subpart 2809—Grants for Federal Agencies
a BLM grant application associated with 2806.38 Can I combine multiple grants or 2809.10 Do the regulations in this part
Federal Energy Regulatory Commission leases for facilities located on one site apply to Federal agencies?
(FERC) licenses or re-license into a single grant or lease?
applications under part I of the Federal 2806.39 How will BLM calculate rent for a Authority: 43 U.S.C. 1733, 1740, 1763, and
Power Act (FPA)? lease for a facility manager’s use? 1764.
2804.29 What activities may I conduct on 2806.40 How will BLM calculate rent for a
the lands covered by the proposed right- grant or lease for ancillary Subpart 2801—General information
of-way while BLM is processing my communication uses associated with
application? communication uses on the rent § 2801.2 What is the objective of BLM’s
schedule? right-of-way program?
Subpart 2805—Terms and Conditions of
Grants 2806.41 How will BLM calculate rent for It is BLM’s objective to grant rights-of-
communication facilities ancillary to a way under the regulations in this part to
2805.10 How will I know whether BLM has linear grant or other use authorization?
approved or denied my application?
any qualified individual, business, or
2806.42 How will BLM calculate rent for a government entity and to direct and
2805.11 What does a grant contain? grant or lease authorizing a
2805.12 What terms and conditions must I control the use of rights-of-way on
communication use within a federally-
comply with? owned communication facility?
public lands in a manner that:
2805.13 When is a grant effective? 2806.43 How does BLM calculate rent for
(a) Protects the natural resources
2805.14 What rights does a grant convey? passive reflectors and local exchange associated with public lands and
2805.15 What rights does the United States networks? adjacent lands, whether private or
retain? 2806.44 How will BLM calculate rent for a administered by a government entity;
2805.16 If I hold a grant, what monitoring (b) Prevents unnecessary or undue
facility owner’s or facility manager’s
fees must I pay?
2805.17 When do I pay monitoring fees?
grant or lease which authorizes degradation to public lands;
communication uses subject to the (c) Promotes the use of rights-of-way
Subpart 2806—Rents communication use rent schedule and in common considering engineering and
communication uses whose rent BLM technological compatibility, national
General Provisions determines by other means?
2806.10 What rent must I pay for my grant?
security, and land use plans; and
2806.11 How will BLM charge me rent? Other Rights-of-Way (d) Coordinates, to the fullest extent
2806.12 When do I pay rent? 2806.50 How Will BLM Determine the Rent possible, all BLM actions under the
2806.13 What happens if I pay the rent late? for a Grant When Neither the Linear Rent regulations in this part with state and
2806.14 Under what circumstances am I Schedule at § 2806.20 nor the local governments, interested
exempt from paying rent? communication use rent schedule at individuals, and appropriate quasi-
2806.15 Under what circumstances may § 2806.30 applies? public entities.
BLM waive or reduce my rent?
Subpart 2807—Grant Administration and
2806.16 When must I make estimated rent § 2801.5 What acronyms and terms are
payments to BLM? Operation
used in the regulations in this part?
2807.10 When can I start activities under (a) Acronyms. As used in this part:
Linear Rights-of-Way my grant? ALJ means Administrative Law Judge.
2806.20 What is the rent for a linear right- 2807.11 When must I contact BLM during
BLM means the Bureau of Land
of-way? operations?
2806.21 When and how does the linear rent 2807.12 If I hold a grant, for what am I Management.
schedule change? liable? CERCLA means the Comprehensive
2806.22 How will BLM calculate my rent 2807.13 As grant holders, what liabilities Environmental Response Compensation
for linear rights-of-way the schedule do state, tribal, and local governments and Liability Act (42 U.S.C. 9601 et
covers? have? seq.).

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EA means environmental assessment. of communication uses, including trunked radio (specialized mobile
EIS means environmental impact related technologies, located in a facility radio), two-way radio voice dispatch,
statement. associated with a particular grant or public switched network (telephone/
IBLA means the Department of the lease. All use categories include data) interconnect service, microwave
Interior, Board of Land Appeals. ancillary communications equipment, communications link equipment, and
IPD–GDP means the Implicit Price such as internal microwave or internal other two-way voice and paging
Deflator, Gross Domestic Product, as one-or two-way radio, that are directly services. ‘‘Facility Managers’’ are grant
published in the most recent edition of related to operating, maintaining, and or lease holders that lease building,
the Survey of Current Business of the monitoring the primary uses listed tower, and related facility space to a
Department of Commerce, Bureau of below. The Federal Communications variety of tenants and customers as part
Economic Analysis. Commission (FCC) may or may not of the holder’s business enterprise, but
NEPA means the National license the primary uses. The type of do not own or operate communication
Environmental Policy Act of 1969 (42 use and community served, identified equipment in the facility for their own
U.S.C. 4321 et seq.). on an FCC license, if one has been uses;
RMA means the Ranally Metro Area issued, do not supersede either the (6) Cellular telephone means a system
Population Ranking as published in the definitions in this subpart or the of mobile or fixed communication
most recent edition of the Rand McNally procedures in § 2806.30 of this part for devices that use a combination of radio
Commercial Atlas and Marketing Guide. calculating rent for communication and telephone switching technology and
(b) Terms. As used in this part, the facilities and uses located on public provide public switched network
term: land: services to fixed or mobile users, or
Act means the Federal Land Policy (1) Television broadcast means a use both, within a defined geographic area.
and Management Act of 1976 (43 U.S.C. that broadcasts UHF and VHF audio and The system consists of one or more cell
1701 et seq.). video signals for general public sites containing transmitting and
Actual costs means the financial reception. This category does not receiving antennas, cellular base station
measure of resources the Federal include low-power television (LPTV) or radio, telephone equipment, or
government expends or uses in rebroadcast devices, such as translators, microwave communications link
processing a right-of-way application or or transmitting devices, such as equipment. Examples of cellular
in monitoring the construction, microwave relays serving broadcast telephone include: Personal
operation, and termination of a facility translators; Communication Service, Enhanced
authorized by a grant or permit. Actual (2) AM and FM radio broadcast means Specialized Mobile Radio, Improved
costs includes both direct and indirect a use that broadcasts amplitude Mobile Telephone Service, Air-to-
costs, exclusive of management modulation (AM) or frequency Ground, Offshore Radio Telephone
overhead costs. modulation (FM) audio signals for Service, Cell Site Extenders, and Local
Base rent means the dollar amount general public reception. This category Multipoint Distribution Service;
required from a grant or lease holder on does not include low-power FM radio; (7) Private mobile radio service
BLM managed lands based on the rebroadcast devices, such as translators; (PMRS) means uses supporting private
communication use with the highest or boosters or microwave relays serving mobile radio systems primarily for a
value in the associated facility or broadcast translators; single entity for mobile internal
facilities, as calculated according to the (3) Cable television means a use that communications. PMRS service is not
communication use rent schedule. If a transmits video programming to sold and is exclusively limited to the
facility manager’s or facility owner’s multiple subscribers in a community user in support of business, community
scheduled rent is equal to the highest over a wired or wireless network. This activities, or other organizational
rent charged a tenant in the facility or category does not include rebroadcast communication needs. Examples of
facilities, then the facility manager’s or devices that retransmit television PMRS include: Private local radio
facility owner’s use determines the signals of one or more television dispatch, private paging services, and
dollar amount of the base rent. broadcast stations, or personal or ancillary microwave communications
Otherwise, the facility owner’s, facility internal antenna systems, such as equipment for controlling mobile
manager’s, customer’s, or tenant’s use private systems serving hotels and facilities;
with the highest value, and which is not residences; (8) Microwave means communication
otherwise excluded from rent, (4) Broadcast translator, low-power uses that:
determines the base rent. television, and low-power FM radio (i) Provide long-line intrastate and
Casual use means activities ordinarily means a use of translators, LPTV, or interstate public telephone, television,
resulting in no or negligible disturbance low-power FM radio (LPFM). and data transmissions; or
of the public lands, resources, or Translators receive a television or FM (ii) Support the primary business of
improvements. Examples of casual use radio broadcast signal and rebroadcast it pipeline and power companies,
include: Surveying, marking routes, and on a different channel or frequency for railroads, land resource management
collecting data to use to prepare grant local reception. In some cases the companies, or wireless internet service
applications. translator relays the true signal to an provider (ISP) companies; and
Commercial purpose or activity refers amplifier or another translator. LPTV (9) Other communication uses means
to the circumstance where a holder and LPFM are broadcast translators that private communication uses, such as
attempts to produce a profit by allowing originate programming. This category amateur radio, personal/private receive-
the use of its facilities by an additional also includes translators associated with only antennas, natural resource and
party. BLM may assess an appropriate public telecommunication services; environmental monitoring equipment,
rent for such commercial activities. The (5) Commercial mobile radio service and other small, low-power devices
holder’s use may not otherwise be (CMRS)/facility manager means used to monitor or control remote
subject to rent charges under BLM’s commercial mobile radio uses that activities;
rental provisions. provide mobile communication service Customer means an occupant who is
Communication use rent schedule is a to individual customers. Examples of paying a facility manager, facility
schedule of rents for the following types CMRS include: Community repeaters, owner, or tenant for using all or any part

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of the space in the facility, or for (3) Owns and operates his or her own Interior through BLM without regard to
communication services, and is not communications equipment in the how the United States acquired
selling communication services or facility for personal or commercial ownership, except lands:
broadcasting to others. We consider purposes. (1) Located on the Outer Continental
persons or entities benefitting from Grant means any authorization or Shelf; and
private or internal communication uses instrument (e.g., easement, lease, (2) Held for the benefit of Indians,
located in a holder’s facility as license, or permit) BLM issues under Aleuts, and Eskimos.
customers for purposes of calculating Title V of the Federal Land Policy and Reasonable costs has the meaning
rent. Customer uses are not included in Management Act, 43 U.S.C. 1761 et seq., found at section 304(b) of the Act.
calculating the amount of rent owed by and those authorizations and Release has the meaning found at 42
a facility owner, facility manager, or instruments BLM and its predecessors U.S.C. 9601(22) of CERCLA.
tenant, except as noted in issued for like purposes before October
Right-of-way means the public lands
§§ 2806.34(b)(4) and 2806.42 of this 21, 1976, under then existing statutory
BLM authorizes a holder to use or
part. Examples of customers include: authority. It does not include
occupy under a grant.
Users of PMRS, users in the microwave authorizations issued under the Mineral
Site means an area, such as a
category when the microwave use is Leasing Act (30 U.S.C. 185).
Hazardous material means: mountaintop, where a holder locates
limited to internal communications, and
(1) Any substance or material defined one or more communication or other
all users in the category of ‘‘Other
as hazardous, a pollutant, or a right-of-way facilities.
communication uses’’ (see paragraph (a)
of the definition of Communication Use contaminant under CERCLA at 42 Substantial deviation means a change
Rent Schedule in this section). U.S.C. 9601(14) and (33); in the authorized location or use which
(2) Any regulated substance contained requires:
Designated right-of-way corridor
means a parcel of land with specific in or released from underground storage (1) Construction or use outside the
boundaries identified by law, Secretarial tanks, as defined by the Resource boundaries of the right-of-way; or
order, the land-use planning process, or Conservation and Recovery Act at 42 (2) Any change from, or modification
other management decision, as being a U.S.C. 6991; of, the authorized use. Examples of
preferred location for existing and (3) Oil, as defined by the Clean Water substantial deviation include: Adding
future rights-of-way and facilities. The Act at 33 U.S.C. 1321(a) and the Oil equipment, overhead or underground
corridor may be suitable to Pollution Act at 33 U.S.C. 2701(23); or lines, pipelines, structures, or other
accommodate more than one type of (4) Other substances applicable facilities not included in the original
right-of-way use or facility or one or Federal, state, tribal, or local law define grant.
more right-of-way uses or facilities and regulate as ‘‘hazardous.’’ Tenant means an occupant who is
which are similar, identical, or Holder means any entity with a BLM paying a facility manager, facility
compatible. right-of-way authorization. owner, or other entity for occupying and
Management overhead costs means using all or any part of a facility. A
Discharge has the meaning found at
Federal expenditures associated with tenant operates communication
33 U.S.C. 1321(a)(2) of the Clean Water
BLM’s directorate, including all BLM equipment in the facility for profit by
Act.
State Directors and the entire broadcasting to others or selling
Facility means an improvement or
Washington Office staff, except where a communication services. For purposes
structure, whether existing or planned,
State Director or Washington Office staff of calculating the amount of rent that
that is or would be owned and
member is required to perform work on BLM charges, a tenant’s use does not
controlled by the grant or lease holder
a specific right-of-way case. include:
within a right-of-way. For purposes of Monetary value of the rights and
communication site rights-of-way or (1) Private mobile radio or internal
privileges you seek means the objective microwave use that is not being sold; or
uses, facility means the building, tower, value of the right-of-way or what the
and related incidental structures or (2) A use in the category of ‘‘Other
right-of-way grant is worth in financial
improvements authorized under the Communication Uses’’ (see paragraph
terms to the applicant.
terms of the grant or lease. (a) of the definition of Communication
Monitoring means those actions the
Facility manager means a person or Use Rent Schedule in this section).
Federal government performs to ensure
entity that leases space in a facility to compliance with the terms, conditions, Third party means any person or
communication users and: and stipulations of a grant. entity other than BLM, the applicant, or
(1) Holds a communication use grant (1) For Monitoring Categories 1 the holder of a right-of-way
or lease; through 4, the actions include authorization.
(2) Owns a communications facility inspecting construction, operation, Tramway means a system for carrying
on lands covered by that grant or lease; maintenance, and termination of passengers, logs, or other material using
and permanent or temporary facilities and traveling carriages or cars suspended
(3) Does not own or operate protection and rehabilitation activities from an overhead cable or cables
communications equipment in the until the holder completes rehabilitation supported by a series of towers, hangers,
facility for personal or commercial of the right-of-way and BLM approves it; tailhold anchors, guyline trees, etc.
purposes. (2) For Monitoring Category 5 (Master Transportation and utility corridor
Facility owner means a person or Agreements), those actions agreed to in means a parcel of land, without fixed
entity that may or may not lease space the Master Agreement; and limits or boundaries, that holders use as
in a facility to communication users (3) For Monitoring Category 6, those the location for one or more
and: actions agreed to between BLM and the transportation or utility rights-of-way.
(1) Holds a communication use grant applicant before BLM issues the grant. Zone means one of eight geographic
or lease; Public lands means any land and groupings necessary for linear right-of-
(2) Owns a communications facility interest in land owned by the United way rent assessment purposes, covering
on lands covered by that grant or lease; States within the several states and all lands in the contiguous United
and administered by the Secretary of the States.

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§ 2801.6 Scope. (C) Includes continued operation of § 2801.10 How do I appeal a BLM decision
(a) What do these regulations apply such project (license renewal) under issued under the regulations in this part?
to? The regulations in this part apply to: section 15 (16 U.S.C. 808) of the FPA; (a) You may appeal a BLM decision
(1) Grants for necessary transportation (ii) Paragraph (b)(7)(i) of this section issued under the regulations in this part
or other systems and facilities which are does not apply to any additional public in accordance with part 4 of this title.
in the public interest and which require lands the project uses that are not (b) All BLM decisions under this part
the use of public lands for the purposes subject to the reservation in paragraph remain in effect pending appeal unless
identified in 43 U.S.C. 1761, and (b)(7)(i)(A) of this section. the Secretary of the Interior rules
administering, amending, assigning, otherwise, or as noted in this part. You
§ 2801.8 Severability. may petition for a stay of a BLM
renewing, and terminating them;
(2) Grants to Federal departments or If a court holds any provisions of the decision under this part with the Office
agencies for transporting by pipeline regulations in this part or their of Hearings and Appeals, Department of
and related facilities oil, natural gas, applicability to any person or the Interior. Unless otherwise noted in
synthetic liquid or gaseous fuels, and circumstances invalid, the remainder of this part, BLM will take no action on
any refined products produced from these rules and their applicability to your application while your appeal is
them; and other people or circumstances will not pending.
(3) Grants issued on or before October be affected.
Subpart 2802—Lands Available for
21, 1976, under then existing statutory § 2801.9 When do I need a grant? FLPMA Grants
authority, unless application of these
regulations would diminish or reduce (a) You must have a grant under this § 2802.10 What lands are available for
any rights conferred by the original part when you plan to use public lands grants?
grant or the statute under which it was for systems or facilities over, under, on, (a) In its discretion, BLM may grant
issued. Where there would be a or through public lands. These include, rights-of-way on any lands under its
diminishment or reduction in any right, but are not limited to: jurisdiction except when:
the grant or statute applies. (1) Reservoirs, canals, ditches, flumes, (1) A statute, regulation, or public
(b) What don’t these regulations apply laterals, pipelines, tunnels, and other land order specifically excludes rights-
to? The regulations in this part do not systems which impound, store, of-way;
apply to: transport, or distribute water; (2) The lands are specifically
(1) Federal Aid Highways, for which (2) Pipelines and other systems for segregated or withdrawn from right-of-
Federal Highway Administration transporting or distributing liquids and way uses; or
procedures apply; gases, other than water and other than (3) BLM identifies areas in its land
(2) Roads constructed or used oil, natural gas, synthetic liquid or use plans or in the analysis of an
according to reciprocal and cost share gaseous fuels, or any refined products application as inappropriate for right-of-
road use agreement under subpart 2812 from them, or for storage and terminal way uses.
of this chapter; facilities used in connection with them; (b) BLM may require common use of
(3) Lands within designated (3) Pipelines, slurry and emulsion a right-of-way and may require, to the
wilderness areas, although BLM may systems, and conveyor belts for extent practical, location of new rights-
authorize some uses under parts 2920 transporting and distributing solid of-way within existing or designated
and 6300 of this chapter; materials and facilities for storing such right-of-way corridors (see § 2802.11 of
(4) Grants to holders other than materials in connection with them; this subpart). Safety and other
Federal departments or agencies for considerations may limit the extent to
(4) Systems for generating, which you may share a right-of-way.
transporting by pipeline and related transmitting, and distributing
facilities oil, natural gas, synthetic BLM will designate right-of-way
electricity; corridors through land use plan
liquid or gaseous fuels, or any refined
(5) Systems for transmitting or decisions.
product produced from them (see part
receiving electronic signals and other (c) You should contact the BLM office
2880 of this chapter);
means of communication; nearest the lands you seek to use to:
(5) Public highways constructed
under the authority of Revised Statute (6) Transportation systems, such as (1) Determine whether or not the land
(R.S.) 2477 (43 U.S.C. 932, repealed roads, trails, highways, railroads, canals, you want to use is available for that use;
October 21, 1976); tunnels, tramways, airways, and and
livestock driveways; and (2) Begin discussions about any
(6) Reservoirs, canals, and ditches
(7) Such other necessary application you may need to file.
constructed under the authority of R.S.
2339 and R.S. 2340 (43 U.S.C. 661, transportation or other systems or § 2802.11 How does BLM designate
repealed in part, October 21, 1976); or facilities which are in the public interest corridors?
(7)(i) Any project or portion of a and which require rights-of-way. (a) BLM may determine the locations
project that, prior to October 24, 1992, (b) If you apply for a right-of-way and boundaries of right-of-way corridors
was licensed under, or granted an grant for generating, transmitting, and during the land-use planning process
exemption from, part I of the Federal distributing electricity, you must also described in part 1600 of this chapter.
Power Act (FPA) (16 U.S.C. 791a et seq.) comply with the applicable During this process BLM coordinates
which: requirements of the Federal Energy with other Federal agencies, state, local,
(A) Is located on lands subject to a Regulatory Commission under the and tribal governments, and the public
reservation under section 24 (16 U.S.C. Federal Power Act of 1935, 16 U.S.C. to identify resource-related issues,
818) of the FPA; 791a et seq., and 18 CFR chapter I. concerns, and needs. The process
(B) Did not receive a grant under Title (c) See part 2880 of this chapter for results in a resource management plan
V of the Federal Land Policy and information about authorizations BLM or plan amendment, which addresses to
Management Act (FLPMA) before issues under the Mineral Leasing Act for what extent you may use public lands
October 24, 1992; and transporting oil and gas resources. and resources for specific purposes.

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(b) When determining which lands to do so under the laws of the state § 2804.12 What information must I submit
may be suitable for right-of-way where the right-of-way is or will be in my application?
corridors, the factors BLM considers located. (a) File your application on Standard
include, but are not limited to, the Form 299, available from any BLM
following: § 2803.12 What happens to my application office, and fill in the required
or grant if I die?
(1) Federal, state, and local land use information as completely as possible.
plans, and applicable Federal, state, (a) If an applicant or grant holder dies, Your completed application must
local, and tribal laws; any inheritable interest in an include:
(2) Environmental impacts on cultural application or grant will be distributed (1) A description of the project and
resources and natural resources, under state law. the scope of the facilities;
including air, water, soil, fish, wildlife, (b) If the distributee of a grant is not (2) The estimated schedule for
and vegetation; qualified to hold a grant under § 2803.10 constructing, operating, maintaining,
(3) Physical effects and constraints on of this subpart, BLM will recognize the and terminating the project;
corridor placement due to geology, distributee as grant holder and allow the (3) The estimated life of the project
hydrology, meteorology, soil, or land distributee to hold its interest in the and the proposed construction and
forms; grant for up to two years. During that reclamation techniques;
(4) Costs of construction, operation, period, the distributee must either (4) A map of the project, showing its
and maintenance and costs of modifying become qualified or divest itself of the proposed location and existing facilities
or relocating existing facilities in a interest. adjacent to the proposal;
proposed right-of-way corridor (i.e., the (5) A statement of your financial and
economic efficiency of placing a right- Subpart 2804—Applying for FLPMA technical capability to construct,
of-way within a proposed corridor); Grants operate, maintain, and terminate the
(5) Risks to national security; project;
(6) Potential health and safety hazards § 2804.10 What should I do before I file my (6) Any plans, contracts, agreements,
imposed on the public by facilities or application?
or other information concerning your
activities located within the proposed (a) Before filing an application with use of the right-of-way and its effect on
right-of-way corridor; BLM, we encourage you to make an competition; and
(7) Social and economic impacts of appointment for a preapplication (7) A statement certifying that you are
the right-of-way corridor on public land meeting with the appropriate personnel of legal age and authorized to do
users, adjacent landowners, and other in the BLM field office having business in the state(s) where the right-
groups or individuals; jurisdiction over the lands you seek to of-way would be located, and that you
(8) Transportation and utility corridor use. During the preapplication meeting, have submitted correct information to
studies previously developed by user BLM can: the best of your knowledge.
groups; and (1) Identify potential routing and (b) If you are a business entity, you
(9) Engineering and technological other constraints; must also submit the following
compatibility of proposed and existing (2) Determine whether or not the information:
facilities. lands are located within a designated or (1) Copies of the formal documents
(c) BLM may designate any creating the entity, such as articles of
existing right-of-way corridor;
transportation and utility corridor incorporation, and including the
existing prior to October 21, 1976, as a (3) Tentatively schedule the
processing of your proposed corporate bylaws;
transportation and utility corridor (2) Evidence that the party signing the
without further review. application; and
application has the authority to bind the
(d) The resource management plan or (4) Inform you of your financial
applicant;
plan amendment may also identify areas obligations, such as processing and (3) The name and address of each
where BLM will not allow right-of-way monitoring costs and rents. participant in the business;
corridors for environmental, safety, or (b) Subject to § 2804.13 of this (4) The name and address of each
other reasons. subpart, BLM may share any shareholder owning 3 percent or more
information you provide under of the shares, and the number and
Subpart 2803—Qualifications for paragraph (a) of this section with percentage of any class of voting shares
Holding FLPMA Grants Federal, state, tribal, and local of the entity which such shareholder is
government agencies to ensure that: authorized to vote;
§ 2803.10 Who may hold a grant?
(1) These agencies are aware of any (5) The name and address of each
To hold a grant under these authorizations you may need from them;
regulations, you must be: affiliate of the business;
and (6) The number of shares and the
(a) An individual, association,
corporation, partnership, or similar (2) We initiate effective coordinated percentage of any class of voting stock
business entity, or a Federal agency or planning as soon as possible. owned by the business, directly or
state, tribal, or local government; indirectly, in any affiliate controlled by
§ 2804.11 Where do I file my grant the business;
(b) Technically and financially able to application?
construct, operate, maintain, and (7) The number of shares and the
(a) You must file the grant application percentage of any class of voting stock
terminate the use of the public lands
in the BLM field office having owned by an affiliate, directly or
you are applying for; and
jurisdiction over the lands affected by indirectly, in the business controlled by
(c) Of legal age and authorized to do
your application. the affiliate; and
business in the state where the right-of-
way you seek is located. (b) If your application affects more (8) If you have already provided the
than one BLM administrative unit, you information in paragraphs (b)(1) through
§ 2803.11 Can another person act on my may file at any BLM office having (7) of this section to BLM and the
behalf? jurisdiction over any part of the project. information remains accurate, you need
Another person may act on your BLM will notify you where to direct only reference the BLM serial number
behalf if you have authorized the person subsequent communications. under which you previously filed it.

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(c) BLM may require you to submit involving a right-of-way on public a fee to BLM for the reasonable costs of
additional information at any time lands, simultaneously file an processing your application before the
while processing your application. See application with BLM for a grant. Federal Government incurs them. The
§ 2884.11(c) of this chapter for the type Include a copy of the materials, or fees for Processing Categories 1 through
of information we may require. reference all the information, you filed 4 (see paragraph (b) of this section) are
(d) If you are a Federal oil and gas with the other Federal agency. one-time fees and are not refundable.
lessee or operator and you need a right- The fees are categorized based on an
§ 2804.13 Will BLM keep my information
of-way for access to your production confidential? estimate of the amount of time that BLM
facilities or oil and gas lease, you may will expend to process your application
BLM will keep confidential any
include your right-of-way requirements and issue a decision granting or denying
information in your application that you
with your Application for Permit to the application.
mark as ‘‘confidential’’ or ‘‘proprietary’’
Drill or Sundry Notice required under
to the extent allowed by law. (b) There is no processing fee if BLM’s
parts 3160 through 3190 of this chapter.
(e) If you are filing with another § 2804.14 What is the processing fee for a work is estimated to take one hour or
Federal agency for a license, certificate grant application? less. Processing fees are based on
of public convenience and necessity, or (a) Unless you are exempt under categories. These categories and fees for
other authorization for a project § 2804.16 of this subpart, you must pay 2005 are:

2005 PROCESSING FEE SCHEDULE


Processing fee per application as
of June 21, 2005. To be adjusted
Processing category Federal work hours involved annually for changes in the IPD–
GDP. See paragraph (c) of this
section for update information

(1) Applications for new grants, assignments, renewals, and to existing Estimated Federal work hours are $97.
grants assignments, renewals, and amendments to existing grants. >1 ≤ 8.
(2) Applications for new grants, assignments, renewals, and amend- Estimated Federal work hours are $343.
ments to existing grants. > 8 ≤ 24.
(3) Applications for new grants, assignments, renewals, and amend- Estimated Federal work hours are $644.
ments to existing grants. > 24 ≤ 36.
(4) Applications for new grants, assignments, renewals, and amend- Estimated Federal work hours are $923.
ments to existing grants. > 36 ≤ 50.
(5) Master agreements ............................................................................. Varies ............................................. As specified in the agreement.
(6) Applications for new grants, assignments, renewals, and amend- Estimated Federal work hours are Full reasonable costs.
ments to existing grants. > 50.

(c) BLM will revise paragraph (b) of § 2801.10 of this part. For Processing part) for each category and the
this section to update the processing Categories 5 and 6 applications, see categories themselves within 5 years
fees for Categories 1 through 4 in the §§ 2804.17, 2804.18, and 2804.19 of this after they go into effect and at 10-year
schedule each calendar year, based on subpart. If you paid the processing fee intervals after that. When reevaluating
the previous year’s change in the IPD– and you appeal a Processing Category 1 processing and monitoring fees, BLM
GDP, as measured second quarter to through 4 or a Processing Category 6 considers all factors that affect the fees,
second quarter. BLM will round these determination, BLM will process your including, but not limited to, any
changes to the nearest dollar. BLM will application while the appeal is pending. changes in:
update Category 5 processing fees as If IBLA finds in your favor, you will (a) Technology;
specified in the Master Agreement. You receive a refund or adjustment of your (b) The procedures for processing
also may obtain a copy of the current processing fee. applications and monitoring grants;
schedule from any BLM state or field (e) In processing your application, (c) Statutes and regulations relating to
office or by writing: Director, BLM, 1849 BLM may determine at any time that the the right-of-way program; or
C St., NW., Mail Stop 1000LS, application requires preparing an EIS. If (d) The IPD–GDP.
Washington, DC 20240. BLM also posts this occurs, BLM will send you a
the current schedule on the BLM decision changing your processing § 2804.16 Who is exempt from paying
Homepage on the Internet at http:// category to Processing Category 6. You processing and monitoring fees?
www.blm.gov. may appeal this decision under You are exempt from paying
(d) After an initial review of your § 2801.10 of this part. processing and monitoring fees if:
application, BLM will notify you of the (f) To expedite processing of your (a) You are a state or local
processing category into which your application, you may notify BLM in government, or an agency of such a
application fits. You must then submit writing that you are waiving paying government, and BLM issues the grant
the appropriate payment for that reasonable costs and are electing to pay for governmental purposes benefitting
category before BLM begins processing the full actual costs incurred by BLM in the general public. If your principal
your application. Your signature on a processing your application and source of revenue results from charges
cost recovery Master Agreement monitoring your grant. you levy on customers for services
constitutes your agreement with the similar to those of a profit-making
processing category decision. If you § 2804.15 When does BLM reevaluate the corporation or business, you are not
disagree with the category that BLM has processing and monitoring fees? exempt; or
determined for your application, you BLM reevaluates the processing and (b) Your application under this
may appeal the decision under monitoring fees (see § 2805.16 of this subpart is associated with a cost-share

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road or reciprocal right-of-way § 2804.19 How will BLM process my lands covered by your application a
agreement. Processing Category 6 application? written analysis of those factors
(a) For Processing Category 6 applicable to your project, unless you
§ 2804.17 What is a Master Agreement applications, you and BLM must enter agree in writing to waive consideration
(Processing Category 5) and what
information must I provide to BLM when I
into a written agreement that describes of reasonable costs and elect to pay full
request one? how BLM will process your application. actual costs (see § 2804.14(f) of this
The final agreement consists of a work subpart). Submitting your analysis with
(a) A Master Agreement (Processing
plan and a financial plan. the application will expedite its
Category 5) is a written agreement
(b) In processing your application, handling. BLM may require you to
covering processing and monitoring fees
BLM will: submit additional information in
(see § 2805.16 of this part) negotiated
(1) Determine the issues subject to support of your position. While we
between BLM and you that involves
analysis under NEPA; consider your written analysis, BLM
multiple BLM grant approvals for (2) Prepare a preliminary work plan; will not process your Category 6
projects within a defined geographic (3) Develop a preliminary financial application.
area. plan, which estimates the reasonable (a) FLPMA factors. If your application
(b) Your request for a Master
costs of processing your application and is for a Processing Category 6, or a
Agreement must:
monitoring your project; Monitoring Category 6 project, the BLM
(1) Describe the geographic area
(4) Discuss with you: State Director having jurisdiction over
covered by the Agreement and the scope (i) The preliminary plans and data;
of the activity you plan; the lands you are applying to use will
(ii) The availability of funds and apply the following factors set forth at
(2) Include a preliminary work plan.
personnel; section 304(b) of FLPMA, 43 U.S.C.
This plan must state what work you (iii) Your options for the timing of
must do and what work BLM must do 1734(b), to determine the amount you
processing and monitoring fee owe. With your application, submit
to process your application. Both parties payments; and
must periodically update the work plan, your analysis of how each of the
(iv) Financial information you must following factors applies to your
as specified in the Agreement, and submit; and
mutually agree to the changes; application:
(5) Complete final scoping and (1) Actual costs to BLM (exclusive of
(3) Contain a preliminary cost develop final work and financial plans
estimate and a timetable for processing management overhead costs) of
which reflect any work you have agreed processing your application and of
the application and completing the to do. BLM will also present you with
projects; monitoring construction, operation,
the final estimate of the reasonable costs maintenance, and termination of a
(4) State whether you want the
you must reimburse BLM, including the facility authorized by the right-of-way
Agreement to apply to future
cost for monitoring the project, using grant;
applications in the same geographic area
the factors in §§ 2804.20 and 2804.21 of (2) Monetary value of the rights or
that are not part of the same projects;
this subpart. privileges you seek;
and (c) BLM retains the option to prepare
(5) Contain any other relevant (3) BLM’s ability to process an
any environmental documents related to application with maximum efficiency
information that BLM needs to process
your application. If BLM allows you to and minimum expense, waste, and
the application.
prepare any environmental documents effort;
§ 2804.18 What provisions do Master and conduct any studies that BLM (4) Costs incurred for the benefit of
Agreements contain and what are their needs to process your application, you the general public interest rather than
limitations? must do the work following BLM for the exclusive benefit of the
(a) A Master Agreement: standards. For this purpose, you and applicant. That is, the costs for studies
(1) Specifies that you must comply BLM may enter into a written and data collection that have value to
with all applicable laws and regulations; agreement. BLM will make the final the Federal Government or the general
(2) Describes the work you will do determinations and conclusions arising public apart from processing the
and the work BLM will do to process from such work. application;
the application; (d) BLM will periodically, as stated in (5) Any tangible improvements, such
(3) Describes the method of periodic the agreement, estimate processing costs as roads, trails, and recreation facilities,
billing, payment, and auditing; for a specific work period and notify which provide significant public service
(4) Describes the processes, studies, or you of the amount due. You must pay and are expected in connection with
evaluations you will pay for; the amount due before BLM will constructing and operating the project;
(5) Explains how BLM will monitor continue working on your application. If and
the grant and how BLM will recover your payment exceeds the reasonable (6) Other factors relevant to the
monitoring costs; costs that BLM incurred for the work, reasonableness of the costs (see
(6) Contains provisions allowing for BLM will either adjust the next billing § 2804.21 of this subpart).
periodic review and updating, if to reflect the excess, or refund you the (b) Fee determination. After
required; excess under 43 U.S.C. 1734. You may considering your analysis and other
(7) Contains specific conditions for not deduct any amount from a payment information, BLM will notify you in
terminating the Agreement; and without BLM’s prior written approval. writing of what you owe. If you disagree
(8) Contains any other provisions with BLM’s determination, you may
BLM considers necessary. § 2804.20 How does BLM determine
appeal it under § 2801.10 of this part.
(b) BLM will not enter into any reasonable costs for Processing Category 6
Agreement that is not in the public or Monitoring Category 6 applications? § 2804.21 What other factors will BLM
interest. BLM will consider the factors in consider in determining processing and
(c) If you sign a Master Agreement, paragraph (a) of this section and monitoring fees?
you waive your right to request a § 2804.21 of this subpart to determine (a) Other factors. If you include this
reduction of processing and monitoring reasonable costs. Submit to the BLM information in your application, in
fees. field office having jurisdiction over the arriving at your processing or

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monitoring fee in any category, the BLM your equitable interests or the equitable (c) If BLM determines that
State Director will consider whether: interests of the United States. competition exists, BLM will describe
(1) Payment of actual costs would: (b) Fee determination. With your the procedures for a competitive bid
(i) Result in undue financial hardship written application, submit your through a bid announcement in a
to your small business, and you would analysis of how each of the factors, as newspaper of general circulation in the
receive little monetary value from your applicable, in paragraph (a) of this area affected by the potential right-of-
grant as compared to the costs of section pertain to your application. BLM way and by a notice in the Federal
processing and monitoring; or will notify you in writing of the BLM Register.
(ii) Create such undue financial State Director’s fee determination. You
hardship as to prevent your use and may appeal this decision under § 2804.24 Do I always have to submit an
enjoyment of your right-of-way for a application for a grant using Standard Form
§ 2801.10 of this part. 299?
non-commercial purpose.
(2) The costs of processing the § 2804.22 How will the availability of funds You do not have to file an application
application and monitoring the issued affect the timing of BLM’s processing?
using Standard Form 299 if:
grant grossly exceed the costs of If BLM has insufficient funds to
constructing the project; process your application, we will not (a) BLM determines that competition
(3) You are a non-profit organization, process it until funds become available exists (see § 2804.23(c) of this subpart);
corporation, or association which is not or you elect to pay full actual costs or
controlled by or a subsidiary of a profit- under § 2804.14(f) of this part. (b) You are an oil and gas operator.
making enterprise; and You may include your right-of-way
(i) The studies undertaken in § 2804.23 What if there are two or more requirements for a FLPMA grant as part
connection with processing the competing applications for the same facility of your Application for Permit to Drill
or system?
application or monitoring the grant have or Sundry Notice under the regulations
a public benefit; or (a) If there are two or more competing in parts 3160 through 3190 of this
(ii) The facility or project will provide applications for the same facility or chapter.
a benefit or special service to the general system and your application is in:
public or to a program of the Secretary; (1) Processing Category 1 through 4. § 2804.25 How will BLM process my
(4) You need a grant to prevent or You must reimburse BLM for processing application?
mitigate damages to any lands or costs as if the other application or (a) BLM will notify you in writing
property or to mitigate hazards or applications had not been filed. when it receives your application and
danger to public health and safety (2) Processing Category 6. You are will identify your processing fee
resulting from an act of God, an act of responsible for processing costs described at § 2804.14 of this subpart.
war, or negligence of the United States; identified in your application. If BLM
(5) You have a grant and need to cannot readily separate costs, such as (b) BLM may require you to submit
secure a new or amended grant in order costs associated with preparing additional information necessary to
to relocate an authorized facility to environmental analyses, you and any process the application. This
comply with public health and safety competing applicants must pay an equal information may include a detailed
and environmental protection laws, share or a proportion agreed to in construction, operation, rehabilitation,
regulations, and standards which were writing among all applicants and BLM. and environmental protection plan, i.e.,
not in effect at the time BLM issued If you agree to share costs that are a ‘‘Plan of Development,’’ and any
your original grant; common to your application and that of needed cultural resource surveys or
(6) You have a grant and need to a competing applicant, and the inventories for threatened or
secure a new grant to relocate facilities competitor does not pay the agreed endangered species. If BLM needs more
which you have to move because a upon amount, you are liable for the information, we will identify this
Federal agency or federally-funded entire amount due. The applicants must information in a written deficiency
project needs the lands and the United pay the entire processing fee in advance. notice asking you to provide the
States does not pay the costs associated BLM will not process your application additional information within a
with your relocation; or until we receive the advance payments. specified period of time. BLM will
(7) For whatever other reason, such as (b) Who determines whether notify you of any other grant
public benefits or public services competition exists? BLM determines applications which involve all or part of
provided, collecting processing and whether the applications are compatible the lands for which you applied.
monitoring fees would be inconsistent in a single right-of-way system or are (c) Customer service standard. BLM
with prudent and appropriate competing applications for the same will process your completed application
management of public lands and with system. as follows:

Processing Processing time Conditions


category

1–4 ........... 60 calendar days ........................................ If processing your application will take longer than 60 calendar days, BLM will notify
you in writing of this fact prior to the 30th calendar day and inform you of when you
can expect a final decision on your application.
5 ............... As specified in the Master Agreement ....... BLM will process applications as specified in the Agreement.
6 ............... Over 60 calendar days ............................... BLM will notify you in writing within the initial 60-day processing period of the esti-
mated processing time.

(d) Before issuing a grant, BLM will: application, as required by 40 CFR parts (2) Determine whether or not your
(1) Complete a NEPA analysis for the 1500 through 1508; proposed use complies with applicable
application or approve a NEPA analysis Federal and state laws;
previously completed for the

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(3) If your application is for a road, for the reasonable costs of terminating (3) Will impose a specific term for the
determine whether it is in the public your application. Any money you have grant. Each grant that BLM issues for 20
interest to require you to grant the not paid is due within 30 calendar days or more years will contain a provision
United States an equivalent after receiving a bill for the amount due. requiring periodic review at the end of
authorization across lands that you own; Any money you paid that is not used to the twentieth year and subsequently at
(4) Consult, as necessary, with other cover costs the United States incurred as 10-year intervals. BLM may change the
governmental entities; a result of your application will be terms and conditions of the grant as a
(5) Hold public meetings if sufficient refunded to you. result of these reviews in accordance
public interest exists to warrant their with § 2805.15(e) of this subpart.
time and expense. BLM will publish a § 2804.28 What processing fees must I pay (b) If you agree with the terms and
for a BLM grant application associated with conditions of the unsigned grant, you
notice in the Federal Register, a Federal Energy Regulatory Commission
newspaper of general circulation in the (FERC) licenses or re-license applications
should sign and return it to BLM with
vicinity of the lands involved, or both, under part I of the Federal Power Act any payment required under § 2805.16
announcing in advance any public (FPA)? of this subpart. BLM will sign the grant
hearings or meetings; and (a) You must reimburse BLM for the and return it to you with a final decision
(6) Take any other action necessary to costs which the United States incurs in issuing the grant if the regulations in
fully evaluate and decide whether to processing your grant application this part, including § 2804.26, remain
approve or deny your application. associated with a FERC project, other satisfied. You may appeal this decision
than those described at § 2801.6(b)(7) of under § 2801.10 of this part.
§ 2804.26 Under what circumstances may (c) If BLM denies your application, we
BLM deny my application? this part. BLM also requires
will send you a written decision that
(a) BLM may deny your application if: reimbursement for processing a grant
will:
(1) The proposed use is inconsistent application associated with a FERC (1) State the reasons for the denial
with the purpose for which BLM project licensed before October 24, (see § 2804.26 of this part);
manages the public lands described in 1992, that involves the use of additional (2) Identify any processing costs you
your application; public lands outside the original area must pay (see § 2804.14 of this part);
(2) The proposed use would not be in reserved under section 24 of the FPA. and
the public interest; (b) BLM will determine the amount (3) Notify you of your right to appeal
(3) You are not qualified to hold a you must pay by using the processing this decision under § 2801.10 of this
grant; fee categories described at § 2804.14 of part.
(4) Issuing the grant would be this subpart and bill you for the costs.
FERC will address other costs associated § 2805.11 What does a grant contain?
inconsistent with the Act, other laws, or
these or other regulations; with processing a FERC license or The grant states what your rights are
(5) You do not have or cannot relicense (see 18 CFR chapter I). on the lands subject to the grant and
demonstrate the technical or financial contains information about:
§ 2804.29 What activities may I conduct on (a) What lands you can use or occupy.
capability to construct the project or the lands covered by the proposed right-of-
operate facilities within the right-of- The lands may or may not correspond
way while BLM is processing my
way; or application?
to those for which you applied. BLM
(6) You do not adequately comply will limit the grant to those lands which
(a) You may conduct casual use BLM determines:
with a deficiency notice (see activities on the BLM lands covered by (1) You will occupy with authorized
§ 2804.25(b) of this subpart) or with any the application, as may any other facilities;
BLM requests for additional information member of the public. BLM does not (2) Are necessary for constructing,
needed to process the application. require a grant for casual use on BLM operating, maintaining, and terminating
(b) If BLM denies your application, lands. the authorized facilities;
you may appeal this decision under (b) For any activities on BLM lands (3) Are necessary to protect the public
§ 2801.10 of this part. that are not casual use, you must obtain health and safety;
prior BLM approval. (4) Will not unnecessarily damage the
§ 2804.27 What fees do I owe if BLM
denies my application or if I withdraw my environment; and
Subpart 2805—Terms and Conditions (5) Will not result in unnecessary or
application?
of Grants undue degradation.
If BLM denies your application or you
(b) How long you can use the right-of-
withdraw it, you owe the processing fee § 2805.10 How will I know whether BLM
has approved or denied my application? way. Each grant will state the length of
set forth at § 2804.14 of this subpart,
time that you are authorized to use the
unless you have a Processing Category (a) BLM will send you a written
right-of-way.
5 or 6 application. Then, the following response on your application. If we do (1) BLM will consider the following
conditions apply: not deny the application, we will send factors in establishing a reasonable term:
(a) If BLM denies your Processing you an unsigned grant for your review (i) The public purpose served;
Category 5 or 6 application, you are and signature that: (ii) Cost and useful life of the facility;
liable for all reasonable costs that the (1) Includes any terms, conditions, (iii) Time limitations imposed by
United States incurred in processing it. and stipulations that BLM determines to licenses or permits required by other
The money you have not paid is due be in the public interest. This includes Federal agencies and state, tribal, or
within 30 calendar days after receiving modifying your proposed use or local governments; and
a bill for the amount due. changing the route or location of the (iv) The time necessary to accomplish
(b) You may withdraw your facilities; the purpose of the grant.
application in writing before BLM (2) May include terms that prevent (2) All grants, except those issued for
issues a grant. If you do so, you are your use of the right-of-way until you a term of less than one year and those
liable for all reasonable processing costs have an approved Plan of Development issued in perpetuity, expire on
the United States has incurred up to the and BLM has issued a Notice to December 31 of the final year of the
time you withdraw the application and Proceed; and grant.

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(c) How you can use the right-of-way. air and water quality standards or (n) Comply with all liability and
You may only use the right-of-way for related facility siting standards indemnification provisions and
the specific use the grant authorizes. contained in applicable Federal or state stipulations in the grant;
law or regulations; (o) As BLM directs, provide diagrams
§ 2805.12 What terms and conditions must
(3) Control or prevent damage to: or maps showing the location of any
I comply with?
(i) Scenic, aesthetic, cultural, and constructed facility; and
By accepting a grant, you agree to (p) Comply with all other stipulations
comply with and be bound by the environmental values, including fish
and wildlife habitat; that BLM may require.
following terms and conditions. During
construction, operation, maintenance, (ii) Public and private property; and § 2805.13 When is a grant effective?
and termination of the project you must: (iii) Public health and safety; A grant is effective after both you and
(a) To the extent practicable, comply (4) Protect the interests of individuals BLM sign it. You must accept its terms
with all existing and subsequently living in the general area who rely on and conditions in writing and pay any
enacted, issued, or amended Federal the area for subsistence uses as that term necessary rent and monitoring fees as
laws and regulations and state laws and is used in Title VIII of Alaska National set forth in subpart 2806 of this part and
regulations applicable to the authorized Interest Lands Conservation Act § 2805.16 of this subpart. Your written
use; (ANILCA) (16 U.S.C. 3111 et seq.); acceptance constitutes an agreement
(b) Rebuild and repair roads, fences, (5) Ensure that you construct, operate, between you and BLM that your right to
and established trails destroyed or maintain, and terminate the facilities on use the public lands, as specified in the
damaged by the project; the lands in the right-of-way in a
(c) Build and maintain suitable grant, is subject to the terms and
manner consistent with the grant; conditions of the grant and applicable
crossings for existing roads and
(6) When the state standards are more laws and regulations.
significant trails that intersect the
stringent than Federal standards,
project; § 2805.14 What rights does a grant
(d) Do everything reasonable to comply with state standards for public
health and safety, environmental convey?
prevent and suppress wildfires on or in The grant conveys to you only those
the immediate vicinity of the right-of- protection, and siting, constructing,
operating, and maintaining any facilities rights which it expressly contains. BLM
way area; issues it subject to the valid existing
(e) Not discriminate against any and improvements on the right-of-way;
and rights of others, including the United
employee or applicant for employment
(7) Grant BLM an equivalent States. Rights which the grant conveys
during any phase of the project because
authorization for an access road across to you include the right to:
of race, creed, color, sex, or national
your land if BLM determines the (a) Use the described lands to
origin. You must also require
subcontractors to not discriminate; reciprocal authorization is needed in the construct, operate, maintain, and
(f) Pay monitoring fees and rent public interest and the authorization terminate facilities within the right-of-
described in § 2805.16 of this subpart BLM issues to you is also for road way for authorized purposes under the
and subpart 2806 of this part; access; terms and conditions of the grant;
(g) If BLM requires, obtain, and/or (j) Immediately notify all Federal, (b) If your grant specifically
certify that you have obtained, a surety state, tribal, and local agencies of any authorizes, allow other parties to use
bond or other acceptable security to release or discharge of hazardous your facility for the purposes specified
cover any losses, damages, or injury to material reportable to such entity under in your grant and you may charge for
human health, the environment, and applicable law. You must also notify such use. If your grant does not
property in connection with your use BLM at the same time, and send BLM specifically authorize it, you may not let
and occupancy of the right-of-way, a copy of any written notification you anyone else use your facility and you
including terminating the grant, and to prepared; may not charge for its use unless BLM
secure all obligations imposed by the authorizes or requires it in writing;
(k) Not dispose of or store hazardous
grant and applicable laws and (c) Allow others to use the land as
material on your right-of-way, except as
regulations. If you plan to use hazardous your agent in the exercise of the rights
provided by the terms, conditions, and
materials in the operation of your grant, that the grant specifies;
stipulations of your grant;
you must provide a bond that covers (d) Do minor trimming, pruning, and
(l) Certify your compliance with all removing of vegetation to maintain the
liability for damages or injuries
requirements of the Emergency Planning right-of-way or facility;
resulting from releases or discharges of
and Community Right-to-Know Act of (e) Use common varieties of stone and
hazardous materials. BLM may require a
1986, 42 U.S.C. 11001 et seq., when you soil which are necessarily removed
bond, an increase or decrease in the
receive, assign, renew, amend, or during construction of the project,
value of an existing bond, or other
terminate your grant; without additional BLM authorization
acceptable security at any time during
the term of the grant; (m) Control and remove any release or or payment, in constructing the project
(h) Assume full liability if third discharge of hazardous material on or within the authorized right-of-way; and
parties are injured or damages occur to near the right-of-way arising in (f) Assign the grant to another,
property on or near the right-of-way (see connection with your use and provided that you obtain BLM’s prior
§ 2807.12 of this part); occupancy of the right-of-way, whether written approval.
(i) Comply with project-specific or not the release or discharge is
terms, conditions, and stipulations, authorized under the grant. You must § 2805.15 What rights does the United
including requirements to: also remediate and restore lands and States retain?
(1) Restore, revegetate, and curtail resources affected by the release or The United States retains and may
erosion or conduct any other discharge to BLM’s satisfaction and to exercise any rights the grant does not
rehabilitation measure BLM determines the satisfaction of any other Federal, expressly convey to you. These include
necessary; state, tribal, or local agency having BLM’s right to:
(2) Ensure that activities in jurisdiction over the land, resource, or (a) Access the lands covered by the
connection with the grant comply with hazardous material; grant at any time and enter any facility

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you construct on the right-of-way. BLM have no right to use these resources, Federal government incurs in
will give you reasonable notice before it except as noted in § 2805.14(e) of this monitoring the construction, operation,
enters any facility on the right-of-way; subpart; maintenance, and termination of the
(b) Require common use of your right- (d) Determine whether or not your project and protection and rehabilitation
of-way, including subsurface and air grant is renewable; and of the public lands your grant covers.
space, and authorize use of the right-of- (e) Change the terms and conditions BLM categorizes the monitoring fees
way for compatible uses. You may not of your grant as a result of changes in based on the estimated number of work
charge for the use of the lands made legislation, regulation, or as otherwise
hours necessary to monitor your grant.
subject to such additional right-of-way necessary to protect public health or
Monitoring Category 1 through 4 fees
grants; safety or the environment.
are one-time fees and are not
(c) Retain ownership of the resources § 2805.16 If I hold a grant, what monitoring refundable. The work hours and fees for
of the land, including timber and fees must I pay? 2005 are as follows:
vegetative or mineral materials and any (a) Monitoring fees. You must pay a
other living or non-living resources. You fee to BLM for the reasonable costs the

2005 MONITORING FEE SCHEDULE


Monitoring fee as of June 21,
2005. To be adjusted annually
Monitoring category Federal work hours involved for changes in the IPD–GDP.
See paragraph (b) of this section
for update information

(1) Applications for new grants, assignments, renewals, and amend- Estimated Federal work hours are $97.
ments to existing grants. > 1 ≤ 8.
(2) Applications for new grants, assignments, renewals, and amend- Estimated Federal work hours are $343.
ments to existing grants. > 8 ≤ 24.
(3) Applications for new grants, assignments, renewals, and amend- Estimated Federal work hours are $644.
ments to existing grants. > 24 ≤ 36.
(4) Applications for new grants, assignments, renewals, and amend- Estimated Federal work hours > 36 $923.
ments to existing grants. ≤ 50.
(5) Master Agreements ............................................................................. Varies ............................................. As specified in the Agreement.
(6) Applications for new grants, assignments, renewals, and amend- Estimated Federal work hours are Full reasonable costs.
ments to existing grants. > 50.

(b) Updating the schedule. BLM will BLM has underestimated the monitoring existing statutory authority, upon
revise paragraph (a) of this section costs, we will notify you of the shortfall. request, BLM will conduct an informal
annually to update Category 1 through If your payments exceed the reasonable hearing before a proposed rent increase
4 monitoring fees in the manner costs that Federal employees incurred becomes effective. This applies to rent
described at § 2804.14(c) of this part. for monitoring, BLM will either increases due to a BLM-initiated change
BLM will update Category 5 monitoring reimburse you the difference, or adjust in the rent or from initially being put on
fees as specified in the Master the next billing to reflect the a rent schedule. You are not entitled to
Agreement. The monitoring cost overpayment. Unless BLM gives you a hearing on annual adjustments once
schedule is available from any BLM written authorization, you may not you are on a rent schedule.
state or field office or by writing: offset or deduct the overpayment from
Director, Bureau of Land Management, your payments. § 2806.11 How will BLM charge me rent?
1849 C St., NW., Mail Stop 1000LS, (d) Monitoring Categories 1–4 and 6. (a) BLM will charge rent beginning on
Washington, DC 20240. BLM also posts If you disagree with the category BLM the first day of the month following the
the current schedule on the BLM has determined for your grant, you may effective date of the grant through the
Homepage on the Internet at http:// appeal the decision under § 2801.10 of last day of the month when the grant
www.blm.gov. this part. terminates. Example: If a grant became
effective on January 10 and terminated
§ 2805.17 When do I pay monitoring fees? Subpart 2806—Rents on September 16, the rental period
(a) Monitoring Categories 1 through 4. would be February 1 through September
General Provisions
Unless BLM otherwise directs, you must 30, or 8 months.
pay monitoring fees when you submit to § 2806.10 What rent must I pay for my (b) BLM will set or adjust the annual
BLM your written acceptance of the grant? billing periods to coincide with the
terms and conditions of the grant. (a) You must pay in advance a rent calendar year by prorating the rent
(b) Monitoring Category 5. You must BLM establishes based on sound based on 12 months.
pay monitoring fees as specified in the business management principles and, as (c) If you disagree with the rent that
Master Agreement. BLM will not issue far as practical and feasible, using BLM charges, you may appeal the
your grant until it receives the required comparable commercial practices. Rent decision under § 2801.10 of this part.
payment. does not include processing or
(c) Monitoring Category 6. BLM may monitoring fees and rent is not offset by § 2806.12 When do I pay rent?
periodically estimate the costs of such fees. BLM may exempt, waive, or (a) You must pay rent for the initial
monitoring your use of the grant. BLM reduce rent for a grant under §§ 2806.14 rental period before BLM issues you a
will include this fee in the costs and 2806.15 of this subpart. grant.
associated with processing fees (b) If BLM issued your grant on or (b) You make all other rental
described at § 2804.14 of this part. If before October 21, 1976, under then payments for linear rights-of-way

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according to the payment plan (1) Using the facility, system, space, receiving compensation for this
described in § 2806.23 of this subpart. or any part of the right-of-way area for authorization. This paragraph does not
(c) After the first rental payment, all commercial purposes; or apply to oil and gas leases issued under
rent is due on January 1 of the first year (2) A municipal utility or cooperative part 3100 of this chapter; or
of each succeeding rental period for the whose principal source of revenue is (4) Your grant involves a cost share
term of your grant. customer charges; road or a reciprocal right-of-way
(c) You have been granted an agreement not subject to subpart 2812 of
§ 2806.13 What happens if I pay the rent
late?
exemption under a statute providing for this chapter. In these cases, BLM will
such; or determine the rent based on the
(a) If BLM does not receive the rent (d) Electric or telephone facilities
payment within 15 calendar days after proportion of use.
constructed on the right-of-way were (c) The BLM State Director may waive
the rent was due under § 2806.12 of this financed in whole or in part, or eligible
subpart, BLM will charge you a late or reduce your rent payment if the BLM
for financing, under the Rural State Director determines that paying
payment fee of $25.00 or 10 percent of Electrification Act of 1936, as amended
the rent you owe, whichever is greater, the full rent will cause you undue
(REA) (7 U.S.C. 901 et seq.), or are hardship and it is in the public interest
not to exceed $500 per authorization.
extensions of such facilities. You do not to waive or reduce your rent. In your
(b) If BLM does not receive your rent
payment and late payment fee within 30 need to have sought financing from the request for a waiver or rental reduction
calendar days after rent was due, BLM Rural Utilities Service to qualify for this you must include a suggested
may collect other administrative fees exemption. BLM may require you to alternative rental payment plan or
provided by statute. document the facility’s eligibility for timeframe within which you anticipate
(c) If BLM does not receive your rent, REA financing. For communication site resuming full rental payments. BLM
late payment fee, and any facilities, adding or including non- may also require you to submit specific
administrative fees within 90 calendar eligible facilities as, for example, by financial and technical data or other
days after the rent was due, BLM may tenants or customers, on the right-of- information that corrects or modifies the
terminate your grant under § 2807.17 of way will subject the holder to rent in statement of financial capability
this part and you may not remove any accordance with §§ 2806.30 through required by § 2804.12(a)(5) of this part.
facility or equipment without BLM’s 2806.44 of this subpart.
written permission (see § 2807.19 of this § 2806.16 When must I make estimated
§ 2806.15 Under what circumstances may rent payments to BLM?
part). The rent due, late payment fees, BLM waive or reduce my rent?
and any administrative fees remain a To expedite the processing of your
(a) BLM may waive or reduce your
debt that you owe to the United States. grant application, BLM may estimate
rent payment, even to zero in
(d) If you pay the rent, late payment rent payments and collect that amount
appropriate circumstances. BLM may
fee, and any administrative fees after before it issues the grant. The amount
require you to submit information to
BLM has terminated the grant, BLM may change once BLM determines the
support a finding that your grant
does not automatically reinstate the actual rent of the right-of-way. BLM will
qualifies for a waiver or a reduction of
grant. You must file a new application credit any rental overpayment, and you
rent.
with BLM. BLM will consider the are liable for any underpayment. This
(b) BLM may waive or reduce your
history of your failure to timely pay rent section does not apply to rent payments
rent if you show BLM that:
in deciding whether to issue you a new made under a rent schedule in this part.
(1) You are a non-profit organization,
grant. corporation, or association which is not Linear Rights-of-Way
(e) You may appeal any adverse
controlled by, or is not a subsidiary of,
decision BLM takes against your grant § 2806.20 What is the rent for a linear
a profit making corporation or business
under § 2801.10 of this part. right-of-way?
enterprise and the facility or project will
§ 2806.14 Under what circumstances am I provide a benefit or special service to (a) Except as noted in paragraph (c) of
exempt from paying rent? the general public or to a program of the this section, BLM will use the Per Acre
You do not have to pay rent for your Secretary; Rent Schedule found at paragraph (b) of
use if: (2) You provide without charge, or at this section to calculate rent for linear
(a) BLM issues the grant under a reduced rates, a valuable benefit to the rights-of-way. The Per Acre Rent
statute which does not allow BLM to public at large or to the programs of the Schedule is updated annually in
charge rent; Secretary of the Interior; accordance with § 2806.21 of this
(b) You are a Federal, state, or local (3) You hold a valid Federal subpart.
government or its agent or authorization in connection with your (b) The Per Acre Rent Schedule for
instrumentality, unless you are: grant and the United States is already calendar year 2005 is as follows:

2005 PER ACRE RENT SCHEDULE


Per acre rent for electric
Per acre rent for oil and transmission and
gas and other energy re- distributionlines, tele-
lated pipeline, and all phone lines, non-related
roads, ditches, and ca- pipelines, and other lin-
County zone number and per acre zone price nals. To be adjusted an- ear rights-of-way. To be
nually for changes in the adjusted annually for
IPD–GDP. See changes in the IPD–
§ 2806.21 for update in- GDP. See § 2806.21 for
formation update information

Zone 1 $50 ............................................................................................................................ $3.89 $3.40


Zone 2 $100 .......................................................................................................................... 7.76 6.79
Zone 3 $200 .......................................................................................................................... 15.58 13.61

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2005 PER ACRE RENT SCHEDULE—Continued


Per acre rent for electric
Per acre rent for oil and transmission and
gas and other energy re- distributionlines, tele-
lated pipeline, and all phone lines, non-related
roads, ditches, and ca- pipelines, and other lin-
County zone number and per acre zone price nals. To be adjusted an- ear rights-of-way. To be
nually for changes in the adjusted annually for
IPD–GDP. See changes in the IPD–
§ 2806.21 for update in- GDP. See § 2806.21 for
formation update information

Zone 4 $300 .......................................................................................................................... 23.31 20.43


Zone 5 $400 .......................................................................................................................... 31.14 27.23
Zone 6 $500 .......................................................................................................................... 38.89 34.03
Zone 7 $600 .......................................................................................................................... 46.66 40.86
Zone 8 $1,000 ....................................................................................................................... 77.78 68.05

(c) BLM may use an alternate means (1) One-time payments. You may pay report, you may appeal the decision
to compute your rent if the rent in advance the required rent amount for under § 2801.10 of this part.
determined by comparable commercial the entire term of the grant.
practices or an appraisal would be 10 or (2) If you choose not to make a one- Communication Site Rights-of-Way
more times the rent from the schedule. time payment, you must pay according § 2806.30 What are the rents for
(d) Once you are on a rent schedule, to one of the following methods, as communication site rights-of-way?
BLM will not remove you from it unless: applicable:
(1) The BLM State Director decides to (i) Payments by individuals. If your (a) Rent schedule. (1) BLM uses the
remove you from the schedule under annual rent is $100 or less, you must rent schedule for communication uses
paragraph (c) of this section; or pay at 10-year intervals not to exceed found in paragraph (b) of this section to
(2) You file an application to amend the term of the grant. If your annual rent calculate the rent for communication
your grant. is greater than $100, you may pay site rights-of-way. The schedule is based
(e) You may obtain the current linear annually or at multi-year intervals that on nine population strata (the
right-of-way rent schedule from any you may choose. population served), as depicted in the
BLM state or field office or by writing: (ii) Payments by all others. You must most recent version of the Ranally Metro
Director, BLM, 1849 C St., NW., Mail pay rent at 10-year intervals not to Area Population Ranking, and the type
Stop 1000 LS, Washington, DC 20240. exceed the term of the grant. of communication use or uses for which
BLM also posts the most current rent
(b) BLM considers the first partial BLM normally grants communication
schedule on the BLM Homepage on the
calendar year in the rent payment site rights-of-way. These uses are listed
Internet at http://www.blm.gov.
period to be the first year of the rental as part of the definition of
§ 2806.21 When and how does the linear payment term. BLM prorates the first ‘‘communication use rent schedule,’’ set
rent schedule change? year rental amount based on the number out at § 2801.5(b) of this part. You may
BLM will revise § 2806.20(b) to of months left in the calendar year after obtain a copy of the current schedule
update the rent schedule each calendar the effective date of the grant. from any BLM state or field office or by
year based on the previous year’s (c) Perpetual grants. For linear grants writing: Director, BLM, 1849 C St., NW.,
change in the IPD–GDP, as measured issued in perpetuity, you must make a Mail Stop 1000 LS, Washington, DC
second quarter to second quarter. one-time rental payment before BLM 20240. BLM also posts the current
will issue the grant, except individuals communication use rent schedule on
§ 2806.22 How will BLM calculate my rent may choose to make rental payments as
for linear rights-of-way the schedule the BLM Home Page on the Internet at
provided in paragraph (a)(2)(i) of this http://www.blm.gov.
covers?
section. BLM determines the one-time
(a) BLM calculates your rent by payment as follows: (2) BLM will revise paragraph (b) of
multiplying the rent per acre for the (1) BLM will calculate rent for grants this section annually to update the
appropriate category of use and county issued in perpetuity by multiplying the schedule based on two sources: the U.S.
zone price from the current schedule by annual rent by 100; or Department of Labor Consumer Price
the number of acres in the right-of-way Index for All Urban Consumers, U.S.
(2) You may request from BLM a rent
area that fall in those categories and City Average (CPI–U), as of July of each
determination based on the prevailing
multiplying the result by the number of year (difference in CPI–U from July of
price established by general practice in
years in the rental period. one year to July of the following year),
the vicinity of the right-of-way. You
(b) If BLM has not previously used the
must: and the RMA population rankings.
rent schedule to calculate your rent, we
may do so after giving you reasonable (i) Prepare a report, at your expense, (3) BLM will limit the annual
written notice. that explains how you estimated the adjustment based on the Consumer
rent; Price Index to no more than 5 percent.
§ 2806.23 How must I make rental (ii) Complete it to Federal appraisal At least every 10 years BLM will review
payments for a linear grant? standards; and the rent schedule to ensure that the
(a) For linear grants, except those (iii) Submit it for consideration and schedule reflects fair market value.
issued in perpetuity, you must make approval by the BLM State Director with
either nonrefundable annual payments jurisdiction over the lands in the grant. (b) The annual rent schedule for
or a nonrefundable payment for more If the BLM State Director does not communication uses for calendar year
than 1 year, as follows: approve the rent estimated in your 2005 is as follows:

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COMMUNICATION USE RENT SCHEDULE ANNUAL FEES
[Calendar year 2005]
21072

VerDate jul<14>2003
Am/FM Broadcast Private mo- Other com-
Television Cable CMRS/facil- Cellular
Population radio broad- translator/ bile radio Microwave munication
broadcast television ity manager telephone
cast 1 LPTV/LPFM service uses

5,000,000 plus ................................................................. $55,861.13 $42,206.21 (2) (2) $14,896.30 $14,896.30 $12,413.59 $12,413.59 $93.10
2,500,000 to 4,999,999 ................................................... 37,240.76 26,068.54 (2) (2) 12,413.59 12,413.59 7,448.15 9,930.88 93.10
1,000,000 to 2,499,999 ................................................... 22,344.46 17,379.01 (2) (2) 9,930.88 9,930.88 7,448.15 8,689.51 93.10

15:35 Apr 21, 2005


500,000 to 999,999 ......................................................... 17,379.01 12,413.59 (2) (2) 6,206.79 7,448.15 4,965.43 6,827.47 93.10
300,000 to 499,999 ......................................................... 14,896.30 9,930.88 (2) (2) 4,965.43 6,206.79 3,103.39 3,103.39 93.10
100,000 to 299,999 ......................................................... 7,448.15 4,965.43 2,979.25 2,979.25 3,724.08 4,965.43 2,482.72 2,482.72 93.10
50,000 to 99,999 ............................................................. 3,724.08 2,482.72 1,489.63 1,489.63 1,489.63 3,724.08 1,241.36 1,862.03 93.10

Jkt 205001
25,000 to 49,999 ............................................................. 1,862.03 1,489.63 1,241.36 620.68 1,241.36 3,103.39 744.81 1,862.03 93.10
Less Than 25,000 ............................................................ 1,489.63 1,117.22 744.81 124.14 744.81 3,103.39 434.47 1,862.03 93.10
1 Rent for AM Radio is 70% of the FM Scheduled Rent.
2 Fee to be determined by appraisal or other methods.

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(c) Uses not covered by the schedule. customers in your facility or facilities uses), and calculate their rent as
The communication use rent schedule and the category of use for each tenant described in § 2806.30 of this subpart.
does not apply to: or customer as of September 30 of the (2) For purposes of rent calculation,
(1) Communication site uses, same year. BLM may require you to all uses within the same facility and/or
facilities, and devices located entirely submit any additional information authorized under the same grant or lease
within the exterior boundaries of an oil needed to calculate your rent. BLM will must serve the same population strata.
and gas lease, and directly supporting determine the rent based on the certified (3) For purposes of rent calculation,
the operations of the oil and gas lease statement provided. We require only BLM will not modify the population
(see parts 3160 through 3190 of this facility owners or facility managers to rankings published in the Rand McNally
chapter); hold a grant or lease (unless you are an Commercial Atlas and Marketing Guide
(2) Communication facilities and uses occupant in a federally-owned facility or the population of the community
ancillary to and authorized under a as described in § 2806.42 of this served.
linear grant, such as a railroad grant or subpart), and will charge you rent for
an oil and gas pipeline grant; your grant or lease based on the total § 2806.33 How will BLM calculate the rent
(3) Communication uses not listed on for a grant or lease authorizing a single use
number of communication uses within communication facility?
the schedule, such as telephone lines, the right-of-way and the type of uses
fiber optic cables, and new technologies; and population strata the facility or site BLM calculates the rent for a grant or
(4) Grants for which BLM determines serves. lease authorizing a single-use
the rent by competitive bidding; or communication facility from the
(5) Communication facilities and uses § 2806.32 How does BLM determine the communication use rent schedule (see
for which the BLM State Director population strata served? § 2806.30 of this subpart), based on your
concurs that: (a) BLM determines the population authorized single use and the
(i) The expected annual rent, as BLM strata served as follows: population strata it serves (see § 2806.32
estimates from market data, exceeds the (1) If the site or facility is within a of this subpart).
rent from the rent schedule by five designated RMA, BLM will use the § 2806.34 How will BLM calculate the rent
times; or population strata of the RMA; for a grant or lease authorizing a multiple-
(ii) The communication site serves a (2) If the site or facility is within a use communication facility?
population of one million or more and designated RMA, and it serves two or (a) Basic rule. BLM first determines
the expected annual rent for the more RMAs, BLM will use the the population strata the
communication use or uses is more than population strata of the RMA having the communication facility serves according
$10,000 above the rent from the rent greatest population; to § 2806.32 of this subpart and then
schedule. (3) If the site or facility is outside an calculates the rent assessed to facility
§ 2806.31 How will BLM calculate rent for RMA, and it serves one or more RMAs, owners and facility managers for a grant
a right-of-way for communication uses in BLM will use the population strata of or lease for a communication facility
the schedule? the RMA served having the greatest that authorizes subleasing with tenants,
(a) Basic rule. BLM calculates rents population; customers, or both, as follows:
for: (4) If the site or facility is outside an (1) Using the communication use rent
(1) Single-use facilities by applying RMA and the site does not serve an schedule. BLM will determine the rent
the rent from the communication use RMA, BLM will use the population of the highest value use in the facility
rent schedule (see § 2806.30 of this strata of the community it serves having or facilities as the base rent, and add to
subpart) for the type of use and the the greatest population, as identified in it 25 percent of the rent from the rent
population strata served; and the current edition of the Rand McNally schedule (see § 2806.30 of this subpart)
(2) Multiple-use facilities, whose Road Atlas; for each tenant use in the facility or
authorizations provide for subleasing, (5) If the site or facility is outside an facilities;
by setting the rent of the highest value RMA, and it serves a community of less (2) If the highest value use is not the
use in the facility or facilities as the base than 25,000, BLM will use the lowest use of the facility owner or facility
rent (taken from the rent schedule) and population strata shown on the rent manager, BLM will consider the owner’s
adding to it 25 percent of the rent from schedule. or manager’s use like any tenant or
the rent schedule for all tenant uses in (b)(1) BLM considers all facilities (and customer use in calculating the rent (see
the facility or facilities, if a tenant use all uses within the same facility) located § 2806.35(b) for facility owners and
is not used as the base rent (rent = base at one site to serve the same RMA or § 2806.39(a) for facility managers);
rent + 25 percent of all rent due to community. However, BLM may make (3) If a tenant use is the highest value
additional tenant uses in the facility or case-by-case exceptions in determining use, BLM will exclude the rent for that
facilities) (see also §§ 2806.32 and the population served at a particular site tenant’s use when calculating the
2806.34 of this subpart). by uses not located within the same additional 25 percent amount under
(b) Exclusions. When calculating rent, facility and not authorized under the paragraph (a)(1) of this section for
BLM will exclude customer uses, except same grant or lease. BLM has the sole tenant uses;
as provided for at §§ 2806.34(b)(4) and responsibility to make this (4) If a holder has multiple uses
2806.42 of this subpart. BLM will also determination. For example, when a site authorized under the same grant or
exclude those uses exempted from rent has a mix of high-power and low-power lease, such as a TV and a FM radio
by § 2806.14 of this subpart, and any uses that are authorized by separate station, BLM will calculate the rent as
uses whose rent has been waived or grants or leases, and only the high- in paragraph (a)(1) of this section. In
reduced to zero as described in power uses are capable of serving an this case, the TV rent would be the
§ 2806.15 of this subpart. RMA or community with the greatest highest value use and BLM would
(c) Annual statement. By October 15 population, BLM may separately charge the FM portion according to the
of each year, you, as a grant or lease determine the population strata served rent schedule as if it were a tenant use.
holder, must submit to BLM a certified by the low-power uses (if not collocated (b) Special applications. The
statement listing any tenants and in the same facility with the high-power following provisions apply when

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21074 Federal Register / Vol. 70, No. 77 / Friday, April 22, 2005 / Rules and Regulations

calculating rents for communication manager, BLM will consider the entity (see § 2806.31(c) of this subpart) must
uses exempted from rent under to be a customer and not include these include the television use because each
§ 2806.14 of this subpart or uses in the rent calculation for the facility is benefitting economically from
communication uses whose rent has facility; or having the television broadcast
been waived or reduced to zero under (b) The facility owner, BLM will equipment located there, even though
§ 2806.15 of this subpart: follow the provisions in § 2806.31 of the combined equipment is supporting
(1) BLM will exclude exempted uses this subpart to calculate rent for a lease only one single end use.
or uses whose rent has been waived or involving these uses. However, we
reduced to zero (see §§ 2806.14 and include the rent from the rent schedule § 2806.38 Can I combine multiple grants or
for a PMRS, internal microwave, or leases for facilities located on one site into
2806.15 of this subpart) of either a a single grant or lease?
facility owner or a facility manager in other use in the rental calculation only
calculating rents. BLM will exclude if the value of that use is equal to or If you hold authorizations for two or
similar uses (see §§ 2806.14 and 2806.15 greater than the value of any other use more facilities on the same site, you can
of this subpart) of a customer or tenant in the facility. BLM excludes these uses combine all those uses under one grant
if they choose to hold their own grant in the 25 percent calculation (see or lease, with BLM’s approval. The
or lease (see § 2806.36 of this subpart) § 2806.31(a) of this subpart) when their highest value use in all the combined
or are occupants in a Federal facility value does not exceed the highest value facilities determines the base rent. BLM
(see § 2806.42(a) of this subpart); in the facility. then charges for each remaining use in
(2) BLM will charge rent to a facility the combined facilities at 25 percent of
§ 2806.36 If I am a tenant or customer in the rent from the rent schedule. These
owner whose own use is either a facility, must I have my own grant or lease
exempted from rent or whose rent has uses include those uses we previously
and if so, how will this affect my rent?
been waived or reduced to zero (see calculated as base rents when BLM
(a) You may have your own authorized each of the facilities on an
§§ 2806.14 and 2806.15 of this subpart), authorization, but BLM does not require
but who has tenants in the facility, in an individual basis.
a separate grant or lease for tenants and
amount equal to the rent of the highest customers using a facility authorized by § 2806.39 How will BLM calculate rent for
value tenant use plus 25 percent of the a BLM grant or lease that contains a a lease for a facility manager’s use?
rent from the rent schedule for each of subleasing provision. BLM charges the (a) BLM will follow the provisions in
the remaining tenant uses subject to facility owner or facility manager rent § 2806.31 of this subpart to calculate
rent; based on the highest value use within rent for a lease involving a facility
(3) BLM will not charge rent to a the facility (including any tenant or manager’s use. However, we include the
facility owner, facility manager, or customer use authorized by a separate rent from the rent schedule for a facility
tenant (when holding a grant or lease) grant or lease) and 25 percent of the rent manager’s use in the rental calculation
when all of the following occur: from the rent schedule for each of the only if the value of that use is equal to
(i) BLM exempts from rent, waives, or other uses subject to rent (including any or greater than the value of any other
reduces to zero the rent for the holder’s tenant or customer use a separate grant use in the facility. BLM excludes the
use (see §§ 2806.14 and 2806.15 of this or lease authorizes and the facility facility manager’s use in the 25 percent
subpart); owner’s use if it is not the highest value calculation (see § 2806.31(a) of this
(ii) Rent from all other uses in the use). subpart) when its value does not exceed
facility is exempted, waived, or reduced (b) If you own a building, equipment the highest value in the facility.
to zero, or BLM considers such uses as shelter, or tower on public lands for (b) If you are a facility owner and you
customer uses; and communication purposes, you must terminate your use within the facility,
(iii) The holder is not operating the have an authorization under this part, but want to retain the lease for other
facility for commercial purposes (see even if you are also a tenant or customer purposes, BLM will continue to charge
§ 2801.5(b) of this part) with respect to in someone else’s facility. you for your authorized use until BLM
such other uses in the facility; and (c) BLM will charge tenants and amends the lease to change your use to
(4) If a holder, whose own use is customers who hold their own grant or facility manager or to some other
exempted from rent or whose rent has lease in a facility, as grant or lease communication use.
been waived or reduced to zero, is holders, the full annual rent for their
conducting a commercial activity with use based on the BLM communication § 2806.40 How will BLM calculate rent for
customers or tenants whose uses are use rent schedule. BLM will also a grant or lease for ancillary communication
also exempted from rent or whose rent uses associated with communication uses
include such tenant or customer use in
has been waived or reduced to zero (see on the rent schedule?
calculating the rent the facility owner or
§§ 2806.14 and 2806.15 of this subpart), facility manager must pay. If the ancillary communication
BLM will charge rent, notwithstanding equipment is used solely in direct
section 2806.31(b), based on the highest § 2806.37 How will BLM calculate rent for support of the primary use (see the
value use within the facility. This a grant or lease involving an entity with a definition of communication use rent
paragraph does not apply to facilities single use (holder or tenant) having schedule in § 2801.5 of this part), BLM
equipment or occupying space in multiple will calculate and charge rent only for
exempt from rent under § 2806.14(d) of BLM-authorized facilities to support that
this subpart except when the facility single use?
the primary use.
also includes non-eligible facilities. BLM will include the single use in § 2806.41 How will BLM calculate rent for
§ 2806.35 How will BLM calculate rent for calculating rent for each grant or lease communication facilities ancillary to a linear
private mobile radio service (PMRS), authorizing that use. For example, a grant or other use authorization?
internal microwave, and ‘‘other’’ category television station locates its antenna on When a communication facility is
uses? a tower authorized by grant or lease ‘‘A’’ ancillary to, and authorized by BLM
If an entity engaged in a PMRS, and locates its related broadcast under, a grant for a linear use, or some
internal microwave, or ‘‘other’’ use is: equipment in a building authorized by other type of use authorization (e.g., a
(a) Using space in a facility owned by grant or lease ‘‘B.’’ The statement listing mineral lease or sundry notice), BLM
either a facility owner or facility tenants and customers for each facility will determine the rent using the linear

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rent schedule (see § 2806.20 of this (b) BLM establishes the rent for each facility, but before you begin operating
subpart) or rent scheme associated with of the uses in the facility that are it, verifying that you have constructed
the other authorization, and not the covered by the rent schedule using and tested the facility to ensure that it
communication use rent schedule. §§ 2806.30 and 2806.31 of this subpart. complies with the terms of the grant and
(c) BLM determines the facility owner with applicable Federal and state laws
§ 2806.42 How will BLM calculate rent for or facility manager’s rent by identifying and regulations; or
a grant or lease authorizing a
the highest rent in the facility of those (e) When BLM requests it. You must
communication use within a federally-
owned communication facility? established under paragraphs (a) and (b) update information or confirm that
of this section, and adding to it 25 information you submitted before is
(a) If you are an occupant of a percent of the rent of all other uses
federally-owned communication accurate.
subject to rent.
facility, you must have your own grant § 2807.12 If I hold a grant, for what am I
or lease and pay rent in accordance with Other Rights-of-Way liable?
these regulations. (a) If you hold a grant, you are liable
§ 2806.50 How will BLM determine the rent
(b) If a Federal agency holds a grant to the United States and to third parties
for a grant when neither the linear rent
or lease and agrees to operate the facility schedule at § 2806.20 nor the for any damage or injury they incur in
as a facility owner under § 2806.31 of communication use rent schedule at connection with your use and
this subpart, occupants do not need a § 2806.30 applies? occupancy of the right-of-way.
separate BLM grant or lease and BLM When neither the linear nor the (b) You are strictly liable for any
will calculate and charge rent to the communication use rent schedule is activity or facility associated with your
Federal facility owner under §§ 2806.30 appropriate, BLM determines your rent right-of-way area which BLM
through 2806.44 of this subpart. through a process based on comparable determines presents a foreseeable
§ 2806.43 How does BLM calculate rent for commercial practices, appraisals, hazard or risk of damage or injury to the
passive reflectors and local exchange competitive bid, or other reasonable United States. BLM will specify in the
networks? methods. BLM will notify you in writing grant any activity or facility posing such
(a) BLM calculates rent for passive of the rent determination. If you hazard or risk, and the financial
reflectors and local exchange networks disagree with the rent determination, limitations on damages commensurate
by using the same rent schedules for you may appeal BLM’s final with such hazard or risk.
passive reflectors and local exchange determination under § 2801.10 of this (1) BLM will not impose strict
networks as the Forest Service uses for part. liability for damage or injury resulting
the region in which the facilities are primarily from an act of war, an act of
Subpart 2807—Grant Administration God, or the negligence of the United
located. You may obtain the pertinent
and Operation States, except as otherwise provided by
schedules from the Forest Service or
from any BLM state or field office in the § 2807.10 When can I start activities under law.
region in question. For passive reflectors my grant? (2) As used in this section, strict
and local exchange networks not When you can start depends on the liability extends to costs incurred by the
covered by a Forest Service regional terms of your grant. You can start Federal government to control or abate
schedule, BLM uses the provisions in activities when you receive the grant conditions, such as fire or oil spills,
§ 2806.50 of this subpart to determine you and BLM signed, unless the grant which threaten life, property, or the
rent. See Forest Service regulations at 36 includes a requirement for BLM to environment, even if the threat occurs to
CFR chapter II. provide a written Notice to Proceed. If areas that are not under Federal
(b) For the purposes of this subpart, your grant contains a Notice to Proceed jurisdiction. This liability is separate
the term: requirement, you may not initiate and apart from liability under other
(1) Passive reflector includes various construction, operation, maintenance, or provisions of law.
types of nonpowered reflector devices termination until BLM issues you a (3) You are strictly liable to the
used to bend or ricochet electronic Notice to Proceed. United States for damage or injury up to
signals between active relay stations or $2 million for any one incident. BLM
between an active relay station and a § 2807.11 When must I contact BLM during will update this amount annually to
terminal. A passive reflector commonly operations?
adjust for changes in the Consumer
serves a microwave communication You must contact BLM: Price Index for All Urban Consumers,
system. The reflector requires point-to- (a) At the times specified in your U.S. City Average (CPI–U) as of July of
point line-of-sight with the connecting grant; each year (difference in CPI–U from July
relay stations, but does not require (b) When your use requires a
of one year to July of the following
electric power; and substantial deviation from the grant.
year), rounded to the nearest $1,000.
(2) Local exchange network means You must obtain BLM’s approval before
This financial limitation does not apply
radio service which provides basic you begin any activity that is a
to the release or discharge of hazardous
telephone service, primarily to rural substantial deviation;
substances on or near the grant, or
communities. (c) When there is a change affecting
where liability is otherwise not subject
your application or grant, including, but
to this financial limitation under
§ 2806.44 How will BLM calculate rent for not limited to, changes in:
a facility owner’s or facility manager’s grant (1) Mailing address; applicable law.
or lease which authorizes communication (2) Partners; (4) BLM will determine your liability
uses subject to the communication use rent (3) Financial conditions; or for any amount in excess of the $2
schedule and communication uses whose (4) Business or corporate status; million strict liability limitation (as
rent BLM determines by other means? (d) When you submit a certification of adjusted) through the ordinary rules of
(a) BLM establishes the rent for each construction, if the terms of your grant negligence.
of the uses in the facility that are not require it. A certification of construction (5) The rules of subrogation apply in
covered by the communication use rent is a document you submit to BLM after cases where a third party caused the
schedule using § 2806.50 of this subpart. you have finished constructing a damage or injury.

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(c) If you cannot satisfy claims for The notice will contain a time period your agent at your address a written
injury or damage, all owners of any within which you must respond. The suspension order explaining the reasons
interests in, and all affiliates or notice may also notify you of additional for it.
subsidiaries of any holder of, a grant, opportunities to comment. (c) You may file a written request for
except for corporate stockholders, are permission to resume activities at any
§ 2807.15 How is grant administration
jointly and severally liable to the United time after BLM issues the order. In the
affected if the land my grant encumbers is
States. transferred to another Federal agency or request, give the facts supporting your
(d) If BLM issues a grant to more than out of Federal ownership? request and the reasons you believe that
one person, each is jointly and severally (a) If there is a proposal to transfer the BLM should lift the order. BLM must
liable. land your grant encumbers to another grant or deny your request within 5
(e) By accepting the grant, you agree business days after receiving it. If BLM
Federal agency, BLM may, after
to fully indemnify or hold the United does not respond within 5 business
reasonable notice to you, transfer
States harmless for liability, damage, or days, BLM has denied your request. You
administration of your grant for the
claims arising in connection with your may appeal the denial under § 2801.10
lands BLM formerly administered to
use and occupancy of the right-of-way another Federal agency, unless doing so of this part.
area. would diminish your rights. If BLM (d) The immediate temporary
(f) We address liability of state, tribal, suspension order is effective until you
determines your rights would be
and local governments in § 2807.13 of receive BLM’s written notice to proceed
diminished by such a transfer, BLM can
this subpart. with your activities.
(g) The provisions of this section do still transfer the land, but retain
not limit or exclude other remedies. administration of your grant under § 2807.17 Under what conditions may BLM
existing terms and conditions. suspend or terminate my grant?
§ 2807.13 As grant holders, what liabilities (b) If there is a proposal to transfer the
(a) BLM may suspend or terminate
do state, tribal, and local governments land your grant encumbers out of
your grant if you do not comply with
have? Federal ownership, BLM may, after
applicable laws and regulations or any
(a) If you are a state, tribal, or local reasonable notice to you and in
terms, conditions, or stipulations of the
government or its agency or conformance with existing policies and
grant (such as rent payments), or if you
instrumentality, you are liable to the procedures:
(1) Transfer the land subject to your abandon the right-of-way.
fullest extent law allows at the time that (b) A grant also terminates when:
BLM issues your grant. If you do not grant. In this case, administration of
your grant for the lands BLM formerly (1) The grant contains a term or
have the legal power to assume full condition that has been met that
liability, you must repair damages or administered is transferred to the new
owner of the land; requires the grant to terminate;
make restitution to the fullest extent of (2) BLM consents in writing to your
your powers. (2) Transfer the land, but BLM retains
administration of your grant; or request to terminate the grant; or
(b) BLM may require you to provide (3) It is required by law to terminate.
a bond, insurance, or other acceptable (3) Reserve to the United States the
land your grant encumbers, and BLM (c) Your failure to use your right-of-
security to: way for its authorized purpose for any
(1) Protect the liability exposure of the retains administration of your grant.
(c) BLM or, if BLM no longer continuous 5-year period creates a
United States to claims by third parties
administers the land, the new land presumption of abandonment. BLM will
arising out of your use and occupancy
owner may negotiate new grant terms notify you in writing of this
of the right-of-way;
(2) Cover any losses, damages, or and conditions with you. This may presumption. You may rebut the
injury to human health, the include increasing the term of your presumption of abandonment by
environment, and property incurred in grant, should you request it, to a proving that you used the right-of-way
connection with your use and perpetual grant under § 2806.23(c) of or that your failure to use the right-of-
occupancy of the right-of-way; and this part or providing for an easement. way was due to circumstances beyond
(3) Cover any damages or injuries your control, such as acts of God, war,
§ 2807.16 Under what conditions may BLM or casualties not attributable to you.
resulting from the release or discharge order an immediate temporary suspension
of hazardous materials incurred in (d) You may appeal a decision under
of my activities? this section under § 2801.10 of this part.
connection with your use and (a) If BLM determines that you have
occupancy of the right-of-way. violated one or more of the terms, § 2807.18 How will I know that BLM
(c) Based on your record of conditions, or stipulations of your grant, intends to suspend or terminate my grant?
compliance and changes in risk and we can order an immediate temporary (a) Before BLM suspends or
conditions, BLM may require you to suspension of activities within the right- terminates your grant under § 2807.17(a)
increase or decrease the amount of your of-way area to protect public health or of this subpart, it will send you a
bond, insurance, or security. safety or the environment. BLM can written notice stating that it intends to
(d) The provisions of this section do suspend or terminate your grant and
require you to stop your activities before
not limit or exclude other remedies. giving the grounds for such action. The
holding an administrative proceeding
§ 2807.14 How will BLM notify me if on the matter. notice will give you a reasonable
someone else wants a grant for land (b) BLM may issue the immediate opportunity to correct any
subject to my grant or near or adjacent to temporary suspension order orally or in noncompliance or start or resume use of
it? writing to you, your contractor or the right-of-way, as appropriate.
BLM will notify you in writing when subcontractor, or to any representative, (b) To suspend or terminate a grant
it receives a grant application for land agent, or employee representing you or issued as an easement, BLM must give
subject to your grant or near or adjacent conducting the activity. When you you written notice and refer the matter
to it. BLM will consider your written receive the order, you must stop the to the Office of Hearings and Appeals
recommendations as to how the activity immediately. BLM will, as soon for a hearing before an ALJ under 5
proposed use affects the integrity of, or as practical, confirm an oral order by U.S.C. 554. No hearing is required if the
your ability to operate, your facilities. sending or hand delivering to you or grant provided by its terms for

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termination on the occurrence of a fixed (2) Alternatively, BLM may keep the grant at least 120 calendar days before
or agreed upon condition, event, or old grant in effect and issue a new grant your grant expires. BLM will renew the
time. If the ALJ determines that grounds for the new use or location, or terms and grant if you are complying with the
for suspension or termination exist and conditions. terms, conditions, and stipulations of
such action is justified, BLM will (e) You must apply for a new grant to the grant and applicable laws and
suspend or terminate the grant. allow realignment of your railroad and regulations.
appurtenant communication facilities. (b) If your grant does not address
§ 2807.19 When my grant terminates, what BLM must issue a decision within 6
happens to any facilities on it?
whether it is renewable, you may apply
months after it receives your complete to BLM to renew the grant. You must
(a) After your grant terminates, you application. BLM may include the same send BLM your application at least 120
must remove any facilities within the terms and conditions in the new grant calendar days before your grant expires.
right-of-way within a reasonable time, as were in the original grant as to annual In your application you must show that
as determined by BLM, unless BLM rent, duration, and nature of interest if: you are complying with the terms,
instructs you otherwise in writing, or (1) These terms are in the public conditions, and stipulations of the grant
termination is due to non-payment of interest; and applicable laws and regulations.
rent (see § 2806.13(c) of this part). (2) The lands are of approximately BLM has the discretion to renew the
(b) After removing the facilities, you equal value; and grant if doing so is in the public interest.
must remediate and restore the right-of- (3) The lands involved are not within (c) Submit your application under
way area to a condition satisfactory to an incorporated community. paragraph (a) or (b) of this section and
BLM, including the removal and clean
§ 2807.21 May I assign my grant? include the same information necessary
up of any hazardous materials.
for a new application (see subpart 2804
(c) If you do not remove all facilities (a) With BLM’s approval, you may
of this part). You must reimburse BLM
within a reasonable period as assign, in whole or in part, any right or
in advance for the administrative costs
determined by BLM, BLM may declare interest in a grant.
(b) In order to assign a grant, the of processing the renewal in accordance
them to be the property of the United
proposed assignee must file an with § 2804.14 of this part.
States. However, you are still liable for
the costs of removing them and for application and satisfy the same (d) BLM will review your application
remediating and restoring the right-of- procedures and standards as for a new and determine the applicable terms and
way area. grant, including paying processing fees conditions of any renewed grant.
(see subpart 2804 of this part). (e) BLM will not renew grants issued
§ 2807.20 When must I amend my (c) The assignment application must before October 21, 1976. If you hold
application, seek an amendment of my also include: such a grant and would like to continue
grant, or obtain a new grant? to use the right-of-way beyond your
(1) Documentation that the assignor
(a) You must amend your application agrees to the assignment; and grant’s expiration date, you must apply
or seek an amendment of your grant (2) A signed statement that the to BLM for a new FLPMA grant (see
when there is a proposed substantial proposed assignee agrees to comply subpart 2804 of this part). You must
deviation in location or use. with and be bound by the terms and send BLM your application at least 120
(b) The requirements to amend an conditions of the grant that is being calendar days before your grant expires.
application or grant are the same as assigned and all applicable laws and (f) If BLM denies your application,
those for a new application, including regulations. you may appeal the decision under
paying processing and monitoring fees (d) BLM will not recognize an § 2801.10 of this part.
and rent according to §§ 2804.14, assignment until it approves it in
2805.16, and 2806.10 of this part. writing. BLM will approve the Subpart 2808—Trespass
(c) Any activity not authorized by assignment if doing so is in the public § 2808.10 What is trespass?
your grant may subject you to interest. BLM may modify the grant or
prosecution under applicable law and to add bonding and other requirements, (a) Trespass is using, occupying, or
trespass charges under subpart 2808 of including additional terms and developing the public lands or their
this part. conditions, to the grant when approving resources without a required
(d) If your grant was issued prior to the assignment. BLM may decrease rents authorization or in a way that is beyond
October 21, 1976, and there is a if the new holder qualifies for an the scope and terms and conditions of
proposed substantial deviation in the exemption (see § 2806.14 of this part), or your authorization. Trespass is a
location or use or terms and conditions waiver or reduction (see § 2806.15 of prohibited act.
of your right-of-way grant, you must this part) and the previous holder did (b) Trespass includes acts or
apply for a new grant consistent with not. Similarly, BLM may increase rents omissions causing unnecessary or
the remainder of this section. BLM may if the previous holder qualified for an undue degradation to the public lands
respond to your request in one of the exemption or waiver or reduction and or their resources. In determining
following ways: the new holder does not. If BLM whether such degradation is occurring,
(1) If BLM approves your application, approves the assignment, the benefits BLM may consider the effects of the
BLM will terminate your old grant and and liabilities of the grant apply to the activity on resources and land uses
you will receive a new grant under 43 new grant holder. outside the area of the activity.
U.S.C. 1761 et seq. and the regulations (e) The processing time and (c) There are two kinds of trespass,
in this part. BLM may include the same conditions described at § 2804.25(c) of willful and non-willful.
terms and conditions in the new grant this part apply to assignment (1) Willful trespass is voluntary or
as were in the original grant as to annual applications. conscious trespass and includes trespass
rent, duration, and nature of interest if committed with criminal or malicious
BLM determines, based on current land § 2807.22 How do I renew my grant? intent. It includes a consistent pattern of
use plans and other management (a) If your grant specifies that it is actions taken with knowledge, even if
decisions, that it is in the public interest renewable, and you choose to renew it, those actions are taken in the belief that
to do so; or you must apply to BLM to renew the the conduct is reasonable or legal.

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(2) Non-willful trespass is trespass will not process any of your notified of such trespass in writing and
committed by mistake or inadvertence. applications for any activities on BLM shall be liable to the United States for
lands. all costs and payments determined in
§ 2808.11 What will BLM do if it determines (f) You may appeal a trespass decision the same manner as set forth in subpart
that I am in trespass?
under § 2801.10 of this part. 2808 of this chapter.
(a) BLM will notify you in writing of (g) Nothing in this section limits your ■ 4. Revise part 2880 to read as follows:
the trespass and explain your liability. liability under any other Federal or state
Your liability includes: law. PART 2880—RIGHTS-OF-WAY UNDER
(1) Reimbursing the United States for THE MINERAL LEASING ACT
all costs incurred in investigating and § 2808.12 May I receive a grant if I am or
terminating the trespass; have been in trespass? Subpart 2881—General Information
(2) Paying the rental for the lands, as Until you satisfy your liability for a Sec.
provided for in subpart 2806 of this trespass, BLM will not process any 2881.2 What is the objective of BLM’s right-
part, for the current and past years of applications you have pending for any of-way program?
trespass, or, where applicable, the activity on BLM-administered lands. A 2881.5 What acronyms and terms are used
cumulative value of the current use fee, in the regulations in this part?
history of trespass will not necessarily 2881.7 Scope.
amortization fee, and maintenance fee disqualify you from receiving a grant. In 2881.9 Severability.
for unauthorized use of any BLM- order to correct a trespass, you must 2881.10 How do I appeal a BLM decision
administered road; and apply under the procedures described at issued under the regulations in this part?
(3) Rehabilitating and restoring any subpart 2804 of this part. BLM will 2881.11 When do I need a grant from BLM
damaged lands or resources. If you do process your application as if it were a for an oil and gas pipeline?
not rehabilitate and restore the lands new use. Prior unauthorized use does 2881.12 When do I need a TUP for an oil
and resources within the time set by and gas pipeline?
not create a preference for receiving a
BLM in the notice, you will be liable for grant. Subpart 2882—Lands Available for MLA
the costs the United States incurs in Grants and TUPs
rehabilitating and restoring the lands Subpart 2809—Grants for Federal 2882.10 What lands are available for grants
and resources. Agencies or TUPs?
(b) In addition to amounts you owe
§ 2809.10 Do the regulations in this part Subpart 2883—Qualifications for Holding
under paragraph (a) of this section, BLM MLA Grants and TUPs
apply to Federal agencies?
may assess penalties as follows:
The regulations in this part apply to 2883.10 Who may hold a grant or TUP?
(1) For willful or repeated non-willful
Federal agencies to the extent possible, 2883.11 Who may not hold a grant or TUP?
trespass, the penalty is two times the 2883.12 How do I prove I am qualified to
rent. For roads, the penalty is two times except that:
hold a grant or TUP?
the charges for road use, amortization, (a) BLM may suspend or terminate a 2883.13 What happens if BLM issues me a
and maintenance which have accrued Federal agency’s grant only if: grant or TUP and later determines that I
since the trespass began. (1) The terms and conditions of the am not qualified to hold it?
(2) For non-willful trespass not Federal agency’s grant allow it; or 2883.14 What happens to my application,
resolved within 30 calendar days after (2) The agency head holding the grant grant, or TUP if I die?
receiving the written notice under consents to it; and Subpart 2884—Applying For MLA Grants or
paragraph (a) of this section, the penalty (b) Federal agencies are generally not TUPs
is an amount equal to the rent. To required to pay rent for a grant (see
2884.10 What should I do before I file my
resolve the trespass you must meet one § 2806.14 of this part). application?
of the conditions identified in 43 CFR 2884.11 What information must I submit in
PART 2810—TRAMROADS AND my application?
9239.7–1. For roads, the penalty is an
LOGGING ROADS 2884.12 What is the processing fee for a
amount equal to the charges for road
use, amortization, and maintenance grant or TUP application?
■ 2. Revise the authority citation for part 2884.13 Who is exempt from paying
which have accrued since the trespass 2810 to read as follows: processing and monitoring fees?
began. 2884.14 When does BLM reevaluate the
(c) The penalty will not be less than Authority: 43 U.S.C. 1181e, 1732, 1733,
and 1740. processing and monitoring fees?
the fee for a Processing Category 2 2884.15 What is a Master Agreement
application (see § 2804.14 of this part) ■ 3. Revise § 2812.1–3 to read as follows: (Processing Category 5) and what
for non-willful trespass or less than information must I provide to BLM when
three times this amount for willful or § 2812.1–3 Unauthorized use, occupancy, I request one?
repeated non-willful trespass. You must or development. 2884.16 What provisions do Master
pay whichever is the higher of: Any use, occupancy, or development Agreements contain and what are their
of the Revested Oregon and California limitations?
(1) The amount computed in 2884.17 How will BLM process my
paragraph (b) of this section; or Railroad and Reconveyed Coos Bay Processing Category 6 application?
(2) The minimum penalty amount in Wagon Road Grant Lands (O&C) lands 2884.18 What if there are two or more
paragraph (c) of this section. (as is defined in 43 CFR 2812.0–5(e)), competing applications for the same
(d) In addition to civil penalties under for tramroads without an authorization pipeline?
paragraph (b) of this section, you may be pursuant to this subpart, or which is 2884.19 Where do I file my application for
tried before a United States magistrate beyond the scope and specific a grant or TUP?
judge and fined no more than $1,000 or limitations of such an authorization, or 2884.20 What are the public notification
imprisoned for no more than 12 months, that cause unnecessary or undue requirements for my application?
2884.21 How will BLM process my
or both, for a knowing and willful degradation, is prohibited and shall application?
trespass, as provided at 43 CFR 9262.1 constitute a trespass as defined in 2884.22 Can BLM ask me for additional
and 43 U.S.C. 1733(a). § 2808.10 of this chapter. Anyone information?
(e) Until you comply with the determined by the authorized officer to 2884.23 Under what circumstances may
requirements of 43 CFR 9239.7–1, BLM be in violation of this section shall be BLM deny my application?

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2884.24 What fees do I owe if BLM denies Subpart 2887—Amending, Assigning, or Casual use means activities ordinarily
my application or if I withdraw my Renewing MLA Grants and TUPs resulting in no or negligible disturbance
application? 2887.10 When must I amend my of the public lands, resources, or
2884.25 What activities may I conduct on application, seek an amendment of my improvements. Examples of casual use
BLM lands covered by my application grant or TUP, or obtain a new grant or include: Surveying, marking routes, and
for a grant or TUP while BLM is TUP? collecting data to prepare applications
processing my application? 2887.11 May I assign my grant or TUP?
2884.26 When will BLM issue the grant or
for grants or TUPs.
2887.12 How do I renew my grant?
TUP when the lands are managed by two
Facility means an improvement or
or more Federal agencies? Subpart 2888—Trespass structure, whether existing or planned,
2884.27 What additional requirement is 2888.10 What is trespass? that is, or would be, owned and
necessary for grants or TUPs for 2888.11 May I receive a grant if I am or controlled by the grant or TUP holder
pipelines 24 or more inches in diameter? have been in trespass? within the right-of-way or TUP area.
Authority: 30 U.S.C. 185 and 189. Federal lands means all lands owned
Subpart 2885—Terms and Conditions of by the United States, except lands:
MLA Grants and TUPs
Subpart 2881—General Information (1) In the National Park System;
2885.10 When is a grant or TUP effective? (2) Held in trust for an Indian or
2885.11 What terms and conditions must I § 2881.2 What is the objective of BLM’s Indian tribe; or
comply with? right-of-way program? (3) On the Outer Continental Shelf.
2885.12 What rights does a grant or TUP It is BLM’s objective to grant rights-of- Grant means any authorization or
convey? way under the regulations in this part to instrument BLM issues under section 28
2885.13 What rights does the United States of the Mineral Leasing Act, 30 U.S.C.
any qualified individual, business, or
retain?
government entity and to direct and 185, authorizing a nonpossessory,
2885.14 What happens if I need a right-of-
way wider than 50 feet plus the ground control the use of rights-of-way on nonexclusive right to use Federal lands
occupied by the pipeline and related public lands in a manner that: to construct, operate, maintain, or
facilities? (a) Protects the natural resources terminate a pipeline. The term includes
2885.15 How will BLM charge me rent? associated with Federal lands and those authorizations and instruments
2885.16 When do I pay rent? adjacent lands, whether private or BLM and its predecessors issued for like
2885.17 What happens if I pay the rent late? administered by a government entity; purposes before November 16, 1973,
2885.18 When must I make estimated rent (b) Prevents unnecessary or undue under then existing statutory authority.
payments to BLM? degradation to public lands; It does not include authorizations
2885.19 What is the rent for a linear right- (c) Promotes the use of rights-of-way issued under FLPMA (43 U.S.C. 1761 et
of-way? in common considering engineering and seq.).
2885.20 How will BLM calculate my rent technological compatibility, national Monitoring means those actions,
for linear rights-of-way the schedule security, and land use plans; and subject to § 2886.11 of this part, that the
covers? (d) Coordinates, to the fullest extent Federal government performs to ensure
2885.21 How must I make rent payments
possible, all BLM actions under the compliance with the terms, conditions,
for my grant or TUP?
regulations in this part with state and and stipulations of a grant or TUP.
2885.22 How will BLM calculate rent for
communication uses ancillary to a linear local governments, interested (1) For Monitoring Categories 1
grant, TUP, or other use authorization? individuals, and appropriate quasi- through 4, the actions include
2885.23 If I hold a grant or TUP, what public entities. inspecting construction, operation,
monitoring fees must I pay? maintenance, and termination of
§ 2881.5 What acronyms and terms are permanent or temporary facilities and
2885.24 When do I pay monitoring fees?
used in the regulations in this part? protection and rehabilitation activities
Subpart 2886—Operations on MLA Grants (a) Acronyms. Unless an acronym is until the holder completes rehabilitation
and TUPs listed in this section, the acronyms of the right-of-way or TUP area and
2886.10 When can I start activities under listed in part 2800 of this chapter apply BLM approves it;
my grant or TUP? to this part. As used in this part: (2) For Monitoring Category 5 (Master
2886.11 Who regulates activities within my MLA means the Mineral Leasing Act Agreements), those actions agreed to in
right-of-way or TUP area? of 1920, as amended (30 U.S.C. 185).
2886.12 When must I contact BLM during
the Master Agreement; and
TAPS means the Trans-Alaska Oil (3) For Monitoring Category 6, those
operations?
Pipeline System. actions agreed to between BLM and the
2886.13 If I hold a grant or TUP, for what
am I liable?
TUP means a temporary use permit. applicant before BLM issues the grant or
2886.14 As grant or TUP holders, what (b) Terms. Unless a term is defined in TUP.
liabilities do state, tribal, and local this part, the defined terms in part 2800 Oil or gas means oil, natural gas,
governments have? of this chapter apply to this part. As synthetic liquid or gaseous fuels, or any
2886.15 How is grant or TUP used in this part, the term: refined product produced from them.
administration affected if the BLM land Act means section 28 of the Mineral Pipeline means a line crossing Federal
my grant or TUP encumbers is Leasing Act of 1920, as amended (30 lands for transportation of oil or gas.
transferred to another Federal agency or U.S.C. 185). The term includes feeder lines, trunk
out of Federal ownership? Actual costs means the financial lines, and related facilities, but does not
2886.16 Under what conditions may BLM measure of resources the Federal include a lessee’s or lease operator’s
order an immediate temporary government expends or uses in production facilities located on its oil
suspension of my activities?
processing a right-of-way application or and gas lease.
2886.17 Under what conditions may BLM
suspend or terminate my grant or TUP?
in monitoring the construction, Pipeline system means all facilities,
2886.18 How will I know that BLM intends operation, and termination of a facility whether or not located on Federal lands,
to suspend or terminate my grant or authorized by a grant or permit. Actual used by a grant holder in connection
TUP? costs include both direct and indirect with the construction, operation,
2886.19 When my grant or TUP terminates, costs, exclusive of management maintenance, or termination of a
what happens to any facilities on it? overhead costs. pipeline.

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Production facilities means a lessee’s Third party means any person or otherwise, or as noted in this part. You
or lease operator’s pipes and equipment entity other than BLM, the applicant, or may petition for a stay of a BLM
used on its oil and gas lease to aid in the holder of a right-of-way decision under this part with the Office
extracting, processing, and storing oil or authorization. of Hearings and Appeals, Department of
gas. The term includes: the Interior. Unless otherwise noted in
(1) Storage tanks and processing § 2881.7 Scope. this part, BLM will take no action on
equipment; (a) What do these regulations apply your application while your appeal is
(2) Gathering lines upstream from to? The regulations in this part apply to: pending.
such tanks and equipment, or in the (1) Issuing grants and TUPs for
case of gas, upstream from the point of pipelines to transport oil or gas, and § 2881.11 When do I need a grant from
administering, amending, assigning, BLM for an oil and gas pipeline?
delivery; and
(3) Pipes and equipment, such as renewing, and terminating them; You must have a BLM grant under 30
water and gas injection lines, used in (2) All grants and permits BLM and its U.S.C. 185 for an oil or gas pipeline or
the production process for purposes predecessors previously issued under related facility to cross Federal lands
other than carrying oil and gas section 28 of the Act; and under:
downstream from the wellhead. (3) Pipeline systems, or parts thereof, (a) BLM’s jurisdiction; or
Related facilities means those within a Federal oil and gas lease
structures, devices, improvements, and owned by: (b) The jurisdiction of two or more
sites, located on Federal lands, which (i) A party who is not the lessee or Federal agencies.
may or may not be connected or lease operator; or § 2881.12 When do I need a TUP for an oil
contiguous to the pipeline, the (ii) The lessee or lease operator which and gas pipeline?
substantially continuous use of which is are downstream from a custody transfer
necessary for the operation or metering device. You must obtain a TUP from BLM
maintenance of a pipeline, such as: (b) What don’t these regulations apply when you require temporary use of
(1) Supporting structures; to? The regulations in this part do not more land than your grant authorizes in
(2) Airstrips; apply to: order to construct, operate, maintain, or
(3) Roads; (1) Production facilities on an oil and terminate your pipeline, or to protect
(4) Campsites; gas lease which operate for the benefit the environment or public safety.
(5) Pump stations, including of the lease. The lease authorizes these
associated heliports, structures, yards, Subpart 2882—Lands Available for
production facilities;
and fences; MLA Grants and TUPs
(2) Pipelines crossing Federal lands
(6) Valves and other control devices; under the jurisdiction of a single § 2882.10 What lands are available for
(7) Surge and storage tanks; Federal department or agency other than grants or TUPs?
(8) Bridges; BLM, including bureaus and agencies
(9) Monitoring and communication (a) For lands BLM exclusively
within the Department of the Interior; manages, we use the same criteria to
devices and structures housing them; (3) Authorizations BLM issues to
(10) Terminals, including structures, determine whether lands are available
Federal agencies for oil or gas
yards, docks, fences, and storage tank for grants or TUPs as we do to
transportation under § 2801.6 of this
facilities; determine whether lands are available
chapter; or
(11) Retaining walls, berms, dikes, for FLPMA grants (see subpart 2802 of
(4) Authorizations BLM issues under
ditches, cuts and fills; and this chapter).
Title V of the Federal Land Policy and
(12) Structures and areas for storing Management Act of 1976 (see part 2800 (b) BLM may require common use of
supplies and equipment. of this chapter). a right-of-way and may restrict new
Right-of-way means the Federal lands (c) Notwithstanding the definition of grants to existing right-of-way corridors
BLM authorizes a holder to use or ‘‘grant’’ in section 2881.5 of this where safety and other considerations
occupy under a grant. subpart, the regulations in this part allow. Generally, BLM land use plans
Substantial deviation means a change apply, consistent with 43 U.S.C. designate right-of-way corridors.
in the authorized location or use which 1652(c), to any authorization issued by (c) Where a proposed oil or gas right-
requires: the Secretary of the Interior or his or her of-way involves lands managed by two
(1) Construction or use outside the delegate under 43 U.S.C. 1652(b) for the or more Federal agencies, see § 2884.26
boundaries of the right-of-way or TUP Trans-Alaska Oil Pipeline System. of this part.
area; or
(2) Any change from, or modification § 2881.9 Severability. Subpart 2883—Qualifications for
of, the authorized use. Examples of If a court holds any provisions of the Holding MLA Grants and TUPs
substantial deviation include: Adding regulations in this part or their
equipment, overhead or underground § 2883.10 Who may hold a grant or TUP?
applicability to any person or
lines, pipelines, structures, or other circumstances invalid, the remainder of To hold a grant or TUP under these
facilities not included in the original these rules and their applicability to regulations, you must be:
grant or TUP. other people or circumstances will not (a)(1) A United States citizen, an
Temporary use permit or TUP means be affected. association of such citizens, or a
a document BLM issues under 30 U.S.C.
§ 2881.10 How do I appeal a BLM decision corporation, partnership, association, or
185 that is a revocable, nonpossessory
issued under the regulations in this part? similar business entity organized under
privilege to use specified Federal lands
the laws of the United States, or of any
in the vicinity of and in connection with (a) You may appeal a BLM decision
state therein; or
a right-of-way, to construct, operate, issued under the regulations in this part
maintain, or terminate a pipeline or to in accordance with part 4 of this title. (2) A state or local government; and
protect the environment or public (b) All BLM decisions under this part (b) Financially and technically able to
safety. A TUP does not convey any remain in effect pending appeal unless construct, operate, maintain, and
interest in land. the Secretary of the Interior rules terminate the proposed facilities.

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§ 2883.11 Who may not hold a grant or § 2883.14 What happens to my application, (1) The exact diameters of the pipes
TUP? grant, or TUP if I die? and locations of the pipelines;
Aliens may not acquire or hold any (a) If an applicant or grant or TUP (2) Proposed construction and
direct or indirect interest in grants or holder dies, any inheritable interest in reclamation techniques; and
TUPs, except that they may own or the application, grant, or TUP will be (3) The estimated life of the facility.
control stock in corporations holding distributed under state law. (b) File with BLM copies of any
grants or TUPs if the laws of their (b) If the distributee of a grant or TUP applications you file with other Federal
country do not deny similar or like is not qualified to hold a grant or TUP agencies, such as the Federal Energy
privileges to citizens of the United under § 2883.10 of this subpart, BLM Regulatory Commission (see 18 CFR
States. will recognize the distributee as grant or chapter I), for licenses, certificates, or
TUP holder and allow the distributee to other authorities involving the right-of-
§ 2883.12 How do I prove I am qualified to hold its interest in the grant or TUP for way.
hold a grant or TUP? up to two years. During that period, the (c) BLM may ask you to submit
(a) If you are a private individual, distributee must either become qualified additional information beyond that
BLM requires no proof of citizenship or divest itself of the interest. required in the form to assist us in
with your application; processing your application. This
Subpart 2884—Applying for MLA information may include:
(b) If you are a partnership, Grants or TUPs (1) A list of any Federal and state
corporation, association, or other approvals required for the proposal;
business entity, submit the following § 2884.10 What should I do before I file my (2) A description of alternative
information, as applicable, in your application?
route(s) and mode(s) you considered
application: (a) When you determine that a when developing the proposal;
(1) Copies of the formal documents proposed oil and gas pipeline system (3) Copies of, or reference to, all
creating the business entity, such as would cross Federal lands under BLM similar applications or grants you have
articles of incorporation, and including jurisdiction, or under the jurisdiction of submitted, currently hold, or have held
the corporate bylaws; two or more Federal agencies, you in the past;
(2) Evidence that the party signing the should notify BLM. (4) A statement of the need and
application has the authority to bind the (b) Before filing an application with economic feasibility of the proposed
applicant; BLM, we encourage you to make an project;
appointment for a preapplication (5) The estimated schedule for
(3) The name, address, and meeting with the appropriate personnel constructing, operating, maintaining,
citizenship of each participant (e.g., in the BLM field office nearest the lands and terminating the project (a Plan of
partner, associate, or other) in the you seek to use. During the Development);
business entity; preapplication meeting BLM can: (6) A map of the project, showing its
(4) The name, address, and (1) Identify potential routing and proposed location and showing existing
citizenship of each shareholder owning other constraints; facilities adjacent to the proposal;
3 percent or more of each class of (2) Determine whether or not the (7) A statement certifying that you are
shares, and the number and percentage lands are located within a designated or of legal age and authorized to do
of any class of voting shares of the existing right-of-way corridor; business in the state(s) where the right-
business entity which such shareholder (3) Tentatively schedule the of-way would be located, and that you
is authorized to vote; processing of your proposed have submitted correct information to
(5) The name and address of each application; the best of your knowledge;
affiliate of the business entity; (4) Provide you information about (8) A statement of the environmental,
qualifications for holding grants and social, and economic effects of the
(6) The number of shares and the
TUPs, and inform you of your financial proposal;
percentage of any class of voting stock
obligations, such as processing and (9) A statement of your financial and
owned by the business entity, directly
monitoring costs and rents; and technical capability to construct,
or indirectly, in any affiliate controlled
(5) Identify any work which will operate, maintain, and terminate the
by the business entity; and
require obtaining one or more TUPs. project;
(7) The number of shares and the (c) BLM may share this information (10) Proof that you are a United States
percentage of any class of voting stock with Federal, state, tribal, and local citizen; and
owned by an affiliate, directly or government agencies to ensure that (11) Any other information BLM
indirectly, in the business entity these agencies are aware of any considers necessary to process your
controlled by the affiliate. authorizations you may need from them. application.
(c) If you have already supplied this (d) BLM will keep confidential any (d) Before BLM reviews your
information to BLM and the information information in your application that you application for a grant, grant
remains accurate, you only need to mark as ‘‘confidential’’ or ‘‘proprietary’’ amendment, or grant renewal, you must
reference the existing or previous BLM to the extent allowed by law. submit the following information and
serial number under which it is filed. material to ensure that the facilities will
§ 2884.11 What information must I submit be constructed, operated, and
§ 2883.13 What happens if BLM issues me in my application? maintained as common carriers under
a grant or TUP and later determines that I (a) File your application on Form SF– 30 U.S.C. 185(r):
am not qualified to hold it?
299 or as part of an Application for (1) Conditions for, and agreements
If BLM issues you a grant or TUP, and Permit to Drill or Reenter (BLM Form among, owners or operators to add
later determines that you are not 3160–3) or Sundry Notice and Report on pumping facilities and looping, or
qualified to hold it, BLM will terminate Wells (BLM Form 3160–5), available otherwise to increase the pipeline or
your grant or TUP under 30 U.S.C. from any BLM office. Provide a terminal’s throughput capacity in
185(o). You may appeal this decision complete description of the project, response to actual or anticipated
under § 2881.10 of this part. including: increases in demand;

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(2) Conditions for adding or § 2884.12 What is the processing fee for a estimate of the amount of time that the
abandoning intake, offtake, or storage grant or TUP application? Federal Government will expend to
points or facilities; and (a) You must pay a fee with the process your application and issue a
(3) Minimum shipment or purchase application to cover the costs to the decision granting or denying the
tenders. Federal Government of processing your application.
(e) If conditions or information application before the Federal
affecting your application change, Government incurs them. The fees for (b) There is no processing fee if work
promptly notify BLM and submit to Processing Categories 1 through 4 (see is estimated to take one hour or less.
BLM in writing the necessary changes to paragraph (b) of this section) are one- Processing fees are based on categories.
your application. BLM may deny your time fees and are not refundable. The These categories and fees for 2005 are:
application if you fail to do so. fees are categorized based on an

2005 PROCESSING FEE SCHEDULE


Processing fee per application as
of June 21, 2005. To be adjusted
Processing category Federal work hours involved annually for changes in the IPD–
GDP. See paragraph (c) of this
section for update information

(1) Applications for new grants or TUPs, assignments, renewals, and Estimated Federal work hours are $97.
amendments to existing grants or TUPs. >1 ≤8.
(2) Applications for new grants or TUPs, assignments, renewals, and Estimated Federal work hours are $343.
amendments to existing grants or TUPs. >8 ≤24.
(3) Applications for new grants or TUPs, assignments, renewals, and Estimated Federal work hours are $644.
amendments to existing grants or TUPs. >24 ≤36.
(4) Applications for new grants or TUPs, assignments, renewals, and Estimated Federal work hours are $923.
amendments to existing grants or TUPs. >36 ≤50.
(5) Master Agreements. ............................................................................ Varies ............................................. As specified in the Agreement.
(6) Applications for new grants or TUPs, assignments, renewals, and Estimated Federal work hours are Actual costs (see § 2884.17 of
amendments to existing grants or TUPs. >50. this part).

(c) BLM will revise paragraph (b) of If IBLA finds in your favor, you will § 2884.14 When does BLM reevaluate the
this section to update the processing receive a refund or adjustment of your processing and monitoring fees?
fees for Categories 1 through 4 in the processing fee. BLM reevaluates the processing and
schedule each calendar year, based on (e) In processing your application, monitoring fees (see § 2885.23 of this
the previous year’s change in the IPD– BLM may determine at any time that the part) for each category and the
GDP, as measured second quarter to application requires preparing an EIS. If categories themselves within 5 years
second quarter. BLM will round these this occurs, BLM will send you a after they go into effect and at 10-year
changes to the nearest dollar. BLM will decision changing your processing intervals after that. When reevaluating
update Category 5 processing fees as category to Processing Category 6. You processing and monitoring fees, BLM
specified in the Master Agreement. You may appeal the decision under considers all factors that affect the fees,
also may obtain a copy of the current § 2881.10 of this part. including, but not limited to, any
schedule from any BLM state or field (f) If you hold an authorization changes in:
office or by writing: Director, BLM, 1849 relating to TAPS, BLM will send you a (a) Technology;
C St., NW., Mail Stop 1000LS, written statement seeking (b) The procedures for processing
Washington, DC 20240. BLM also posts reimbursement of actual costs within 60 applications and monitoring grants;
the current schedule on the BLM calendar days after the close of each (c) Statutes and regulations relating to
Homepage on the Internet at http:// quarter. Quarters end on the last day of the right-of-way program; or
www.blm.gov. March, June, September, and December. (d) The IPD–GDP.
In processing applications and
(d) After an initial review of your administering authorizations relating to § 2884.15 What is a Master Agreement
application, BLM will notify you of the TAPS, the Department of the Interior (Processing Category 5) and what
processing category into which your information must I provide to BLM when I
will avoid unnecessary employment of request one?
application fits. You must then submit personnel and needless expenditure of
the appropriate payment for that funds. (a) A Master Agreement (Processing
category before BLM begins processing Category 5) is a written agreement
your application. Your signature on a § 2884.13 Who is exempt from paying covering processing and monitoring fees
cost recovery Master Agreement processing and monitoring fees? (see § 2885.23 of this part) negotiated
constitutes your agreement with the You are exempt from paying between BLM and you that involves
processing category decision. If you processing and monitoring fees if you multiple BLM grant or TUP approvals
disagree with the category that BLM has are a state or local government or an for projects within a defined geographic
determined for your application, you agency of such a government and BLM area.
may appeal the decision under issues the grant for governmental (b) Your request for a Master
§ 2881.10 of this part. If you paid the purposes benefitting the general public. Agreement must:
processing fee and you appeal a If your principal source of revenue (1) Describe the geographic area
Processing Category 1 through 4 or a results from charges you levy on covered by the Agreement and the scope
Processing Category 6 determination to customers for services similar to those of the activity you plan;
IBLA, BLM will process your of a profit-making corporation or (2) Include a preliminary work plan.
application while the appeal is pending. business, you are not exempt. This plan must state what work you

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must do and what work BLM must do (iv) Financial information you must (c) If BLM determines that
to process your application. Both parties submit; and competition exists, BLM will describe
must periodically update the work plan, (5) Complete final scoping and the procedures for a competitive bid
as specified in the Agreement, and develop final work and financial plans through a bid announcement in a
mutually agree to the changes; which reflect any work you have agreed newspaper of general circulation in the
(3) Contain a preliminary cost to do. BLM will also present you with area affected by the potential right-of-
estimate and a timetable for processing the final estimate of the costs you must way and by a notice in the Federal
the application and completing the reimburse the United States, including Register.
project; the cost for monitoring the project.
(4) State whether you want the § 2884.19 Where do I file my application
(c) BLM retains the option to prepare for a grant or TUP?
Agreement to apply to future any environmental documents related to
applications in the same geographic area (a) If BLM has exclusive jurisdiction
your application. If BLM allows you to
that are not part of the same project(s); over the lands involved, file your
prepare any environmental documents
and application with the BLM Field Office
and conduct any studies that BLM
(5) Contain any other relevant having jurisdiction over the lands
needs to process your application, you
information that BLM needs to process described in the application.
must do the work following BLM
the application. (b) If another Federal agency has
standards. For this purpose, you and
exclusive jurisdiction over the land
BLM may enter into a written
§ 2884.16 What provisions do Master involved, file your application with that
Agreements contain and what are their agreement. BLM will make the final
agency and refer to its regulations for its
limitations? determinations and conclusions arising
requirements.
(a) A Master Agreement: from such work.
(c) If there are no BLM-administered
(1) Specifies that you must comply (d) BLM will periodically, as stated in lands involved, but the lands are under
with all applicable laws and regulations; the agreement, estimate processing costs the jurisdiction of two or more Federal
(2) Describes the work you will do for a specific work period and notify agencies, you may file your application
and the work BLM will do to process you of the amount due. You must pay at the BLM office in the vicinity of the
the application; the amount due before BLM will pipeline. BLM will notify you where to
(3) Describes the method of periodic continue working on your application. If direct future communications about the
billing, payment, and auditing; your payment exceeds the costs that the pipeline.
(4) Describes the processes, studies, or United States incurred for the work, (d) If two or more Federal agencies,
evaluations you will pay for; BLM will either adjust the next billing including BLM, have jurisdiction over
(5) Explains how BLM will monitor to reflect the excess, or refund you the the lands in the application, file it at
the grant and how BLM will recover excess under 43 U.S.C. 1734. You may any BLM office having jurisdiction over
monitoring costs; not deduct any amount from a payment a portion of the Federal lands. BLM will
(6) Contains provisions allowing for without BLM’s prior written approval. notify you where to direct future
periodic review and updating, if § 2884.18 What if there are two or more communications about the pipeline.
required; competing applications for the same
(7) Contains specific conditions for § 2884.20 What are the public notification
pipeline?
terminating the Agreement; and requirements for my application?
(a) If there are two or more competing (a) When BLM receives your
(8) Contains any other provisions
applications for the same pipeline and application, it will publish a notice in
BLM considers necessary.
your application is in: the Federal Register or a newspaper of
(b) BLM will not enter into any
(1) Processing Categories 1 through 4. general circulation in the vicinity of the
Agreement that is not in the public
You must reimburse BLM for processing lands involved. If BLM determines the
interest.
costs as if the other application or pipeline(s) will have only minor
§ 2884.17 How will BLM process my applications had not been filed. environmental impacts, it is not
Processing Category 6 application? (2) Processing Category 6. You are required to publish this notice. The
(a) For Processing Category 6 responsible for processing costs notice will, at a minimum, contain:
applications, you and BLM must enter identified in your application. If BLM (1) A description of the pipeline
into a written agreement that describes cannot readily separate costs, such as system; and
how BLM will process your application. costs associated with preparing (2) A statement of where the
The final agreement consists of a work environmental analyses, you and any application and related documents are
plan and a financial plan. competing applicants must pay an equal available for review.
(b) In processing your application, share or a proportion agreed to in (b) BLM will send copies of the
BLM will: writing among all applicants and BLM. published notice for review and
(1) Determine the issues subject to If you agree to share costs that are comment to the:
analysis under NEPA; common to your application and that of (1) Governor of each state within
(2) Prepare a preliminary work plan; a competing applicant, and the which the pipeline system would be
(3) Develop a preliminary financial competitor does not pay the agreed located;
plan, which estimates the actual costs of upon amount, you are liable for the (2) Head of each local or tribal
processing your application and entire amount due. The applicants must government or jurisdiction within
monitoring your project; pay the entire processing fee in advance. which the pipeline system would be
(4) Discuss with you: BLM will not process the application located; and
(i) The preliminary plans and data; until we receive the advance payments. (3) Heads of other Federal agencies
(ii) The availability of funds and (b) Who determines whether whose jurisdiction includes lands
personnel; competition exists? BLM determines within which the pipeline system
(iii) Your options for the timing of whether the applications are compatible would be located.
processing and monitoring fee in a single right-of-way or are competing (c) If your application involves a
payments; and applications to build the same pipeline. pipeline that is 24 inches or more in

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diameter, BLM will also send notice of a notice of any such hearings or § 2884.21 How will BLM process my
the application to the appropriate meetings in advance in the Federal application?
committees of Congress in accordance Register or in a newspaper of general (a) BLM will notify you in writing
with 30 U.S.C. 185(w). circulation in the vicinity of the lands when it receives your application and
(d) BLM may hold public hearings or involved. will identify your processing fee
meetings on your application if we described at § 2884.12 of this subpart.
determine there is sufficient interest to (b) Customer service standard. BLM
warrant the time and expense of such will process your completed application
hearings or meetings. BLM will publish as follows:

Processing category Processing time Conditions

1–4 ............................. 60 calendar days .................................. If processing your application will take longer than 60 calendar days, BLM will
notify you in writing of this fact prior to the 30th calendar day and inform
you of when you can expect a final decision on your application.
5 ................................. As specified in the Master Agreement BLM will process applications as specified in the Agreement.
6 ................................. Over 60 calendar days ......................... BLM will notify you in writing within the initial 60 day processing period of the
estimated processing time.

(c) Before issuing a grant or TUP, BLM (4) Issuing the grant or TUP would be application, as may any other member
will: inconsistent with the Act, other laws, or of the public. BLM does not require a
(1) Complete a NEPA analysis for the these or other regulations; grant or TUP for casual use on BLM
application or approve a NEPA analysis (5) You do not have or cannot lands.
previously completed for the demonstrate the technical or financial (b) For any activities on BLM lands
application, as required by 40 CFR parts capability to construct the pipeline or that are not casual use, you must obtain
1500 through 1508; operate facilities within the right-of-way prior BLM approval. To conduct
(2) Determine whether or not your or TUP area; or activities on lands administered by
proposed use complies with applicable (6) You do not adequately comply other Federal agencies, you must obtain
Federal and state laws, regulations, and with a deficiency notice (see any prior approval those agencies
local ordinances; § 2804.25(b) of this chapter) or with any require.
(3) Consult, as necessary, with other BLM requests for additional information
needed to process the application. § 2884.26 When will BLM issue a grant or
governmental entities; TUP when the lands are managed by two or
(4) Hold public meetings, if sufficient (b) If BLM denies your application,
more Federal agencies?
public interest exists to warrant their you may appeal the decision under
§ 2881.10 of this part. If the application involves lands
time and expense. BLM will publish a
managed by two or more Federal
notice in the Federal Register, a § 2884.24 What fees do I owe if BLM agencies, BLM will not issue or renew
newspaper of general circulation in the denies my application or if I withdraw my the grant or TUP until the heads of the
vicinity of the lands involved, or both, application? agencies administering the lands
announcing in advance any public If BLM denies your application, or involved have concurred. Where
hearings or meetings; and you withdraw it, you owe the concurrence is not reached, the
(5) Take any other action necessary to processing fee set forth at § 2884.12(b) of Secretary of the Interior, after
fully evaluate and decide whether to this subpart, unless you have a consultation with these agencies, may
approve or deny your application. Processing Category 5 or 6 application. issue or renew the grant or TUP, but not
§ 2884.22 Can BLM ask me for additional
Then, the following conditions apply: through lands within a Federal
information? (a) If BLM denies your Processing reservation where doing so would be
Category 5 or 6 application, you are inconsistent with the purposes of the
(a) If we ask for additional liable for all actual costs that the United
information we will follow the reservation.
States incurred in processing it. The
procedures in § 2804.25(b) of this money you have not paid is due within § 2884.27 What additional requirement is
chapter. 30 calendar days after receiving a bill necessary for grants or TUPs for pipelines
(b) BLM may also ask other Federal for the amount due; and 24 or more inches in diameter?
agencies for additional information, for (b) You may withdraw your If an application is for a grant or TUP
terms and conditions or stipulations application in writing before BLM for a pipeline 24 inches or more in
which the grant or TUP should contain, issues a grant or TUP. If you do so, you diameter, BLM will not issue or renew
and for advice as to whether or not to are liable for all actual processing costs the grant or TUP until after we notify
issue the grant or TUP. the United States has incurred up to the the appropriate committees of Congress
§ 2884.23 Under what circumstances may time you withdraw the application and in accordance with 30 U.S.C. 185(w).
BLM deny my application? for the actual costs of terminating your
application. Any money you have not Subpart 2885—Terms and Conditions
(a) BLM may deny your application if: of MLA Grants and TUPs
(1) The proposed use is inconsistent paid is due within 30 calendar days
with the purpose for which BLM or after receiving a bill for the amount due. § 2885.10 When is a grant or TUP
other Federal agencies manage the lands § 2884.25 What activities may I conduct on effective?
described in your application; BLM lands covered by my application for a A grant or TUP is effective after both
(2) The proposed use would not be in grant or TUP while BLM is processing my you and BLM sign it. You must accept
the public interest; application? its terms and conditions in writing and
(3) You are not qualified to hold a (a) You may conduct casual use pay any necessary rent and monitoring
grant or TUP; activities on BLM lands covered by the fees as set out in §§ 2885.19 and 2885.23

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of this subpart. Your written acceptance human health, the environment, and (13) Control and remove any release
constitutes an agreement between you property incurred in connection with or discharge of hazardous material on or
and the United States that your right to your use and occupancy of the right-of- near the right-of-way or TUP area
use the Federal lands, as specified in the way or TUP area, including terminating arising in connection with your use and
grant or TUP, is subject to the terms and the grant or TUP, and to secure all occupancy of the right-of-way or TUP
conditions of the grant or TUP and obligations imposed by the grant or TUP area, whether or not the release or
applicable laws and regulations. and applicable laws and regulations. discharge is authorized under the grant
Your bond must cover liability for or TUP. You must also remediate and
§ 2885.11 What terms and conditions must damages or injuries resulting from restore lands and resources affected by
I comply with?
releases or discharges of hazardous the release or discharge to BLM’s
(a) Duration. All grants with a term of materials. BLM may require a bond, an satisfaction and to the satisfaction of
one year or longer will terminate on increase or decrease in the value of an any other Federal, state, tribal, or local
December 31 of the final year of the existing bond, or other acceptable agency having jurisdiction over the
grant. The term of a grant may not security at any time during the term of land, resource, or hazardous material;
exceed 30 years. The term of a TUP may the grant or TUP. This bond is in (14) Comply with all liability and
not exceed 3 years. BLM will consider addition to any individual lease, indemnification provisions and
the following factors in establishing a statewide, or nationwide oil and gas stipulations in the grant or TUP;
reasonable term: bonds you may have; (15) As BLM directs, provide
(1) The cost of the pipeline and (8) Assume full liability if third diagrams or maps showing the location
related facilities you plan to construct, parties are injured or damages occur to of any constructed facility;
operate, maintain, or terminate; property on or near the right-of-way or (16) Construct, operate, and maintain
(2) The pipeline’s or related facility’s TUP area (see § 2886.13 of this part); the pipeline as a common carrier. This
useful life; (9) Comply with project-specific means that the pipeline owners and
(3) The public purpose served; and terms, conditions, and stipulations, operators must accept, convey,
(4) Any potentially conflicting land including requirements to: transport, or purchase without
uses; and (i) Restore, revegetate, and curtail discrimination all oil or gas delivered to
(b) Terms and conditions of use. BLM erosion or any other rehabilitation the pipeline without regard to where the
may modify your proposed use or measure BLM determines is necessary; oil and gas was produced (i.e., whether
change the route or location of the (ii) Ensure that activities in on Federal or non-federal lands). Where
facilities in your application. By connection with the grant or TUP natural gas not subject to state
accepting a grant or TUP, you agree to comply with air and water quality regulatory or conservation laws
use the lands described in the grant or standards or related facility siting governing its purchase by pipeline
TUP for the purposes set forth in the standards contained in applicable companies is offered for sale, each
grant or TUP. You also agree to comply Federal or state law or regulations; pipeline company must purchase,
with, and be bound by, the following (iii) Control or prevent damage to without discrimination, any such
terms and conditions. During scenic, aesthetic, cultural, and natural gas produced in the vicinity of
construction, operation, maintenance, environmental values, including fish the pipeline. Common carrier provisions
and termination of the project you must: and wildlife habitat, and to public and of this paragraph do not apply to natural
(1) To the extent practicable, comply private property and public health and gas pipelines operated by a:
with all existing and subsequently safety; (i) Person subject to regulation under
enacted, issued, or amended Federal (iv) Protect the interests of individuals the Natural Gas Act (15 U.S.C. 717 et
laws and regulations, and state laws and living in the general area who rely on seq.); or
regulations applicable to the authorized the area for subsistence uses as that term (ii) Public utility subject to regulation
use; is used in Title VIII of ANILCA (16 by state or municipal agencies with the
(2) Rebuild and repair roads, fences, U.S.C. 3111 et seq.); and authority to set rates and charges for the
and established trails destroyed or (v) Ensure that you construct, operate, sale of natural gas to consumers within
damaged by constructing, operating, maintain, and terminate the facilities on the state or municipality.
maintaining, or terminating the project; the lands in the right-of-way or TUP (17) Within 30 calendar days after
(3) Build and maintain suitable area in a manner consistent with the BLM requests it, file rate schedules and
crossings for existing roads and grant or TUP; tariffs for oil and gas, or derivative
significant trails that intersect the (10) Immediately notify all Federal, products, transported by the pipeline as
project; state, tribal, and local agencies of any a common carrier with the agency BLM
(4) Do everything reasonable to release or discharge of hazardous prescribes, and provide BLM proof that
prevent and suppress fires on or in the material reportable to such entity under you made the required filing;
immediate vicinity of the right-of-way applicable law. You must also notify (18) With certain exceptions (listed in
or TUP area; BLM at the same time, and send BLM the statute), not export domestically
(5) Not discriminate against any a copy of any written notification you produced crude oil by pipeline without
employee or applicant for employment prepared; Presidential approval (see 30 U.S.C.
during any phase of the project because (11) Not dispose of or store hazardous 185(u) and (s) and 50 U.S.C. App. 2401);
of race, creed, color, sex, or national material on your right-of-way or TUP (19) Not exceed the right-of-way
origin. You must also require area, except as provided by the terms, width that is specified in the grant
subcontractors to not discriminate; conditions, and stipulation of your grant without BLM’s prior written
(6) Pay the rent and monitoring fees or TUP; authorization. If you need a right-of-way
described in §§ 2885.19 and 2885.23 of (12) Certify that your compliance with wider than 50 feet plus the ground
this subpart; all requirements of the Emergency occupied by the pipeline and related
(7) If BLM requires, obtain and/or Planning and Community Right-to- facilities, see § 2885.14 of this subpart;
certify that you have obtained a surety Know Act of 1986, 42 U.S.C. 11001 et (20) Not use the right-of-way or TUP
bond or other acceptable security to seq., when you receive, assign, renew, area for any use other than that
cover any losses, damages, or injury to amend, or terminate your grant or TUP; authorized by the grant or TUP. If you

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require other pipelines, looping lines, or (c) Retain ownership of the resources § 2885.17 What happens if I pay the rent
other improvements not authorized by of the land covered by the grant or TUP, late?
the grant or TUP, you must first secure including timber and vegetative or (a) If BLM does not receive the rent
BLM’s written authorization; mineral materials and any other living payment within 15 calendar days after
(21) Not use or construct on the land or non-living resources. You have no the rent was due under § 2885.16 of this
in the right-of-way or TUP area until: right to use these resources, except as subpart, BLM will charge you a late
(i) BLM approves your detailed plan noted in § 2885.12 of this subpart; payment fee of $25.00 or 10 percent of
for construction, operation, and (d) Determine whether or not your the rent you owe, whichever is greater,
termination of the pipeline, including grant is renewable; and not to exceed $500 per authorization.
provisions for rehabilitation of the right- (b) If BLM does not receive your rent
(e) Change the terms and conditions
of-way or TUP area and environmental payment and late payment fee within 30
of your grant or TUP as a result of
protection; and calendar days after rent was due, BLM
changes in legislation, regulation, or as may collect other administrative fees
(ii) You receive a Notice to Proceed otherwise necessary to protect public
for all or any part of the right-of-way or provided by statute.
health or safety or the environment. (c) If BLM does not receive your rent,
TUP area. In certain situations BLM may
waive this requirement in writing; and § 2885.14 What happens if I need a right- late payment fee, and any
(22) Comply with all other of-way wider than 50 feet plus the ground administrative fees within 90 calendar
stipulations that BLM may require. occupied by the pipeline and related days after the rent was due, BLM may
facilities? terminate your grant under § 2886.17 of
§ 2885.12 What rights does a grant or TUP
(a) You may apply to BLM at any time this part and you may not remove any
convey? facility or equipment without BLM’s
for a right-of-way wider than 50 feet
The grant or TUP conveys to you only plus the ground occupied by the written permission. The rent due, late
those rights which it expressly contains. pipeline and related facilities. In your payment fees, and any administrative
BLM issues it subject to the valid application you must show that the fees remain a debt that you owe to the
existing rights of others, including the wider right-of-way is necessary to: United States.
United States. Rights which the grant or (d) If you pay the rent, late payment
(1) Properly operate and maintain the fees, and any administrative fees after
TUP conveys to you include the right to:
pipeline after you have constructed it; BLM has terminated the grant, BLM
(a) Use the described lands to
construct, operate, maintain, and (2) Protect the environment; or does not automatically reinstate the
terminate facilities within the right-of- (3) Provide for public safety. grant. You must file a new application
way or TUP area for authorized (b) BLM will notify you in writing of with BLM. BLM will consider the
purposes under the terms and its finding(s) and its decision on your history of your failure to timely pay rent
conditions of the grant or TUP; application for a wider right-of-way. If in deciding whether to issue you a new
(b) Allow others to use the land as the decision is adverse to you, you may grant.
your agent in the exercise of the rights appeal it under § 2881.10 of this part. (e) You may appeal any adverse
that the grant or TUP specifies; decision BLM takes against your grant
(c) Do minor trimming, pruning, and § 2885.15 How will BLM charge me rent? or TUP under § 2881.10 of this part.
removing of vegetation to maintain the (a) BLM will charge rent beginning on § 2885.18 When must I make estimated
right-of-way or TUP area or facility; the first day of the month following the rent payments to BLM?
(d) Use common varieties of stone and effective date of the grant or TUP To expedite the processing of your
soil which are necessarily removed through the last day of the month when application for a grant or TUP, BLM
during construction of the pipeline, the grant or TUP terminates. Example: If may estimate rent payments and require
without additional BLM authorization a grant or TUP becomes effective on you to pay that amount when it issues
or payment, in constructing the pipeline January 10 and terminates on September the grant or TUP. The rent amount may
within the authorized right-of-way or 16, the rental period would be February change once BLM determines the actual
TUP area; and 1 through September 30, or 8 months. rent of the grant or TUP. BLM will
(e) Assign the grant or TUP to another, (b) There are no reductions or waivers credit you any rental overpayment, and
provided that you obtain BLM’s prior of rent for grants or TUPs. you are liable for any underpayment.
written approval. (c) BLM will set or adjust the annual This section does not apply to rent
§ 2885.13 What rights does the United billing periods to coincide with the payments made under the rent schedule
States retain? calendar year by prorating the rent in this part.
The United States retains and may based on 12 months.
§ 2885.19 What is the rent for a linear
exercise any rights the grant or TUP (d) If you disagree with the rent that right-of-way?
does not expressly convey to you. These BLM charges, you may appeal the (a) Except as noted in paragraph (b) of
include the United States’ right to: decision under § 2881.10 of this part. this section, BLM will use the Per Acre
(a) Access the lands covered by the § 2885.16 When do I pay rent? Rent Schedule at § 2806.20(b) of this
grant or TUP at any time and enter any chapter to calculate the rent. The Per
facility you construct on the right-of- (a) You must pay rent for the initial Acre Rent Schedule is updated annually
way or TUP area. BLM will give you rental period before BLM issues you a in accordance with § 2806.21 of this
reasonable notice before it enters any grant or TUP. chapter.
facility on the right-of-way or TUP area; (b) You make all other rental (b) BLM may determine your rent
(b) Require common use of your right- payments according to the payment using the methods described in
of-way or TUP area, including plan described in § 2885.21 of this § 2806.50 of this chapter, rather than by
subsurface and air space, and authorize subpart. using the rent schedule cited in
use of the right-of-way or TUP area for (c) After the first rental payment, all paragraph (a) of this section if the rent
compatible uses. You may not charge for rent is due on January 1 of the first year determined by comparable commercial
the use of the lands made subject to of each succeeding rental period for the practices or an appraisal would be 10 or
such additional right-of-way grants; term of your grant. more times the rent from the schedule.

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(c) Once you are on a rent schedule, § 2885.21 How must I make rent payments § 2885.22 How will BLM calculate rent for
BLM will not remove you from it, for my grant or TUP? communication uses ancillary to a linear
unless: (a) For TUPs you must make a one- grant, TUP, or other use authorization?
(1) The BLM State Director decides to time nonrefundable payment for the When a communication use is
remove you from the schedule under term of the TUP. For grants, you must ancillary to, and authorized by BLM
paragraph (b) of this section; or make either nonrefundable annual under, a grant or TUP for a linear use,
(2) You file an application to amend payments or nonrefundable payments or some other type of authorization (e.g.,
your grant. for more than 1 year, as follows: a mineral lease or sundry notice), BLM
(d) You may obtain the current linear (1) One-time payments. You may pay will determine the rent using the linear
right-of-way rent schedule from any in advance the required rent amount for rent schedule (see § 2885.19 of this
BLM state or field office or by writing: the entire term of the grant. subpart) or rent scheme associated with
Director, BLM, 1849 C St., NW., Mail (2) If you choose not to make a one- the other authorization, and not the
Stop 1000 LS, Washington, DC 20240. time payment, you must pay according communication use rent schedule (see
BLM also posts the current rent to one of the following methods, as § 2806.30 of this chapter).
schedule on the BLM Homepage on the applicable:
(i) Payments by individuals. If your § 2885.23 If I hold a grant or TUP, what
Internet at http://www.blm.gov. monitoring fees must I pay?
annual rent is $100 or less, you must
§ 2885.20 How will BLM calculate my rent pay at 10-year intervals not to exceed (a) Monitoring fees. Subject to
for linear rights-of-way the schedule the term of the grant. If your annual rent § 2886.11 of this part, you must pay a
covers? is greater than $100, you may pay fee to BLM for any costs the Federal
(a) BLM calculates your rent by annually or at multi-year intervals that Government incurs in monitoring the
multiplying the rent per acre for the you may choose. construction, operation, maintenance,
appropriate category of use and county (ii) Payments by all others. You must and termination of the pipeline and
zone price from the current schedule by pay rent in advance at ten-year intervals protection and rehabilitation of the
the number of acres in the right-of-way not to exceed the term of the grant. affected Federal lands your grant or TUP
or TUP area that fall in those categories (b) BLM considers the first partial covers. BLM categorizes the monitoring
and multiplying the result by the calendar year in the rent payment fees based on the estimated number of
number of years in the rental period. period to be the first year of the rental work hours necessary to monitor your
(b) If BLM has not previously used the payment term. BLM prorates the first grant or TUP. Category 1 through 4
rent schedule to calculate your rent, we year rental amount based on the number monitoring fees are one-time fees and
may do so after giving you reasonable of months left in the calendar year after are not refundable. The work hours and
written notice. the effective date of the grant. fees for 2005 are as follows:

2005 MONITORING FEE SCHEDULE


Monitoring fee as of June 21,
2005. To be adjusted annually
Monitoring category Federal work hours involved for changes in the IPD–GDP.
See paragraph (b) of this section
for update information

(1) Applications for new grants and TUPs, assignments, renewals, and Estimated Federal work hours are $97.
amendments to existing grants and TUPs. > 1 ≤ 8.
(2) Applications for new grants and TUPs, assignments, renewals, and Estimated Federal work hours are $343.
amendments to existing grants and TUPs. > 8 ≤ 24.
(3) Applications for new grants and TUPs, assignments, renewals, and Estimated Federal work hours are $644.
amendments to existing grants and TUPs. > 24 ≤ 36.
(4) Applications for new grants and TUPs, assignments, renewals, and Estimated Federal work hours are $923.
amendments to existing grants and TUPS. > 36 ≤ 50.
(5) Master Agreements ............................................................................. Varies ............................................. As specified in the Agreement.
(6) Applications for new grants and TUPs, assignments, renewals, and Estimated Federal work hours > 50. Actual costs.
amendments to existing grants and TUPs.

(b) Updating the schedule. BLM will § 2885.24 When do I pay monitoring fees? associated with processing fees
revise paragraph (a) of this section (a) Monitoring Categories 1 through 4. described at § 2884.12 of this part. If
annually to update Category 1 through Unless BLM otherwise directs, you must BLM has underestimated the monitoring
4 monitoring fees in the manner pay monitoring fees when you submit to costs, we will notify you of the shortfall.
described at § 2884.12(c) of this part. BLM your written acceptance of the If your payments exceed the actual costs
BLM will update Category 5 monitoring terms and conditions of the grant or that Federal employees incurred for
fees as specified in the Master TUP. monitoring, BLM will either reimburse
Agreement. The monitoring cost (b) Monitoring Category 5. You must you the difference, or adjust the next
schedule is available from any BLM pay the monitoring fees as specified in billing to reflect the overpayment.
state or field office or by writing: the Master Agreement. BLM will not Unless BLM gives you written
Director, Bureau of Land Management, issue your grant or TUP until it receives authorization, you may not offset or
1849 C St., NW., Mail Stop 1000LS, the required payment. deduct the overpayment from your
Washington, DC 20240. BLM also posts (c) Monitoring Category 6. BLM may payments.
the current schedule on the BLM periodically estimate the costs of (d) Monitoring Categories 1–4 and 6.
Homepage on the Internet at http:// monitoring your use of the grant or TUP. If you disagree with the category BLM
www.blm.gov. BLM will include this fee in the costs has determined for your application,

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you may appeal the decision under parties for any damage or injury they (f) We address liability of state, tribal,
§ 2881.10 of this part. incur in connection with your use and and local governments in § 2886.14 of
occupancy of the right-of-way or TUP this subpart.
Subpart 2886—Operations on MLA area. (g) The provisions of this section do
Grants and TUPs (b) You are strictly liable for any not limit or exclude other remedies.
activity or facility associated with your
§ 2886.10 When can I start activities under § 2886.14 As grant or TUP holders, what
my grant or TUP? right-of-way or TUP area which BLM
determines presents a foreseeable liabilities do state, tribal, and local
(a) When you can start depends on the governments have?
hazard or risk of damage or injury to the
terms of your grant or TUP. You can (a) If you are a state, tribal, or local
United States. BLM will specify in the
start activities when you receive the government or its agency or
grant or TUP any activity or facility
grant or TUP you and BLM signed, instrumentality, you are liable to the
posing such hazard or risk, and the
unless the grant or TUP includes a fullest extent law allows at the time that
financial limitations on damages
requirement for BLM to provide a BLM issues your grant or TUP. If you do
commensurate with such hazard or risk.
written Notice to Proceed. If your grant not have the legal power to assume full
(1) BLM will not impose strict
or TUP contains a Notice to Proceed liability, you must repair damages or
liability for damage or injury resulting
requirement, you may not initiate make restitution to the fullest extent of
primarily from an act of war or the
construction, operation, maintenance, or your powers.
negligence of the United States, except
termination until BLM issues you a (b) BLM may require you to provide
as otherwise provided by law.
Notice to Proceed. (2) As used in this section, strict a bond, insurance, or other acceptable
(b) Before you begin operating your
liability extends to costs incurred by the security to:
pipeline or related facility authorized by
Federal government to control or abate (1) Protect the liability exposure of the
a grant or TUP, you must certify in
conditions, such as fire or oil spills, United States to claims by third parties
writing to BLM that the pipeline system:
(1) Has been constructed and tested which threaten life, property, or the arising out of your use and occupancy
according to the terms of the grant or environment, even if the threat occurs to of the right-of-way or TUP area;
TUP; and areas that are not under Federal (2) Cover any losses, damages, or
(2) Is in compliance with all required jurisdiction. This liability is separate injury to human health, the
plans, specifications, and Federal and and apart from liability under other environment, and property incurred in
state laws and regulations. provisions of law. connection with your use and
(3) You are strictly liable to the occupancy of the right-of-way or TUP
§ 2886.11 Who regulates activities within United States for damage or injury up to area; and
my right-of-way or TUP area? $2 million for any one incident. BLM (3) Cover any damages or injuries
After BLM has issued the grant or will update this amount annually to resulting from the release or discharge
TUP, the head of the agency having adjust for changes in the Consumer of hazardous materials incurred in
administrative jurisdiction over the Price Index for All Urban Consumers, connection with your use and
Federal lands involved will regulate U.S. City Average (CPI–U) as of July of occupancy of the right-of-way or TUP
your grant or TUP activities in each year (difference in CPI–U from July area.
conformance with the Act, appropriate of one year to July of the following (c) Based on your record of
regulations, and the terms and year), rounded to the nearest $1,000. compliance and changes in risk and
conditions of the grant or TUP. BLM This financial limitation does not apply conditions, BLM may require you to
and the other agency head may reach to the release or discharge of hazardous increase or decrease the amount of your
another agreement under 30 U.S.C. substances on or near the grant or TUP bond, insurance, or security.
185(c). area, or where liability is otherwise not (d) The provisions of this section do
subject to this financial limitation under not limit or exclude other remedies.
§ 2886.12 When must I contact BLM during applicable law.
operations? (4) BLM will determine your liability § 2886.15 How is grant or TUP
You must contact BLM: for any amount in excess of the $2 administration affected if the BLM land my
(a) At the times specified in your million strict liability limitation (as grant or TUP encumbers is transferred to
grant or TUP; another Federal agency or out of Federal
adjusted) through the ordinary rules of ownership?
(b) When your use requires a negligence.
substantial deviation from the grant or (5) The rules of subrogation apply in (a) If there is a proposal to transfer the
TUP. You must obtain BLM’s approval cases where a third party caused the BLM land your grant or TUP encumbers
before you begin any activity that is a damage or injury. to another Federal agency, BLM may,
substantial deviation; (c) If you cannot satisfy claims for after reasonable notice to you, transfer
(c) When there is a change affecting injury or damage, all owners of any administration of your grant or TUP, for
your application, grant, or TUP interests in, and all affiliates or the lands BLM formerly administered,
including, but not limited to changes in: subsidiaries of any holder of, a grant or to another Federal agency, unless doing
(1) Mailing address; TUP, except for corporate stockholders, so would diminish your rights. If BLM
(2) Partners; determines your rights would be
(3) Financial conditions; or are jointly and severally liable to the
United States. diminished by such a transfer, BLM can
(4) Business or corporate status; and
(d) When BLM requests it, such as to (d) If BLM issues a grant or TUP to still transfer the land, but retain
update information or confirm that more than one holder, each is jointly administration of your grant or TUP
information you submitted before is and severally liable. under existing terms and conditions.
accurate. (e) By accepting the grant or TUP, you (b) If there is a proposal to transfer the
agree to fully indemnify or hold the BLM land your grant or TUP encumbers
§ 2886.13 If I hold a grant or TUP, for what United States harmless for liability, out of Federal ownership, BLM may,
am I liable? damage, or claims arising in connection after reasonable notice to you and in
(a) If you hold a grant or TUP, you are with your use and occupancy of the conformance with existing policies and
liable to the United States and to third right-of-way or TUP area. procedures:

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(1) Transfer the land subject to your stipulations of the grant, or if you provide you a reasonable opportunity to
grant or TUP. In this case, abandon the right-of-way. correct the violation or start or resume
administration of your grant or TUP, for (b) Subject to § 2886.11, BLM may use of the TUP area. The notice will also
the lands BLM formerly administered, is suspend or terminate your TUP if you provide you information on how to file
transferred to the new owner of the do not comply with applicable laws and a written request for reconsideration.
land; regulations or any terms, conditions, or (1) You may file a written request
(2) Transfer the land, but BLM retains stipulations of the TUP, or if you with the BLM office that issued the
administration of your grant or TUP; or abandon the TUP area. notice, asking for reconsideration of the
(3) Reserve to the United States the (c) A grant or TUP also terminates determination to suspend or terminate
land your grant or TUP encumbers, and when: your TUP. BLM must receive this
BLM retains administration of your (1) The grant or TUP contains a term request within 10 business days after
grant or TUP. or condition that has been met that you receive the notice.
(c) BLM or, if BLM no longer requires the grant or TUP to terminate; (2) BLM will provide you with a
administers the land, the new land (2) BLM consents in writing to your written decision within 20 business
owner may negotiate new grant or TUP request to terminate the grant or TUP; or days after receiving your request for
terms and conditions with you. (3) It is required by law to terminate. reconsideration. The decision will
(d) Your failure to use your right-of- include a finding of fact made by the
§ 2886.16 Under what conditions may BLM way for its authorized purpose for any
order an immediate temporary suspension next higher level of authority than that
continuous 2-year period creates a who made the suspension or
of my activities?
presumption of abandonment. BLM will termination determination. The decision
(a) Subject to § 2886.11, BLM can notify you in writing of this will also inform you whether BLM
order an immediate temporary presumption. You may rebut the suspended or terminated your TUP or
suspension of grant or TUP activities presumption of abandonment by cancelled the notice made under
within the right-of-way or TUP area to proving that you used the right-of-way paragraph (b) of this section.
protect public health or safety or the or that your failure to use the right-of- (3) If the decision is adverse to you,
environment. BLM can require you to way was due to circumstances beyond you may appeal it under § 2881.10 of
stop your activities before holding an your control, such as acts of God, war, this part.
administrative proceeding on the matter or casualties not attributable to you.
and may order immediate remedial (e) You may appeal a decision under § 2886.19 When my grant or TUP
action. this section under § 2881.10 of this part. terminates, what happens to any facilities
(b) BLM may issue the immediate on it?
temporary suspension order orally or in § 2886.18 How will I know that BLM (a) Subject to § 2886.11, after your
writing to you, your contractor or intends to suspend or terminate my grant
or TUP?
grant or TUP terminates, you must
subcontractor, or to any representative, remove any facilities within the right-of-
agent, or employee representing you or (a) Grants. When BLM determines way or TUP area within a reasonable
conducting the activity. BLM may take that it will suspend or terminate your time, as determined by BLM, unless
this action whether or not any action is grant under § 2886.17 of this subpart, it BLM instructs you otherwise in writing,
being or has been taken by other Federal will send you a written notice of this or termination is due to non-payment of
or state agencies. When you receive the determination. The determination will rent (see § 2885.17(c) of this part).
order, you must stop the activity provide you a reasonable opportunity to (b) After removing the facilities, you
immediately. BLM will, as soon as correct the violation, start your use, or must remediate and restore the right-of-
practical, confirm an oral order by resume your use of the right-of-way, as way or TUP area to a condition
sending or hand delivering to you or appropriate. In the notice BLM will state satisfactory to BLM, including the
your agent at your address a written the date by which you must correct the removal and clean-up of any hazardous
suspension order explaining the reasons violation or start or resume use of the materials.
for it. right-of-way.
(c) If you do not remove all facilities
(c) You may file a written request for (1) If you have not corrected the
within a reasonable period, as
permission to resume activities at any violation or started or resumed use of
determined by BLM, BLM may declare
time after BLM issues the order. In the the right-of-way by the date specified in
them to be the property of the United
request, give the facts supporting your the notice, BLM will refer the matter to
States. However, you are still liable for
request and the reasons you believe that the Office of Hearings and Appeals. An
the costs of removing them and for
BLM should lift the order. BLM must ALJ in the Office of Hearings and
remediating and restoring the right-of-
grant or deny your request within 5 Appeals will provide an appropriate
way or TUP area.
business days after receiving it. If BLM administrative proceeding under 5
does not respond within 5 business U.S.C. 554 and determine whether Subpart 2887—Amending, Assigning,
days, BLM has denied your request. You grounds for suspension or termination or Renewing MLA Grants and TUPs
may appeal the denial under § 2881.10 exist. No administrative proceeding is
of this part. required where the grant by its terms § 2887.10 When must I amend my
provides that it terminates on the application, seek an amendment of my
(d) The immediate temporary
occurrence of a fixed or agreed upon grant or TUP, or obtain a new grant or TUP?
suspension order is effective until you
receive BLM’s written notice to proceed condition, event, or time. (a) You must amend your application
with your activities. (2) BLM will suspend or terminate the or seek an amendment of your grant or
grant if the ALJ determines that grounds TUP when there is a proposed
§ 2886.17 Under what conditions may BLM exist for suspension or termination and substantial deviation in location or use.
suspend or terminate my grant or TUP? the suspension or termination is (b) The requirements to amend an
(a) Subject to § 2886.11, BLM may justified. application or a grant or TUP are the
suspend or terminate your grant if you (b) TUPs. When BLM determines that same as those for a new application,
do not comply with applicable laws and it will suspend or terminate your TUP, including paying processing and
regulations or any terms, conditions, or it will send you a written notice and monitoring fees and rent according to

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§§ 2884.12, 2885.23, 2885.19, and (b) BLM may modify the terms and (b) * * * The reimbursement of costs
2886.11 of this part. conditions of the grant at the time of shall be in accordance with the
(c) Any activity not authorized by renewal, and you must pay the provisions of §§ 2804.14 and 2805.16 of
your grant or TUP may subject you to processing fees (see § 2884.12 of this this chapter, except that any permit
prosecution under applicable law and to part) in advance. whose total rental is less than $250 shall
trespass charges under subpart 2888 of (c) The time and conditions for be exempt from reimbursement of costs
this part. processing applications for rights-of- requirements.
(d) Notwithstanding paragraph (a) of way, as described at § 2884.21 of this (c) * * * This payment shall be
this section, if you hold a pipeline grant part, apply to applications for renewals. determined in accordance with the
issued before November 16, 1973, and provisions of §§ 2804.14 and 2805.16 of
there is a proposed substantial deviation Subpart 2888—Trespass this chapter.
in location or use of the right-of-way, § 2888.10 What is trespass? * * * * *
you must apply for a new grant.
(a) Trespass is using, occupying, or
(e) BLM may ratify or confirm a grant PART 9230—TRESPASS
developing the public lands or their
that was issued before November 16,
resources without a required ■ 7. Revise the authority citation for part
1973, if we can modify the grant to
authorization or in a way that is beyond 9230 to read as follows:
comply with the Act and these
the scope and terms and conditions of
regulations. BLM and you must jointly Authority: R.S. 2478 and 43 U.S.C. 1740.
your authorization. Trespass is a
agree to any modification of a grant
prohibited act. ■ 8. Amend § 9239.7–1 by revising the
made under this paragraph. (b) Trespass includes acts or introductory paragraph to read as
§ 2887.11 May I assign my grant or TUP? omissions causing unnecessary or follows:
(a) With BLM’s approval, you may undue degradation to the public lands
or their resources. In determining § 9239.7–1 Public lands.
assign, in whole or in part, any right or
interest in a grant or TUP. whether such degradation is occurring, The filing of an application under part
(b) In order to assign a grant or TUP, BLM may consider the effects of the 2800, 2810, or 2880, of this chapter does
the proposed assignee, subject to activity on resources and land uses not authorize the applicant to use or
§ 2886.11 of this part, must file an outside the area of the activity. occupy the public lands for right-of-way
application and satisfy the same (c) BLM will administer trespass purposes, except as provided by the
procedures and standards as for a new actions for grants and TUPs as set forth definition of ‘‘Casual use’’ in § 2801.5(b)
grant or TUP, including paying in §§ 2808.10(c), and 2808.11 of this and by §§ 2804.29 and 2884.25 of this
processing fees (see § 2884.12 of this chapter, except that the rental chapter, until written authorization has
part). exemption provisions of part 2800 do been issued by the authorized officer.
(c) The assignment application must not apply to grants issued under this Any unauthorized occupancy or use of
also include: part. public lands or improvements for right-
(1) Documentation that the assignor (d) Other Federal agencies will of-way purposes constitutes a trespass
agrees to the assignment; and address trespass on non-BLM lands against the United States for which the
(2) A signed statement that the under their respective laws and trespasser is liable for costs, damages,
proposed assignee agrees to comply regulations. and penalties as provided in subpart
with and to be bound by the terms and § 2888.11 May I receive a grant if I am or
2808 and §§ 2812.1–3 and 2888.10 of
conditions of the grant or TUP that is have been in trespass? this chapter. No new permit, license,
being assigned, and all applicable laws Until you satisfy your liability for a authorization, or grant of any kind shall
and regulations. trespass, BLM will not process any be issued to a trespasser until:
(d) BLM will not recognize an applications you have pending for any * * * * *
assignment until we approve it in activity on BLM-administered lands. A
writing. BLM will approve the history of trespass will not necessarily PART 9260—LAW ENFORCEMENT—
assignment if doing so is in the public disqualify you from receiving a grant. In CRIMINAL
interest. BLM may modify the grant or order to correct a trespass, you must
TUP or add bonding and other ■ 9. Revise the authority citation for part
apply under the procedures described at 9260 to read as follows:
requirements, including terms and subpart 2884 of this part. BLM will
conditions, to the grant or TUP when process your application as if it were a Authority: 16 U.S.C. 4601–6a, 16 U.S.C.
approving the assignment. If BLM 670h, 16 U.S.C. 1246(i), 16 U.S.C. 1336, 43
new use. Prior unauthorized use does U.S.C. 315a, 43 U.S.C. 1733(a), 43 U.S.C.
approves the assignment, the benefits not create a preference for receiving a
and liabilities of the grant or TUP apply 1740, and Executive Order 11644, 37 FR
grant. 2877, 3 CFR, 1971–1975 Comp., p. 666.
to the new grant or TUP holder.
(e) The processing time and PART 2920—LEASES, PERMITS, AND ■ 10. Revise § 9262.1 to read as follows:
conditions described at § 2884.21 of this EASEMENTS
part apply to assignment applications. 9262.1 Penalties for unauthorized use,
■ 5. The authority citation for part 2920 occupancy, or development of public lands.
§ 2887.12 How do I renew my grant? continues to read as follows: Under section 303(a) of the Federal
(a) You must apply to BLM to renew Authority: 43 U.S.C. 1740. Land Policy and Management Act of
the grant at least 120 calendar days 1976 (43 U.S.C. 1733(a)) any person
before your grant expires. BLM will ■ 6. Amend § 2920.6 by revising the who knowingly and willfully violates
renew the grant if the pipeline is being second sentence of paragraph (b) and the the provisions of §§ 2808.10(a), 2812.1–
operated and maintained in accordance third sentence of paragraph (c) as 3, 2888.10, or 2920.1–2(a) of this
with the grant, these regulations, and follows: chapter, by using public lands without
the Act. If your grant has expired or the requisite authorization, may be tried
terminated, you must apply for a new § 2920.6 Reimbursement of costs. before a United States magistrate and
grant under subpart 2884 of this part. * * * * * fined no more than $1,000 or

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Federal Register / Vol. 70, No. 77 / Friday, April 22, 2005 / Rules and Regulations 21091

imprisoned for no more than 12 months,


or both.
[FR Doc. 05–7501 Filed 4–21–05; 8:45 am]
BILLING CODE 4310–84–P

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